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EXHIBIT 4.10
STOCK PURCHASE PLAN BUYBACK AGREEMENT
STOCK PURCHASE PLAN BUYBACK AGREEMENT, dated as of March 26, 1999
(the "Agreement"), by and among Universal Compression Holdings, Inc., a
Delaware corporation ("Holdings"), the persons listed on the signature page
hereto under the heading "Purchasers" and persons who have executed and
delivered, or execute and deliver in the future, an Instrument of Accession in
the form of Exhibit "A" hereto (such persons collectively referred to herein as
the "Purchasers").
WHEREAS, Holdings has adopted the Universal Compression Holdings, Inc.
Non-Qualified Stock Purchase Plan dated the date hereof (the "Purchase Plan"),
by which each eligible director and employee of Holdings and its participating
subsidiaries will be given an opportunity to purchase shares of the common
stock of Holdings, par value $.01 per share (the "Common Stock"), and shares of
the Series A Preferred Stock of Holdings, par value $.01 per share (the
"Preferred Stock"), each pursuant to the terms and conditions of the Purchase
Plan.
WHEREAS, in connection with such purchases, Holdings and the eligible
directors and employees purchased Common Stock and Preferred Stock under the
Purchase Plan (the "Purchasers") wish to set forth their understanding with
respect to the right of Holdings to repurchase Common Stock and/or Preferred
Stock acquired pursuant to the Purchase Plan in certain circumstances,
NOW, THEREFORE, the parties hereto agree as follows:
1. General. Except as provided in Sections 3, 4, 5 and 7 of the
Stockholders Agreement, dated as February 20, 1998, by and among Holdings and
the stockholders party thereto including, without limitation, the Purchasers,
(the "Stockholders Agreement"), each share of Common Stock and Preferred Stock
acquired by the Purchasers at any time may not be sold, disposed of or
otherwise transferred except to Holdings in accordance with this Agreement.
Each certificate representing shares of Common Stock and Preferred Stock
acquired by each Purchaser shall bear a legend to such effect. In the event
that any Purchaser, in accordance with the Stockholders Agreement, transfers all
or any shares of Common Stock or Preferred Stock to a person other than
Holdings, such transferee shall also be obligated to comply with the provisions
of this Agreement. The Common Stock and Preferred Stock are sometime
collectively referred to herein as the "Holdings Securities."
2. Call by Holdings. Within six months following any Purchaser's
termination of employment with Holdings and Universal Compression, Inc.,
whether such termination results from resignation by such Purchaser or
termination with or without cause of such Purchaser by Holdings or Universal
Compression, Inc. or by the death or disability of such Purchaser, Holdings
shall have the right, but not the obligation, to purchase from Purchaser, all
of the Holdings Securities owned by such Purchaser for an amount equal to:
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(a) in the case of Common Stock the product of (A) the Common Share
Value (valued as of the end of the month preceding such Purchaser's resignation
from or termination of employment) multiplied by (B) the number of shares of
Common Stock held by such Purchaser, and
(b) in the case of Preferred Stock the product of (A) the Preferred
Share Value (valued as of the end of the month preceding such Purchaser's
resignation from or termination of employment) multiplied by (B) the number of
shares of Preferred Stock held by such Purchaser.
If such purchase of Holdings Securities by Holdings is prohibited
pursuant to the terms of any agreement to which Holdings is a party, the period
during which Holdings may make such purchase shall be extended by an additional
six months from the expiration of the initial six-month period.
3. Definitions. For purpose of this Agreement:
(i) "Common Share Value" shall mean the quotient of (i) the amount
equal to the excess, if any, of the Holdings Equity Value over the Holdings
Preferred Value divided by (ii) the number of shares of Common Stock
outstanding on a fully diluted basis.
(ii) "EBITDA" shall mean, for any period, the amount equal to: (a) the
net income (or net loss) of Holdings and its subsidiaries during such period
after deduction of all expenses, taxes and other charges, determined in
accordance with generally accepted accounting principles, after eliminating
therefrom all extraordinary items of income and expense (including the
elimination or any expense reported on the financial statements of Holdings or
any subsidiary for such period in respect of the management fee owed to Xxxxxx
Xxxxxx, Inc. ("CHI") pursuant to the Management Agreement between CHI, Holdings
and Universal Compression, Inc., dated as of February 20, 1998); plus (b) to
the extent deducted from net income, dividends on Holdings' Preferred Stock;
plus (c) any provision for (or less any benefit from) income taxes included in
the determination of (a) above; plus (d) depreciation, depletion and
amortization; plus (e) the expenses of Holdings and its subsidiaries charged to
income for interest on indebtedness (including the current portion thereof),
determined in accordance with generally accepted accounting principles,
(iii) "Holdings Equity Value" shall mean, as of any date, an amount
equal to EBITDA for the four immediately preceding fiscal quarters, multiplied
by seven, minus the sum of (a) the amount of Holdings' indebtedness for
borrowed money (including any obligation owed in respect of capitalized leases)
(determined in accordance with generally accepted accounting principles as set
forth in Holdings' most recent quarterly balance sheet, including current and
long term portions) and accrued interest thereon, and (b) the amount of the
liquidation preference of any preferred stock (other than Preferred Stock)
outstanding and accrued dividends thereon.
(iv) "Holdings Preferred Value" shall mean the Preferred Share Value
multiplied by the number of shares of Preferred Stock outstanding on a fully
diluted basis.
(v) "Preferred Share Value" shall mean the lesser of (a) the Holdings
Equity Value divided by the number of shares of Preferred Stock outstanding on
a fully diluted basis and
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(b) the liquidation value per share of Preferred Stock assigned to the
Preferred Stock, plus all accrued and unpaid dividends thereon, if any.
4. Payment. The purchase of Holdings Securities by Holdings pursuant
to the foregoing provisions shall be paid in cash, to the extent permitted
under the loan agreements and debt instruments relating to Holdings or any of
its subsidiaries, or, to the extent cash payments are not permitted thereunder,
by means of a subordinated payment-in-kind promissory note issued by Holdings
bearing interest, payable annually, at the lowest interest rate required to
avoid imputed interest, which note shall be repaid as soon as permitted.
5. 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.
6. Miscellaneous Provisions.
(a) Assignability; Binding Effect. Except as otherwise provided in
this Section, no right under this Agreement shall be assignable and any
attempted assignment in violation of this provision shall be void. Holdings
shall have the right to assign its Rights and obligations hereunder to any
successor entity (including any entity acquiring substantially all of the
assets of Holdings), whereupon references herein to Holdings shall be deemed to
be to such successor. 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, at:
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
(ii) if to a Purchaser, to it at the address set forth on the
respective signature page hereto or Instrument of Accession, as the case may be.
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(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 Delaware 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 county or district
courts in Xxxxxx County, Texas or in the United States District Court for the
Southern District of Texas, Houston Division. 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 Texas or the Southern District of Texas 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 each party hereto, 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.
(e) Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretations of
the Agreement.
(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 remedy to
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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 county or
district courts in Xxxxxx County, Texas or in the United States District Court
for the Southern District of Texas, Houston Division, 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.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement as of the day and year first above written.
[SIGNATURE BLOCKS OMITTED]
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Exhibit "A"
STOCK PURCHASE PLAN BUYBACK AGREEMENT
INSTRUMENT OF ACCESSION
The undersigned, ____________________, as a condition precedent to
becoming the owner or holder of record of _______________(___) shares of Common
Stock, par value $0.01 per share ("Common Stock"), of Universal Compression
Holdings, Inc., a Delaware corporation ("Holdings"), and _______________(___)
shares of Preferred Stock, par value $.01 per share, of Holdings pursuant to
the Universal Compression Holdings, Inc. Non-Qualified Stock Purchase Plan,
hereby agrees to become a party to and bound by that certain Stock Purchase
Plan Buyback Agreement, dated as of March 26, 1999, by and among Holdings and
certain stockholders of Holdings. This Instrument of Accession shall take
effect and shall become an integral part of the said Stock Purchase Plan
Buyback Agreement immediately upon execution and delivery to Holdings of this
Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly
executed by or on behalf of the undersigned as of the date below written.
Signature:
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Name:
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Address:
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Date:
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Accepted:
By:
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Date:
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