-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QYucf6K82sZZUVNb46WICafKwGGweE/+tJJ9G24Bpu9L1S4rnS7t4IW76X+APqEX Nm5Fo2nBoEwNgjQBNJp+sQ== 0000950129-01-001584.txt : 20010326 0000950129-01-001584.hdr.sgml : 20010326 ACCESSION NUMBER: 0000950129-01-001584 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20010320 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20010323 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNIVERSAL COMPRESSION HOLDINGS INC CENTRAL INDEX KEY: 0001057234 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EQUIPMENT RENTAL & LEASING, NEC [7359] IRS NUMBER: 133989167 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-15843 FILM NUMBER: 1576861 BUSINESS ADDRESS: STREET 1: 4440 BRITTMOORE RD CITY: HOUSTON STATE: TX ZIP: 77041 BUSINESS PHONE: 7134664103 MAIL ADDRESS: STREET 1: 4440 BRITTMOORE RD CITY: HOUSTON STATE: TX ZIP: 77041 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNIVERSAL COMPRESSION INC CENTRAL INDEX KEY: 0001057233 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EQUIPMENT RENTAL & LEASING, NEC [7359] IRS NUMBER: 741282680 STATE OF INCORPORATION: TX FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 333-48279 FILM NUMBER: 1576862 BUSINESS ADDRESS: STREET 1: 4440 BRITTMOORE RD CITY: HOUSTON STATE: TX ZIP: 77041 BUSINESS PHONE: 7134664103 MAIL ADDRESS: STREET 1: 4440 BRITTMOORE RD CITY: HOUSTON STATE: TX ZIP: 77041 8-K 1 h85283e8-k.txt UNIVERSAL COMPRESSION HOLDINGS, INC. - 3/20/01 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): March 20, 2001 UNIVERSAL COMPRESSION HOLDINGS, INC. UNIVERSAL COMPRESSION, INC. (Exact names of registrants as specified in their charters) DELAWARE 001-15843 13-3989167 TEXAS 333-48279 74-1282680 (States or other (IRS Employer jurisdictions of (Commission File Identification incorporation) Numbers) Nos.) 4440 BRITTMOORE ROAD, HOUSTON, TEXAS 77041 (Address of principal executive offices) (Zip Code) (713) 335-7000 (Registrants' telephone number, including area code) 2 Item 5. Other Events Filing of a Registration Statement on Form S-4. In connection with our financing arrangements entered into concurrently with our acquisition of Weatherford Global Compression Services, L.P. and certain related entities ("Weatherford Global") in February 2001, Universal Compression Holdings, Inc., a Delaware corporation ("UCH"), entered into a Registration Rights Agreement dated as of February 9, 2001 by and among BRL Universal Equipment 2001 A, L.P., BRL Universal Equipment Corp. (collectively, the "Issuers"), UCH, Universal Compression, Inc. ("UCI"), Deutsche Banc Alex. Brown Inc., First Union Securities, Inc., Goldman Sachs & Co., Banc One Capital Markets, Inc. and Scotia Capital (USA), Inc. Pursuant to the terms of the Registration Rights Agreement, on March 20, 2001, the Issuers, UCH and UCI filed a Registration Statement on Form S-4 with the Securities and Exchange Commission (the "SEC") with respect to the registration of the issuance by the Issuers' of their new 8 7/8% senior secured notes due 2008 (the "New Notes") and our related lease and guarantee obligations. The New Notes will be issued in exchange for up to all of the Issuers' existing 8 7/8% senior secured notes, $350,000,000 aggregate principal amount outstanding (the "Old Notes"), which were issued in a private placement transaction pursuant to Rule 144A under the Securities Act. The terms of the New Notes to be issued in the exchange are substantially identical to the terms of the Old Notes, except that the New Notes do not restrict transfer and will be issued free of any covenants regarding exchange and registration rights. The Registration Statement includes, among other things, certain updated unaudited pro forma combined condensed financial information in connection with the Weatherford Global acquisition and related financing transactions, and updated business information for December 31, 2000. The unaudited pro forma combined condensed financial information should be read in conjunction with the historical financial statements and accompanying disclosures included in the Registration Statement, as well as our other filings with the SEC. The Registration Statement is incorporated herein by reference. The Registration Statement has not yet become effective. The New Notes may not be sold nor may offers to buy be accepted prior to the time the Registration Statement becomes effective. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of the New Notes in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state. Statements about our outlook and all other statements in this release other than historical facts are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements rely on a number of assumptions concerning future events and are subject to a number of uncertainties and factors, many of which are beyond our control, that could cause our actual results to differ materially from such statements. While we believe that the assumptions concerning future events are reasonable, there are inherent difficulties in predicting certain important factors that could impact our future performance. Such risks and uncertainties include, but are not limited to, (1) failure to consummate acquisitions or integrate acquired businesses (including Weatherford Global and IEW Compression, Inc.) and businesses that we may acquire in the future, (2) conditions in the -2- 3 oil and gas industry, including the demand for natural gas as well as impacts from the price of natural gas and oil, (3) competition among the various providers of contract compression services, (4) changes in safety and environmental regulations pertaining to the production and transportation of natural gas, (5) changes in economic or political conditions in the markets in which we operate, (6) introduction of competing technologies by other companies, (7) the ability to retain and grow our customer base, (8) employment workforce factors, including loss of key employees, and (9) liability claims related to the use of the products and services. These factors, when applicable, are discussed in our filings with the Securities and Exchange Commission, copies of which are available to the public. We disclaims any intention or obligation to revise any forward-looking statements, whether as a result of new information, future events, or otherwise. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits (c) Exhibits Exhibit No. Description 4.1 Indenture, dated as of February 9, 2001, between BRL Universal Compression Funding I, L.P., Issuer, and Wells Fargo Bank Minnesota, National Association, Indenture Trustee, with respect to the ABS operating lease facility (incorporated by reference to Exhibit 4.10 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 4.2 Series 2001-1 Supplement, dated as of February 9, 2001, to Indenture dated as of February 9, 2001, between BRL Universal Compression Funding I, L.P., Issuer, and Wells Fargo Bank Minnesota, National Association, Indenture Trustee, with respect to the ABS operating lease facility, including the Form of Note as an exhibit thereto (incorporated by reference to Exhibit 4.11 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.1 Equipment Lease Agreement with respect to the senior secured notes operating lease facility, dated as of February 9, 2001, between BRL Universal Equipment 2001 A, L.P., as Lessor, and Universal Compression, Inc., as Lessee (incorporated by reference to Exhibit 10.2 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.2 Tranche B Loan Agreement, dated as of February 9, 2001, among BRL Universal Equipment 2001 A, L.P., as Borrower, Bankers Trust Company, as Administrative Agent and Collateral Agent, and The Tranche B Lenders (incorporated by reference to Exhibit 10.4 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.3 Master Equipment Lease Agreement, with respect to the ABS operating lease facility, dated as of February 9, 2001, between BRL Universal Compression -3- 4 Funding I, L.P., as Head Lessor and UCO Compression LLC, as Head Lessee (incorporated by reference to Exhibit 10.5 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.4 Senior Secured Revolving Credit Agreement, dated as of February 9, 2001, among Universal Compression, Inc., as Borrower, First Union National Bank, as Administrative Agent, Bank One, N.A., as Syndication Agent, and the lenders signatory thereto (incorporated by reference to Exhibit 10.6 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.5 Management Agreement dated February 9, 2001, among Universal Compression, Inc., UCO Compression LLC and BRL Universal Compression Funding I, L.P. (incorporated by reference to Exhibit 10.10 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.6 Guaranty made by Universal Compression Holdings, Inc. for the benefit of UCO Compression LLC, BRL Universal Compression Funding I, L.P. and Wells Fargo Bank National Association, dated as of February 9, 2001 (incorporated by reference to Exhibit 10.11 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.7 Form of Indemnification Agreements for each of Uriel E. Dutton, Curtis W. Huff and Edmund P. Segner, III (incorporated by reference to Exhibit 10.27 of Amendment No. 1 dated as of May 3, 2000 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-1 (File No. 333-34090)). 10.8* Indemnification Agreement dated as February 9, 2001 by and between Bernard J. Duroc-Danner and Universal Compression Holdings, Inc. 10.9* Form of Agreement for each of Stephen A. Snider and Mark L. Carlton. - ----------- * Filed herewith -4- 5 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized. UNIVERSAL COMPRESSION HOLDINGS, INC. UNIVERSAL COMPRESSION, INC. (Registrants) Date: March 22, 2001 By: /s/ RICHARD W. FITZGERALD -------------------------------------- Richard W. FitzGerald Senior Vice President and Chief Financial Officer -5- 6 EXHIBIT INDEX Exhibit No. Description ----------- ------------ 4.1 Indenture, dated as of February 9, 2001, between BRL Universal Compression Funding I, L.P., Issuer, and Wells Fargo Bank Minnesota, National Association, Indenture Trustee, with respect to the ABS operating lease facility (incorporated by reference to Exhibit 4.10 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 4.2 Series 2001-1 Supplement, dated as of February 9, 2001, to Indenture dated as of February 9, 2001, between BRL Universal Compression Funding I, L.P., Issuer, and Wells Fargo Bank Minnesota, National Association, Indenture Trustee, with respect to the ABS operating lease facility, including the Form of Note as an exhibit thereto (incorporated by reference to Exhibit 4.11 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.1 Equipment Lease Agreement with respect to the senior secured notes operating lease facility, dated as of February 9, 2001, between BRL Universal Equipment 2001 A, L.P., as Lessor, and Universal Compression, Inc., as Lessee (incorporated by reference to Exhibit 10.2 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.2 Tranche B Loan Agreement, dated as of February 9, 2001, among BRL Universal Equipment 2001 A, L.P., as Borrower, Bankers Trust Company, as Administrative Agent and Collateral Agent, and The Tranche B Lenders (incorporated by reference to Exhibit 10.4 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.3 Master Equipment Lease Agreement, with respect to the ABS operating lease facility, dated as of February 9, 2001, between BRL Universal Compression Funding I, L.P., as Head Lessor and UCO Compression LLC, as Head Lessee (incorporated by reference to Exhibit 10.5 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.4 Senior Secured Revolving Credit Agreement, dated as of February 9, 2001, among Universal Compression, Inc., as Borrower, First Union National Bank, as Administrative Agent, Bank One, N.A., as Syndication Agent, and the lenders signatory thereto (incorporated by reference to Exhibit 10.6 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). -6- 7 10.5 Management Agreement dated February 9, 2001, among Universal Compression, Inc., UCO Compression LLC and BRL Universal Compression Funding I, L.P. (incorporated by reference to Exhibit 10.10 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.6 Guaranty made by Universal Compression Holdings, Inc. for the benefit of UCO Compression LLC, BRL Universal Compression Funding I, L.P. and Wells Fargo Bank National Association, dated as of February 9, 2001 (incorporated by reference to Exhibit 10.11 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-4 dated March 20, 2001). 10.7 Form of Indemnification Agreements for each of Uriel E. Dutton, Curtis W. Huff and Edmund P. Segner, III (incorporated by reference to Exhibit 10.27 of Amendment No. 1 dated as of May 3, 2000 to Universal Compression Holdings, Inc.'s Registration Statement on Form S-1 (File No. 333-34090)). 10.8* Indemnification Agreement dated as February 9, 2001 by and between Bernard J. Duroc-Danner and Universal Compression Holdings, Inc. 10.9* Form of Agreement for each of Stephen A. Snider and Mark L. Carlton. - ----------- * Filed herewith -7- EX-10.8 2 h85283ex10-8.txt INDEMNIFICATION AGREEMENT DATED 2/9/01 1 EXHIBIT 10.8 INDEMNIFICATION AGREEMENT This INDEMNIFICATION AGREEMENT made and entered into effective as of February 9, 2001("Agreement"), by and between UNIVERSAL COMPRESSION HOLDINGS, INC., a Delaware corporation ("Company"), and Bernard J. Duroc-Danner ("Indemnitee"). WITNESSETH: WHEREAS, highly skilled and competent persons are becoming more reluctant to serve public corporations as directors or officers unless they are provided with adequate protection through insurance and indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation; and WHEREAS, uncertainties relating to indemnification have increased the difficulty of attracting and retaining such persons; and WHEREAS, the Board of Directors has determined that the inability to attract and retain such persons is detrimental to the best interests of the Company's stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future; and WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify Indemnitee to the fullest extent permitted by applicable law so that Indemnitee will serve or continue to serve the Company free from undue concern that Indemnitee will not be so indemnified; and WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified; NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows: Section 1. Services by Indemnitee. Indemnitee agrees to continue to serve as a director and/or officer of Universal Compression, Inc. ("Universal"), a wholly-owned subsidiary of the Company. This Agreement does not create or otherwise establish any right on the part of Indemnitee to be and continue to be nominated to be a director and/or officer of Universal or the Company and does not create an employment contract between Universal or the Company and Indemnitee. Section 2. Indemnification. The Company shall indemnify Indemnitee to the fullest extent permitted by applicable law in effect on the date hereof or as such laws may from time to time be amended. Without diminishing the scope of the indemnification provided by this Section 2, the rights of indemnification of Indemnitee provided hereunder shall include but shall not be limited to those rights, except to the extent expressly prohibited by applicable law. Section 3. Action or Proceeding Other Than an Action by or in the Right of the Company. Indemnitee shall be entitled to the indemnification rights provided in this Section 3 if Indemnitee is a party or is threatened to be made a party to any threatened, pending or 1 2 completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, other than an action by or in the right of the Company, by reason of the fact that Indemnitee is or was a director, officer, agent, or fiduciary of the Company or is or was serving at the request of the Company as a director, officer, agent, or fiduciary of Universal or any other entity or by reason of anything done or not done by him or her in any such capacity. Pursuant to this Section 3, Indemnitee shall be indemnified against expenses (including attorneys' fees and disbursements), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with such action, suit or proceeding (including, but not limited to, the investigation, defense or appeal thereof), if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of Universal or the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Section 4. Actions by or in the Right of the Company. Indemnitee shall be entitled to the indemnification rights provided in this Section 4 if Indemnitee is a person who was or is made a party or is threatened to be made a party to any threatened, pending or completed action or suit brought by or in the right of the Company to procure a judgment in its favor by reason of the fact that Indemnitee is or was a director, officer, agent, or fiduciary of the Company or is or was serving at the request of the Company as a director, officer, agent, or fiduciary of Universal or any other entity by reason of anything done or not done by Indemnitee in any such capacity. Pursuant to this Section 4 Indemnitee shall be indemnified against expenses (including attorneys' fees and disbursements) actually and reasonably incurred by Indemnitee in connection with such action or suit (including, but not limited to, the investigation, defense, settlement or appeal thereof) if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of Universal or the Company; provided, however, that no such indemnification shall be made in respect of any claim, issue or matter as to which applicable law expressly prohibits such indemnification by reason of an adjudication of liability of Indemnitee to the Company, unless, and only to the extent that, the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite such adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification for such expenses as such court shall deem proper. Section 5. Indemnification for Expenses of Successful Party. Notwithstanding the other provisions of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any action, suit or proceeding referred to in Section 3 or 4 hereof, or in defense of any claim, issue or matter therein, Indemnitee shall be indemnified against all expenses (including attorneys' fees and disbursements) actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith. Section 6. Indemnification for Expenses of a Witness. To the extent that Indemnitee is, by reason of Indemnitee's Corporate Status (as hereinafter defined), a witness in any proceeding, Indemnitee shall be indemnified by the Company against all expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith. Section 7. Partial Indemnification. If Indemnitee is only partially successful in the defense, investigation, settlement or appeal of any action, suit, investigation or proceeding described in Section 3 or 4 hereof, and as a result is not entitled under Section 5 hereof to 2 3 indemnification by the Company for the total amount of the expenses (including attorneys' fees and disbursements), judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by Indemnitee, the Company shall nevertheless indemnify Indemnitee, as a matter of right pursuant to Section 5 hereof, to the extent Indemnitee has been partially successful. Section 8. Determination of Entitlement to Indemnification. Upon written request by Indemnitee for indemnification pursuant to Section 3 or 4 hereof, the entitlement of the Indemnitee to indemnification pursuant to the terms of this Agreement shall be determined by the following person or persons who shall be empowered to make such determination: (a) the Board of Directors of the Company by a majority vote of the Disinterested Directors (as hereinafter defined) even if less than a quorum; or (b) if such vote is not obtainable or, even if obtainable, if such Disinterested Directors so direct by majority vote, by Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; or (c) by the stockholders. Such Independent Counsel shall be selected by the Board of Directors and approved by Indemnitee. Upon failure of the Board to so select such Independent Counsel or upon failure of Indemnitee to so approve, such Independent Counsel shall be selected by the Chancellor of the State of Delaware or such other person as such Chancellor shall designate to make such selection. Such determination of entitlement to indemnification shall be made not later than 60 days after receipt by the Company of a written request for indemnification. Such request shall include documentation or information which is necessary for such determination and which is reasonably available to Indemnitee. Any expenses (including attorneys' fees) incurred by Indemnitee in connection with Indemnitee's request for indemnification hereunder shall be borne by the Company. The Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom irrespective of the outcome of the determination of Indemnitee's entitlement to indemnification. If the person making such determination shall determine that Indemnitee is entitled to indemnification as to part (but not all) of the application for indemnification, such person shall reasonably prorate such partial indemnification among such claims, issues or matters. Section 9. Presumptions and Effect of Certain Proceedings. The Secretary of the Company shall, promptly upon receipt of Indemnitee's request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification hereunder and the Company shall have the burden of proof in the making of any determination contrary to such presumption. If the person or persons so empowered to make such determination shall have failed to make the requested indemnification within 60 days after receipt by the Company of such request, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent actual and material fraud in the request for indemnification. The termination of any action, suit, investigation or proceeding described in Section 3 or 4 hereof by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself: (a) create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful; or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein. 3 4 Section 10. Advancement of Expenses. All reasonable expenses incurred by Indemnitee (including attorneys' fees, retainers and advances of disbursements required of Indemnitee) shall be paid by the Company in advance of the final disposition of such action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, at the request of Indemnitee within twenty days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time. Indemnitee's entitlement to such expenses shall include those incurred in connection with any proceeding by Indemnitee seeking an adjudication or award in arbitration pursuant to this Agreement. Such statement or statements shall reasonably evidence the expenses incurred by Indemnitee in connection therewith and shall include or be accompanied by an undertaking by or on behalf of Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified against such expenses and costs by the Company as provided by this Agreement or otherwise. The Company shall have the burden of proof in any determination under this Section 10. Section 11. Remedies of Indemnitee in Cases of Determination Not to Indemnify or to Advance Expenses. In the event that a determination is made that Indemnitee is not entitled to indemnification hereunder or if payment has not been timely made following a determination of entitlement to indemnification pursuant to Sections 8 and 9, or if expenses are not advanced pursuant to Section 10, Indemnitee shall be entitled to a final adjudication in the Delaware Court of Chancery, first, and then in any other court of competent jurisdiction of Indemnitee's entitlement to such indemnification or advance. Alternatively, Indemnitee, at Indemnitee's option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the rules of the American Arbitration Association, such award to be made within sixty days following the filing of the demand for arbitration. The Company shall not oppose Indemnitee's right to seek any such adjudication or award in arbitration or any other claim. Such judicial proceeding or arbitration shall be made de novo and Indemnitee shall not be prejudiced by reason of a determination (if so made) that Indemnitee is not entitled to indemnification. If a determination is made or deemed to have been made pursuant to the terms of Section 8 or 9 hereof that Indemnitee is entitled to indemnification, the Company shall be bound by such determination and is precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding and enforceable. The Company further agrees to stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement and is precluded from making any assertion to the contrary. If the court or arbitrator shall determine that Indemnitee is entitled to any indemnification hereunder, the Company shall pay all reasonable expenses (including attorneys' fees and disbursements) actually incurred by Indemnitee in connection with such adjudication or award in arbitration (including, but not limited to, any appellate proceedings). Section 12. Other Rights to Indemnification. The indemnification and advancement of expenses (including attorneys' fees) provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may now or in the future be entitled under any provision of the by-laws, agreement, provision of the Certificate of Incorporation, as amended, vote of stockholders or Disinterested Directors, provision of law, or otherwise; provided, however, that this Agreement supersedes any other Agreement that has been entered into with the Indemnitee which has as its principal purpose the indemnification of Indemnitee. Section 13. Attorneys' Fees and Other Expenses To Enforce Agreement. In the event that Indemnitee is subject to or intervenes in any proceeding in which the validity or 4 5 enforceability of this Agreement is at issue or seeks an adjudication or award in arbitration to enforce Indemnitee's rights under, or to recover damages for breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole or in part in such action, shall be entitled to recover from the Company and shall be indemnified by the Company against, any actual expenses for attorneys' fees and disbursements reasonably incurred by Indemnitee, provided that in bringing the advancement action, Indemnitee acted in good faith. Section 14. Duration of Agreement. This Agreement shall apply with respect to Indemnitee's occupation of any of the position(s) described in Sections 3 and 4 of this Agreement prior to the date of this Agreement and with respect to all periods of such service after the date of this Agreement, even though the Indemnitee may have ceased to occupy such positions(s). This Agreement shall be binding upon the Company and its successors and assigns (including any transferee of all or substantially all of its assets and any successor by merger of operation of law) and shall inure to the benefit Indemnitee and Indemnitee's spouse, assigns, heirs, devises, executors, administrators or other legal representatives. This Agreement supersedes any prior indemnification arrangement between the Company (or its predecessor) and Indemnitee. Section 15. Severability. If any provision of provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. Section 16. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement. Section 17. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. Section 18. Definitions. For purposes of this Agreement: (a) "Disinterested Director" shall mean a director of the Company who is not or was not a party to the action, suit, investigation or proceeding in respect of which indemnification is being sought by Indemnitee. (b) "Independent Counsel" shall mean a law firm or a member of a law firm that neither is presently nor in the past five years has been retained to represent: (i) the Company or Indemnitee in any matter material to either such party, or (ii) any other party to the action, suit, investigation or proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person 5 6 who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee's right to indemnification under this Agreement. (c) "Corporate Status" shall mean the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or any majority-owned subsidiary or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the request of the Company. Section 19. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. Section 20. Notice by Indemnitee. (a) Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any matter which may be subject to indemnification covered hereunder, either civil, criminal, administrative, investigative or otherwise, provided, however, that the failure to so notify the Company will not relieve the Company from any liability it may have to Indemnitee except to the extent that such failure materially prejudices the Company's ability to defend such claim. With respect to any such action, suit, proceeding, inquiry or investigation as to which Indemnitee notifies the Company of the commencement thereof: (i) The Company will be entitled to participate therein at its own expense; and (ii) Except as otherwise provided below, to the extent that it may wish, the Company jointly with any other indemnifying party similarly notified will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election so to assume the defense thereof, the Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ Indemnitee's own counsel in such action, suit, proceeding, inquiry or investigation, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee and not subject to indemnification hereunder unless (x) the employment of counsel by Indemnitee has been authorized by the Company; (y) in the reasonable opinion of counsel to Indemnitee there is or may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such action; or (z) the Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Company. (b) Neither the Company nor the Indemnitee shall settle any claim without the prior written consent of the other (which shall not be unreasonably withheld). Section 21. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been 6 7 directed or if (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed: (i) If to Indemnitee, to the address set forth below his or her signature. (ii) If to the Company to: Universal Compression Holdings, Inc. 4440 Brittmoore Road Houston, Texas 77041-8004 Attn: Chief Executive Officer or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be. Section 22. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the day and year first above written. UNIVERSAL COMPRESSION HOLDINGS, INC. By: /s/ STEPHEN A. SNIDER ----------------------------------------- Name: Stephen A. Snider Title: President and Chief Executive Officer Name: /s/ BERNARD J. DUROC-DANNER ------------------------------------ Address: 515 Post Oak Blvd. ------------------------------------ Houston, Texas 77027 ------------------------------------ ------------------------------------ 7 EX-10.9 3 h85283ex10-9.txt FORM OF AGMT.- STEPHEN A. SNIDER & MARK L. CARLTON 1 EXHIBIT 10.9 AGREEMENT AGREEMENT ("Agreement") dated as of ____________ between Universal Compression, Inc., a Texas corporation (the "Company"), Universal Compression Holdings, Inc., a Delaware corporation ("Holdings") and __________________ (the "Executive"). WHEREAS, Universal is a direct wholly-owned subsidiary of Holdings; WHEREAS, the parties wish to enter into agreement to set out the Company's, Holdings' and the Executive's severance obligations. Accordingly, the parties agree as follows: 1. Severance. (a) If, during the one year period next following a "Change in Control" (as herein defined) the Executive's employment with the Company is terminated by the Company for reasons other than death, disability or cause ("Termination Upon Change in Control"), in lieu of additional salary payments to the Executive for periods subsequent to the date of such termination, the Company shall pay a lump sum severance payment (together with the payments provided in paragraph (b) below, the "Severance Payments") to the Executive at the time of termination. Such payment shall be an amount equal to the sum of (A) the Executive's annual Base Salary as in effect as of the date of termination and (B) the Executive's annual bonus target amount under the Officer Incentive Plan or similar bonus program in effect at such termination. (b) For a period of twelve (12) months immediately following the date of Executive's termination of employment pursuant to Section 1(a) above, the Company shall at its expense arrange to provide the Executive with life, disability, accident and group health insurance benefits substantially similar to those which the Executive was receiving immediately prior to 2 the notice of termination. Benefits otherwise receivable by the Executive pursuant to this paragraph (b) shall be reduced to the extent comparable benefits are actually received by the Executive during the period following the Executive's termination, and any such benefits actually received by the Executive shall be reported to the Company. (c) Nothing contained in this Section 1 shall prevent the Executive from receiving any and all benefits payable under any severance benefit plan or severance program maintained by the Company to which the Executive is entitled. 2. Definition of Change in Control. For purposes of this Agreement a "Change in Control" shall be deemed to have occurred upon the first to occur of the following events: (a) any "person," as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") (other than (i) the Company, or (ii) any corporation owned, directly or indirectly, by the stockholders of the Company or Holdings in substantially the same proportions as their ownership of stock of the Company or Holdings, or (iii) Castle Harlan, Inc. or its affiliates), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company or Holdings representing more than 50% of the combined voting power of the Company's or Holdings' then outstanding securities; or (b) during any period of two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Company's or Holdings' Board of Directors, and any new director (other than a director designated by a person who has entered into an agreement with the Company or Holdings to effect the transaction described in clause (a) of this Section) whose election by the Company's or 3 Holdings' Board of Directors or nomination for election by the Company's or Holdings' stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof. 3. Restrictions and Obligations of the Executive. (a) Consideration for Restrictions and Covenants. The parties hereto acknowledge and agree that the principal consideration for the agreement to make the severance payments provided in this Agreement by the Company to Executive is the Executive's compliance with the undertakings set forth in this Section 3. Specifically, the Executive agrees to comply with the provisions of this Section 3 irrespective of whether the Executive is entitled to receive any such payments. (b) Confidentiality. The confidential and proprietary information and, in any material respect, trade secrets of the Company are among its most valuable assets, including but not limited to, its customer and vendor lists, database, engineering, computer programs, frameworks, models, its marketing programs, its sales, financial, marketing, training and technical information, and any other information, whether communicated orally, electronically, in writing or in other tangible forms concerning how the Company creates, develops, acquires or maintains its products and marketing plans, targets its potential customers and operates its retail and other businesses. The Company invested, and continues to invest, considerable amounts of time and money in its process, technology, know-how, obtaining and developing the goodwill of its customers, its other external relationships, its data systems and data bases, and all the information described above (hereinafter collectively referred to as "Confidential Information"), 4 and any misappropriation or unauthorized disclosure of Confidential Information in any form would irreparably harm the Company. The Executive shall hold in a fiduciary capacity for the benefit of the Company all Confidential Information relating to the Company and its business, which shall have been obtained by the Executive during the Executive's employment by the Company and which shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement). After termination of the Executive's employment with the Company, the Executive shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate, divulge or use any such information, knowledge or data to anyone other than the Company and those designated by it. (c) Non-Solicitation or Hire. During the term of Executive's employment with the Company, Holdings or any subsidiary thereof and for a two-year period following the termination of the Executive's employment for any reason, the Executive shall not, directly or indirectly (i) employ or seek to employ any person who is at the date of termination, or was at any time within the six-month period preceding the date of termination, an officer, general manager or director or equivalent or more senior level employee of the Company or any of its subsidiaries or otherwise solicit, encourage, cause or induce any such employee of the Company or any of its subsidiaries to terminate such employee's employment with the Company or such subsidiary for the employment of another company (including for this purpose the contracting with any person who was an independent contractor (excluding consultant) of the Company during such period) or (ii) take any action that would interfere with the relationship of the Company or its subsidiaries with their suppliers or customers without, in either case, the prior 5 written consent of the Company's Board of Directors, or engage in any other action or business that would have a material adverse effect on the Company. (d) Non-Competition. (i) During the term of Executive's employment with the Company, Holdings or any subsidiary thereof and for a two-year period (the "Restriction Period") following the termination of the Executive's employment for any reason, the Executive shall not, directly or indirectly: (x) engage in any managerial, administrative, advisory, consulting, operational or sales activities in a Restricted Business anywhere in the Restricted Area, including, without limitation, as a director or partner of such Restricted Business, and/or (y) organize, establish, operate, own, manage, control or have a direct or indirect investment or ownership interest in a Restricted Business or in any corporation, partnership (limited or general), limited liability company enterprise or other business entity that engages in a Restricted Business anywhere in the Restricted Area; and (ii) Nothing contained in this Section 3 shall prohibit or otherwise restrict the Executive from acquiring or owning, directly or indirectly, for passive investment purposes not intended to circumvent this Agreement, securities of any entity engaged, directly or indirectly, in a Restricted Business if either (i) such entity is a public entity and the Executive (A) is not a controlling Person of, or a member of a group that controls, such entity and (B) owns, directly or indirectly, no more than 3% of any class of equity securities of such entity or (ii) such entity is not a public entity and the Executive (A) is not a controlling Person of, or a member of a group that controls, such entity and (B) does not own, directly or indirectly, more than 1% of any class of equity securities of such entity. 6 (e) Definitions. For purposes of this Section 3: (i) "Restricted Business" means the business of designing, manufacturing, servicing, operating, marketing, assembling, renting or leasing of air or gas compressors or devices using comparable technologies or other business in which Holdings or its subsidiaries may be engaged during the term of Executive's employment with the Company. To the extent that any entity is primarily engaged in a business other than a Restricted Business, the term "Restricted Business" shall mean the operations, division, segment or subsidiary of such entity that is engaged in any Restricted Business. (ii) "Restricted Area" means any state in the United States, or any country in which Holdings or its subsidiaries engages in any Restricted Business at any time during the term of Executive's employment with the Company. 4. Employment at Will. This Agreement does not restrict the Company's or the Executive's right to terminate the employment relationship at any time, for any reason, with or without cause, and does not in any way create employment for a definite or specific term. 5. Other Provisions. 5.1. Notices. Any notice or other communication required or which may be given hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, sent by facsimile transmission or sent by certified, registered or express mail, postage prepaid, and shall be deemed given when so delivered personally, telegraphed, telexed, or sent by facsimile transmission or, if mailed, four days after the date of mailing, as follows: (a) If the Company or Holdings, to: 4440 Brittmoore Houston, Texas 77041 Attention: General Counsel 7 With copies to: Castle Harlan, Inc. 150 E. 58th Street New York, NY 10155 Attention: William B. Pruellage Schulte Roth & Zabel LLP 900 Third Avenue New York, NY 10022 Attention: Andre Weiss, Esq. (b) If the Executive, to his home address set forth in the records of the Company. 5.2 Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto. 5.3 Waiver and Amendments. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 5.4 Governing Law. This Agreement shall be governed and construed in accordance with the laws of Delaware. 5.5 Assignability. This Agreement, and the Executive's rights and obligations hereunder, may not be assigned by the Executive. The Company and Holdings may each assign this Agreement and its rights, together with its obligations, to any other entity which will substantially carry on the business of the Company. 8 5.6 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. 5.7 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. 5.8 Remedies; Specific Performance. The parties hereto hereby acknowledge that the provisions of Section 3 are reasonable and necessary for the protection of the Company and Holdings. In addition, the Executive further acknowledges that the Company and Holdings will be irrevocably damaged if such covenants are not specifically enforced. Accordingly, the Executive agrees that, in addition to any other relief to which the Company and Holdings may be entitled, the Company and Holdings will be entitled to seek and obtain injunctive relief (without the requirement of any bond) from a court of competent jurisdiction for the purposes of restraining the Executive from any actual or threatened breach of such covenants. In addition, without limiting the Company's and Holdings' remedies for any breach of any restriction on the Executive set forth in Section 3, except as required by law, the Executive shall not be entitled to the payments and insurance benefits set forth in Section 1 hereof if the Executive breaches any of the covenants applicable to the Executive contained in Section 3, the Executive will immediately return to the Company any payments previously received under Section 1 upon such a breach. 5.9 Severability. If any term, provision, covenant or restriction of this Agreement, or any part thereof, is held by a court of competent jurisdiction of 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 9 terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected or impaired or invalidated. The Executive acknowledges that the restrictive covenants contained in Section 3 are a condition of this Agreement and are reasonable and valid in geographical and temporal scope and in all other respects. 5.10 Judicial Modification. If any court or arbitrator determines that any of the covenants in Section 3, or any part of any of them, is invalid or unenforceable, the remainder of such covenants and parts thereof shall not thereby be affected and shall be given full effect, without regard to the invalid portion. If any court or arbitrator determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the geographic or temporal scope of such provision, such court or arbitrator shall reduce such scope to the minimum extent necessary to make such covenants valid and enforceable. 6. Arbitration. Any controversy or claim arising out of or in connection with this Agreement (other than pursuant to Section 3) shall be settled by arbitration in accordance with the rules then obtaining of the American Arbitration Association. Such controversies shall be submitted to three arbitrators, one arbitrator being selected by the Company, one arbitrator being selected by the Executive, and the third being selected by the two so selected by the Company and the Executive or, if they cannot agree upon a third, by the American Arbitration Association. In the event that either the Company or the Executive, within one month after any notification of any demand for arbitration hereunder, shall not have selected its arbitrator and given notice thereof by registered or certified mail to the other, such arbitrator shall be selected by the American Arbitration Association. Confirmation of any award in any such arbitration may be held in any court having jurisdiction of the person against whom such award is rendered. If the results of such arbitration 10 are more favorable to the position taken by the Executive than that taken by the Company, in the opinion of the arbitrators, then all costs and expenses incurred by the Executive in connection with such arbitration shall be paid by the Company. In the event that the arbitrators make a formal finding that the Executive did not have a reasonable basis for instituting the proceeding, contest or dispute giving rise to such arbitration, the Executive shall pay to the Company its reasonable legal fees and expenses incurred in the defense of the proceeding, contest or dispute giving rise to such arbitration. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed this Agreement as of the day and year first above mentioned. EXECUTIVE ------------------------------------ UNIVERSAL COMPRESSION, INC. By: --------------------------------- Title: ------------------------------ Date: ------------------------------- UNIVERSAL COMPRESSION HOLDINGS, INC. By: --------------------------------- Title: ------------------------------ Date: ------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----