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EXHIBIT 9.6
VOTING AGREEMENT
This VOTING AGREEMENT, dated as of April 28, 2000 (the
"Agreement"), by and among Universal Compression Holdings, Inc. ("Holdings"),
Xxxxxx Xxxxxx Partners III, L.P., a Delaware limited partnership ("CHPIII," and
together with related accounts or funds managed by Xxxxxx Xxxxxx, Inc. ("CHI")
or an Affiliate of CHI, referred to herein collectively as "CHP"), and Energy
Spectrum Partners LP, a Delaware limited partnership ("Energy").
WHEREAS, Holdings and Energy are parties to a certain Stock
Purchase Agreement, dated as of April 4, 2000 (the "Purchase Agreement"),
whereby Energy acquired from Holdings and Holdings issued to Energy (i) the
number of shares of Common Stock, par value $.01 per share ("Common Stock") of
Holdings and (ii) the number of shares of Series A Preferred Stock, par value
$.01 per share ("Preferred Stock") of Holdings set forth on Annex I.
WHEREAS, in connection with such purchase, CHPIII, Holdings
and Energy hereby wish to set forth their understanding with respect to the
manner in which Energy will exercise its voting rights as a stockholder of
Holdings in matters requiring the vote of the stockholders of Holdings.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions.
"Affiliate" shall, as to Holdings or any other specified
Person, mean (i) any Person directly or indirectly controlling, controlled by or
under direct or indirect common control with Holdings (or other specified
Person), and (ii) any Person, directly or indirectly, having Beneficial
Ownership of at least 10% of any class of outstanding capital stock or other
evidence of Beneficial Ownership in Holdings or such other Person; provided,
however, that no holder of Holdings Securities shall by reason of such holding
be an Affiliate of Holdings or any of its Subsidiaries for purposes of this
Agreement, and (iii) any employee of CHI or Affiliates of CHI.
"Beneficial Ownership" shall be interpreted herein to have the
same meaning as set forth in Section 13(d) of the Exchange Act.
"Change in Control" shall mean any of the following: (i) CHP
and the Affiliates of CHP shall cease to have the Beneficial Ownership, directly
or indirectly, of equity securities of Holdings representing at least 30% (until
Holdings' initial public offering of Common Stock has been consummated or, if no
Change in Control has occurred prior thereto, 15% thereafter, in each case) of
the total combined ordinary voting power of all equity securities of Holdings;
(ii) the sole general partner of CHP III shall be neither Xxxxxx Xxxxxx Partners
III GP, Inc. or an entity controlling, controlled by or under common control
with Xxxxxx Xxxxxx Partners III GP, Inc.; or (iii) all or substantially all the
assets of Universal Compression, Inc. and its subsidiaries are directly or
through transfer of equity interests transferred or otherwise disposed of in one
or a series of related transactions to an entity in which CHP and its Affiliates
fail to own the
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foregoing percentages, as appropriate, and after which Holdings ceases to own
directly of indirectly substantially all equity interests of each entity
acquiring such assets.
"CHP" shall have the meaning set forth in the first paragraph
hereof.
"CHPIII" shall have the meaning set forth in the first
paragraph hereof.
"CHI" shall have the meaning set forth in the first paragraph
hereof.
"Common Stock" shall have the meaning set forth in the recital
hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and all rules and regulations promulgated thereunder.
"Extraordinary Event" shall have the meaning set forth in
Section 2.
"Holdings" shall have the meaning set forth in the first
paragraph hereof.
"Holdings Securities" shall mean the Common Stock and the
Preferred Stock as collectively referred to herein and any and all Shares of
Holdings that may be issued in respect of, in exchange for or in the
substitution of any Shares.
"Preferred Stock" shall have the meaning set forth in the
recital hereto.
"Qualified IPO" means one or more public offerings of Common
Stock, the aggregate proceeds of which (after underwriting discounts or
commissions but before the expenses of the offering) are at least $50 million
pursuant to a registration statement filed with, and declared effective by, the
Securities Exchange Commission, upon the consummation of which the common stock
is listed on a United States securities exchange or included in the NASDAQ Stock
Market System, other than a registration statement on Form S-4 or S-8 (or its
equivilant).
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations promulgated thereunder.
"Shares" shall mean the shares of Common Stock and Preferred
Stock now owned of record or beneficially by Energy or that may be so owned in
the future hereafter from time to time by Energy.
"Subsidiary" shall mean any Person of which Holdings or other
specified Person now or hereafter shall at the time own directly or indirectly
at least a majority of the outstanding capital stock (or other evidence of
Beneficial Ownership) entitled to vote generally or at least a majority of the
partnership, joint venture or similar interest, or in which Holdings or other
specified Person is a general partner or joint venturer without limited
liability.
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2. Agreement to Vote Shares. From and after the date of this
Agreement until the earlier of the occurrence of a Change in Control or a
Qualified IPO, in the event that there shall be presented for a vote by the
holders of Holdings Securities at any regular or special meeting of the
stockholders of Holdings, or in any written consent executed by holders of
Holdings Securities in lieu of such a meeting of stockholders, any matter,
proposition or proposal relating to any of:
(a) (i) an increase or decrease in the authorized capital
of Holdings, (ii) the creation or authorization of any class of capital stock of
Holdings, (iii) the issuance or sale of any shares of capital stock or rights to
acquire capital stock of Holdings or any subsidiary of Holdings (by conversion,
exercise of a warrant or option or otherwise);
(b) any amendment of the certificate of incorporation or
by-laws of Holdings;
(c) the incurrence of any indebtedness for borrowed money;
(d) the appointment, election, termination or removal of
any officer or director of Holdings;
(e) the declaration or payment of any dividend or other
distribution to the stockholders of Holdings;
(f) (i) entering into any transaction of merger,
consolidation or amalgamation, or liquidation, winding up or dissolution, (ii)
the conveyance, sale, lease, transfer or other disposition of, in a transaction
or related series of transactions, substantially all of Holdings' or any of its
Subsidiaries' property, business or assets, (iii) acquisition by purchase or
otherwise of all of the capital stock or other evidences of Beneficial Ownership
of Holdings or any of its Subsidiaries, or (iv) any recapitalization or similar
restructuring transaction;
(g) the acquisition, directly or indirectly, of a
significant amount of assets other than in the ordinary course of business;
(h) the sale or disposition of, directly or indirectly, a
significant amount of assets other than in the ordinary course of business;
(i) adoption of any stock option plan for employees or any
material changes in any such stock option plan or any other executive
compensation plan of Holdings or any of its Subsidiaries;
(j) any change in the annual compensation of any officer of
Holdings;
(k) any other extraordinary transaction, including any
transaction that changes or would change the nature of the business of Holdings
or its Subsidiaries; and
(l) any other proposal to be voted on or consented to by
stockholders of Holdings;
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Energy agrees (and, as a condition to its transfer of any Holdings Securities to
a Person not otherwise a party to this Agreement) to vote and execute written
consents for all shares of Holdings Securities which it is or becomes entitled
to vote in the same proportion for and against such matter, proposition or
proposal as CHPIII shall vote, or execute written consents with respect to, its
shares of Holdings Securities with respect to such matter, proposition or
proposal.
3. Further Action. Each party hereto agrees to execute and
deliver any instrument and take any action that may reasonably be requested by
any other party for the purpose of effectuating the provisions of this
Agreement.
4. Miscellaneous Provisions.
(a) Assignment; Binding Effect. Except as otherwise
provided in this Agreement, no right under this Agreement shall be assignable
and any attempted assignment in violation of this provision shall be void. This
Agreement, and the rights and obligations of the parties hereunder, shall be
binding upon and inure to the benefit of any and all successors, permitted
assigns, personal representatives and all other legal representatives, in
whatsoever capacity, by operation of law or otherwise, of the parties hereto, in
each case with the same force and effect as if the foregoing persons were named
herein as parties hereto.
(b) Notices. Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, telecopied with confirmed receipt, sent by certified, registered, or
express mail, postage prepaid, or sent by a national next-day delivery service
to the parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice, and shall be deemed given when so
delivered personally or telecopied, or if mailed, 2 days after the date of
mailing, or, if by national next-day delivery service, on the day after delivery
to such service as follows:
(i) If to Holdings, to it at the following address:
Xxxxxx Xxxxxx, Inc.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Puellage
(ii) If to CHPIII or the other entities or persons
constituted within CHP, to any of them at the following
address:
Xxxxxx Xxxxxx Partners III, L.P.
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Puellage
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
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Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
(iii) If to Energy, to it at the following address:
c/o Energy Spectrum Partners LP
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxxx Xxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
or at such other address or addresses as either party hereto shall have
specified by notice in writing to the other party (provided, that such notice of
change of address shall be deemed to have been duly given only when actually
received).
(c) Applicable Law; Consent to Jurisdiction. This Agreement
and the validity and performance of the terms hereof shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of law or choice of law. The parties hereto hereby agree
that all actions or proceedings arising directly or indirectly from or in
connection with this Agreement shall be litigated only in the Supreme Court of
the State of New York or the United States District Court for the Southern
District of New York located in New York County, New York. To the extent
permitted by applicable law, the parties hereto consent to the jurisdiction and
venue of the foregoing courts and consent that any process or notice of motion
or other application to either of said courts or a judge thereof may be served
inside or outside the State of New York or the Southern District of New York by
registered mail, return receipt requested, directed to such party at its address
set forth in this Agreement (and service so made shall be deemed complete five
days after the same has been posted as aforesaid) or by personal service or in
such other manner as may be permissible under the rules of said courts.
(d) Entire Agreement; Amendments and Waivers. This
Agreement sets forth the entire understanding of the parties with respect to the
subject matter hereof. The failure of any party to seek redress for the
violation of or to insist upon the strict performance of any term of this
Agreement shall not constitute a waiver of such term and such party shall be
entitled to enforce such term without regard to such forbearance. This Agreement
may be amended only by the written consent of Holdings, CHPIII, and Energy, and
each party hereto may take any action herein prohibited or omit to take action
herein required to be performed by it, and any breach of or compliance with any
covenant, agreement, warranty or representation may be waived only by the
written waiver of the party against whom such action or inaction may negatively
affect, but, in any case, such consent or waiver shall only be effective in the
specific instance and for the specific purpose for which given.
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(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(f) Severability. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction or any foreign federal, state, county or local government
or any other governmental, regulatory or administrative agency or authority to
be invalid, void, unenforceable or against public policy for any reason, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
(g) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart.
(h) Specific Performance. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto shall and do
hereby waive the defense in any action for specific performance that a remedy at
law would be adequate and that the parties hereto, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of this Agreement in any action instituted in the
Supreme Court of the State of New York or the United States District Court for
the Southern District of New York, or, in the event such courts shall not have
jurisdiction of such action, in any court of the United States or any state
thereof having subject matter jurisdiction of such action.
(i) Survival of Covenants. All covenants, agreements,
representations and warranties made herein or in any other document referred to
herein or delivered to a party pursuant hereto or in connection herewith shall
survive the execution and delivery to such party of this Agreement and the
Holdings Securities.
(j) Legends. All certificates evidencing Common Stock and
Preferred Stock held by Energy shall bear a legend to the effect that the
holders thereof are subject to the voting obligations as set forth in this
Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
XXXXXX XXXXXX PARTNERS III, L.P.
BY: XXXXXX XXXXXX INC.,
its Investment Manager
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
UNIVERSAL COMPRESSION HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Executive Vice President
ENERGY SPECTRUM PARTNERS LP
By: Energy Spectrum Capital LP,
its general partner
By: Energy Spectrum LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Vice President
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ANNEX I
Name Number of Shares
---- ----------------
Common Preferred
Stock Stock
----- -----
Energy Spectrum Partners LP 17,201 68,804
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