Exhibit 10.5





EXHIBIT 10.5





EXECUTION COPY


JPMorgan Chase Bank, National Association
P.O. Box 161
60 Victoria Embankment
London EC4Y 0JP
England


June 4, 2009


	 	 	 
	To:
	 	Exterran Holdings, Inc.
	 
	 	16666 Northchase Drive
	 
	 	Houston, Texas 77060
	 
	 	Attention: Treasurer
	 
	 	Telephone No.: (281) 836-7000
	 
	 	Facsimile No.: (281) 836-8106





Re: Warrants



The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and
conditions of the Warrants issued by Exterran Holdings, Inc. (“Company”) to JPMorgan Chase Bank,
National Association, London Branch (“Dealer”) as of the Trade Date specified below (the
“Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA
Master Agreement specified below. This Confirmation shall replace any previous agreements and
serve as the final documentation for this Transaction.


The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the
“Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc.
(“ISDA”), are incorporated into this Confirmation. In the event of any inconsistency between the
Equity Definitions and this Confirmation, this Confirmation shall govern. This Transaction shall
be deemed to be a Share Option Transaction within the meaning set forth in the Equity Definitions.


Each party is hereby advised, and each such party acknowledges, that the other party has
engaged in, or refrained from engaging in, substantial financial transactions and has taken other
material actions in reliance upon the parties’ entry into the Transaction to which this
Confirmation relates on the terms and conditions set forth below.


1. This Confirmation evidences a complete and binding agreement between Dealer and Company as to
the terms of the Transaction to which this Confirmation relates. This Confirmation shall
supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master
Agreement (the “Agreement”) as if Dealer and Company had executed an agreement in such form (but
without any Schedule except for the election of the laws of the State of New York as the governing
law (without reference to choice of law doctrine)) on the Trade Date. In the event of any
inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will
prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby
agree that no Transaction other than the Transaction to which this Confirmation relates shall be
governed by the Agreement.


2. The Transaction is a Warrant Transaction, which shall be considered a Share Option
Transaction for purposes of the Equity Definitions. The terms of the particular Transaction
to which this Confirmation relates are as follows:


JPMorgan Chase Bank, National Association

Organised under the laws of the United States as a National Banking Association

Main Office 1111 Polaris Parkway, Columbus, Ohio 43271

Registered as a branch in England & Wales branch No. BR000746

Registered Branch Office 125 London Wall, London EC2Y 5AJ

Authorised and regulated by the Financial Services Authority



 


 








 












	 	 	 	 	 	 	 
	General Terms:	 	 
	 
	 	 	 	 	 	 
	 	 	Trade Date:	 	June 4, 2009
	 
	 	 	 	 	 	 
	 	 	Effective Date:	 	The third Exchange Business Day immediately prior to the Premium Payment Date
	 
	 	 	 	 	 	 
	 	 	Warrants:	 	Equity call warrants, each giving the holder the right to purchase one Share at the
Strike Price, subject to the Settlement Terms set forth below. For the purposes of the
Equity Definitions, each reference to a Warrant herein shall be deemed to be a reference
to a Call Option.
	 
	 	 	 	 	 	 
	 	 	Warrant Style:	 	European
	 
	 	 	 	 	 	 
	 	 	Seller:	 	Company
	 
	 	 	 	 	 	 
	 	 	Buyer:	 	Dealer
	 
	 	 	 	 	 	 
	 	 	Shares:	 	The common stock of Company, par value USD 0.01 per Share (Exchange symbol “EXH”)
	 
	 	 	 	 	 	 
	 	 	Number of Warrants:	 	2,807,682, subject to adjustment as provided herein.
	 
	 	 	 	 	 	 
	 	 	Warrant Entitlement:	 	One Share per Warrant
	 
	 	 	 	 	 	 
	 	 	Maximum Number of Shares:	 	2,485,231, subject to adjustment for stock splits and stock
dividends and as reduced as of any date by the number of Shares delivered pursuant to
this Confirmation on or prior to such date.
	 
	 	 	 	 	 	 
	 	 	Strike Price:	 	USD 32.6725
	 
	 	 	 	 	 	 
	 	 	Premium:	 	USD 10,627,500
	 
	 	 	 	 	 	 
	 	 	Premium Payment Date:	 	June 10, 2009
	 
	 	 	 	 	 	 
	 	 	Exchange:	 	The New York Stock Exchange
	 
	 	 	 	 	 	 
	 	 	Related Exchange(s):	 	All Exchanges
	 
	 	 	 	 	 	 
	Procedures for Exercise:	 	 
	 
	 	 	 	 	 	 
	 	 	Expiration Time:	 	The Valuation Time
	 
	 	 	 	 	 	 
	 	 	Expiration Date(s):	 	Each Scheduled Trading Day during the period from and including the First
Expiration Date and to and including the 80th Scheduled Trading Day following
the First Expiration Date shall be an “Expiration Date” for a number of Warrants equal
to the Daily Number of Warrants on such date; provided that, notwithstanding anything to
the contrary in the Equity Definitions, if any such date is a Disrupted Day, the
Calculation Agent shall make adjustments, if applicable, to the Daily Number of Warrants
or shall reduce such Daily Number of Warrants to zero for which such day shall be an
Expiration Date and shall designate a Scheduled Trading Day or a number of Scheduled
Trading Days as the Expiration Date(s) for the remaining Daily
Number of Warrants or a portion thereof for the
originally scheduled Expiration Date; and provided
further that if such Expiration Date has not occurred
pursuant to this clause as of the eighth Scheduled
Trading Day following the last scheduled Expiration Date
under this Transaction, the Calculation Agent shall have
the right to declare such Scheduled Trading Day to be
the final Expiration Date and the Calculation Agent
shall determine its good faith estimate of the fair
market value for the Shares as of the Valuation Time on
that eighth Scheduled Trading Day or on any subsequent
Scheduled Trading Day, as the Calculation Agent shall
determine using commercially reasonable means.






 


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	 	 	First Expiration Date:	 	September 15, 2014 (or if such day is not a Scheduled Trading
Day, the next following Scheduled Trading Day), subject to Market Disruption Event below.
	 
	 	 	 	 	 	 
	 	 	Daily Number of Warrants:	 	For any Expiration Date, the Number of Warrants that have not
expired or been exercised as of such day, divided by the remaining number of Expiration
Dates (including such day), rounded down to the nearest whole number, subject to
adjustment pursuant to the provisos to “Expiration Date(s)”.
	 
	 	 	 	 	 	 
	 	 	Automatic Exercise:	 	Applicable; and means that for each Expiration Date, a number of Warrants
equal to the Daily Number of Warrants (as adjusted pursuant to the terms hereof) for such
Expiration Date will be deemed to be automatically exercised.
	 
	 	 	 	 	 	 
	 	 	Market Disruption Event:	 	Section 6.3(a)(ii) of the Equity Definitions is hereby amended by
replacing clause (ii) in its entirety with “(ii) an Exchange Disruption, or” and
inserting immediately following clause (iii) the phrase “; in each case that the
Calculation Agent determines is material.”
	 
	 	 	 	 	 	 
	Valuation:	 	 
	 
	 	 	 	 	 	 
	 	 	Valuation Time:	 	Scheduled Closing Time; provided that if the principal trading session is
extended, the Calculation Agent shall determine the Valuation Time in its reasonable
discretion.
	 
	 	 	 	 	 	 
	 	 	Valuation Date:	 	Each Exercise Date.
	 
	 	 	 	 	 	 
	Settlement Terms:	 	 
	 
	 	 	 	 	 	 
	 	 	Settlement Method:	 	Net Share Settlement.
	 
	 	 	 	 	 	 
	 	 	Net Share Settlement:	 	On the relevant Settlement Date, Company shall deliver to Dealer
the Share Delivery Quantity of Shares for such Settlement Date to the account specified
hereto free of payment through the Clearance System.
	 
	 	 	 	 	 	 
	 	 	Share Delivery Quantity:	 	For any Settlement Date, a number of Shares, as calculated by
the Calculation Agent, equal to the Net Share Settlement Amount for such Settlement Date
divided by the Settlement Price on the Valuation Date in respect of such Settlement Date,
rounded down to the nearest whole number plus any Fractional Share Amount;
provided that the Share Delivery Quantity for any
Settlement Date shall not exceed the Maximum Number of
Shares as of such Settlement Date.






 


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	 	 	Net Share Settlement Amount:	 	For any Settlement Date, an amount equal to the product of
(i) the Number of Warrants exercised or deemed exercised on the relevant Exercise Date,
(ii) the Strike Price Differential for such Settlement Date and (iii) the Warrant
Entitlement.
	 
	 	 	 	 	 	 
	 	 	Settlement Price:	 	For any Valuation Date, the per Share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on Bloomberg page EXH.N <equity> AQR
(or any successor thereto) in respect of the period from the scheduled opening time of
the Exchange to the Scheduled Closing Time on such Valuation Date (or if such
volume-weighted average price is unavailable, the market value of one Share on such
Valuation Date, as determined by the Calculation Agent). Notwithstanding the foregoing,
if (i) any Expiration Date is a Disrupted Day and (ii) the Calculation Agent determines
that such Expiration Date shall be an Expiration Date for fewer than the Daily Number of
Warrants, as described above, then the Settlement Price for the relevant Valuation Date
shall be the volume-weighted average price per Share on such Valuation Date on the
Exchange, as determined by the Calculation Agent based on such sources as it deems
appropriate using a volume-weighted methodology, for the portion of such Valuation Date
for which the Calculation Agent determines there is no Market Disruption Event.
	 
	 	 	 	 	 	 
	 	 	Settlement Date(s):	 	As determined in reference to Section 9.4 of the Equity Definitions,
subject to Section 9(k)(i) hereof.
	 
	 	 	 	 	 	 
	Other Applicable Provisions:	 	The provisions of Sections 9.1(c), 9.8, 9.9, 9.11, 9.12 and 10.5 of
the Equity Definitions will be applicable, except that all references in such provisions to
“Physically-settled” shall be read as references to “Net Share Settled.” “Net Share Settled”
in relation to any Warrant means that Net Share Settlement is applicable to that Warrant.
	 
	 	 	 	 	 	 
	Representation and Agreement:	 	Notwithstanding Section 9.11 of the Equity Definitions, the parties
acknowledge that any Shares delivered to Dealer may be, upon delivery, subject to restrictions
and limitations arising from Company’s status as issuer of the Shares under applicable
securities laws.
	 
	 	 	 	 	 	 
	3. Additional Terms applicable to
the Transaction:	 	 
	 
	 	 	 	 	 	 
	          Adjustments applicable to the
Warrants:	 	 
	 
	 	 	 	 	 	 
	                 Method of Adjustment:	 	Calculation Agent Adjustment. For the avoidance of doubt, in making any
adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if
any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of
Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or
distributions on the Shares, whether or not extraordinary, shall be
governed by Section 9(f) of this Confirmation in lieu of
Article 10 or Section 11.2(c) of the Equity Definitions.






 


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	Extraordinary Events applicable to
the Transaction:	 	 
	 
	 	 	 	 	 	 
	 	 	New Shares:	 	Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting
the text in clause (i) thereof in its entirety (including the word “and” following clause
(i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose
related depositary receipts are publicly quoted, traded or listed) on any of the New York
Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their
respective successors)” and (b) by inserting immediately prior to the period the phrase
“and (iii) of an entity or person organized under the laws of the United States, any
State thereof or the District of Columbia that also becomes Company under the Transaction
following such Merger Event or Tender Offer”.
	 
	 	 	 	 	 	 
	 	 	Consequence of Merger Events:	 	 
	 
	 	 	 	 	 	 
	 	 	Merger Event:	 	Applicable; provided that if an event occurs that constitutes both a Merger
Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event
under Section 9(h)(ii)(B) of this Confirmation, Dealer may elect, in its commercially
reasonable judgment, whether the provisions of Section 12.1(b) of the Equity Definitions
or Section 9(h)(ii)(B) will apply.
	 
	 	 	 	 	 	 
	 
	 	         Share-for-Share:
	 	Modified Calculation Agent Adjustment
	 
	 	 	 	 	 	 
	 
	 	         Share-for-Other:
	 	Cancellation and Payment (Calculation Agent Determination)
	 
	 	 	 	 	 	 
	 
	 	         Share-for-Combined:
	 	Cancellation and Payment (Calculation Agent Determination); provided
that Dealer may elect, in its commercially reasonable judgment, Component
Adjustment (Calculation Agent Determination).
	 
	 	 	 	 	 	 
	 	 	Consequence of Tender Offers:	 	 
	 
	 	 	 	 	 	 
	 	 	Tender Offer:	 	Applicable; provided however that if an event occurs that constitutes both a
Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination
Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in its
commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity
Definitions or Section 9(h)(ii)(A) will apply.
	 
	 	 	 	 	 	 
	 
	 	         Share-for-Share:
	 	Modified Calculation Agent Adjustment
	 
	 	 	 	 	 	 
	 
	 	         Share-for-Other:
	 	Modified Calculation Agent Adjustment
	 
	 	 	 	 	 	 
	 
	 	         Share-for-Combined:
	 	Modified Calculation Agent Adjustment





 


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	 	 	Nationalization, Insolvency or Delisting:	 	Cancellation and Payment (Calculation Agent
Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of
the Equity Definitions, it will also constitute a Delisting if the
Exchange is located in the United States and the Shares
are not immediately re-listed, re-traded or re-quoted on
any of the New York Stock Exchange, The NASDAQ Global
Select Market or The NASDAQ Global Market (or their
respective successors); if the Shares are immediately
re-listed, re-traded or re-quoted on any of the New York
Stock Exchange, The NASDAQ Global Select Market or The
NASDAQ Global Market (or their respective successors),
such exchange or quotation system shall thereafter be
deemed to be the Exchange.
	 
	 	 	 	 	 	 
	 	 	Additional Disruption Events:	 	 
	 
	 	 	 	 	 	 
	 
	 	        Change in Law:
	 	Applicable; provided that Section 12.9(a)(ii)(X) of the Equity
Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge
Positions.”
	 
	 	 	 	 	 	 
	 
	 	        Failure to Deliver:
	 	Not Applicable
	 
	 	 	 	 	 	 
	 
	 	        Insolvency Filing:
	 	Applicable
	 
	 	 	 	 	 	 
	 
	 	        Hedging Disruption:
	 	Applicable; provided that Section 12.9(a)(v) of the Equity
Definitions is hereby modified by inserting the following two phrases at the end of
such Section:
	 
	 
	 	 	 	 	 	“For the avoidance of doubt, the term “equity price
risk” shall be deemed to include, but shall not be
limited to, stock price and volatility risk. And, for
the further avoidance of doubt, any such transactions or
assets referred to in phrases (A) or (B) above must be
available on commercially reasonable pricing terms.”
	 
	 	 	 	 	 	 
	 
	 	        Increased Cost of Hedging:
	 	Not Applicable
	 
	 	 	 	 	 	 
	 
	 	        Loss of Stock Borrow:
	 	Applicable
	 
	 	 	 	 	 	 
	 
	 	             Maximum Stock Loan Rate:
	 	200 basis points
	 
	 	 	 	 	 	 
	 
	 	        Increased
Cost of Stock Borrow:
	 	Applicable
	 
	 	 	 	 	 	 
	 
	 	             Initial Stock Loan Rate:
	 	25 basis points
	 
	 	 	 	 	 	 
	 	 	Hedging Party:	 	Dealer for all applicable Additional Disruption Events
	 
	 	 	 	 	 	 
	 	 	Determining Party:	 	Dealer for all applicable Extraordinary Events
	 
	 	 	 	 	 	 
	 	 	Non-Reliance:	 	Applicable
	 
	 	 	 	 	 	 
	 	 	Agreements and Acknowledgments	 	 
	 
	 	 	 	 	 	 
	 	 	Regarding Hedging Activities:	 	Applicable
	 
	 	 	 	 	 	 
	 	 	Additional Acknowledgments:	 	Applicable
	 
	 	 	 	 	 	 
	4. Calculation Agent:	 	Dealer; provided that all determinations made by Dealer as Calculation
Agent shall be made in good faith and in a commercially reasonable manner. Following any
calculation or determination by Calculation Agent hereunder and a prior written request by
Company, the Calculation Agent shall provide Company a written explanation of such calculation
or determination including, where applicable, a description of the methodology and the basis
for such calculation or determination in reasonable detail, it being understood that the
Calculation Agent shall not be obligated to disclose any proprietary models used by it for
such calculation or determination. No transferee of Dealer shall act as Calculation Agent
without the prior written
consent of Company, such consent not to be unreasonably
withheld or delayed.





 


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5. Account Details:




	 	(a)	 	Account for payments to Company:







Bank: JPMorgan Chase Bank, N.A., New York

ABA: 021000021

Acct: Exterran Holdings, Inc.

Acct No.: 737308817




Account for delivery of Shares from Company:




To be provided by Company.




	 	(b)	 	Account for payments to Dealer:







JPMorgan Chase Bank, National Association, New York

ABA: 021 000 021

Favour: JPMorgan Chase Bank National Association, London

A/C: 0010962009

CHASUS33




Account for delivery of Shares to Dealer:




DTC 0060



6. Offices:



The Office of Company for the Transaction is: Inapplicable, Company is not a Multibranch Party.



The Office of Dealer for the Transaction is: London





JPMorgan Chase Bank, National Association

London Branch

P.O. Box 161

60 Victoria Embankment

London EC4Y 0JP

England



7. Notices: For purposes of this Confirmation:




	 	(a)	 	Address for notices or communications to Company:







Exterran Holdings, Inc.

16666 Northchase Drive

Houston, Texas 77060

Attention: Treasurer

Telephone No.: (281) 836-7000

Facsimile No.: (281) 836-8106


 


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	 	(b)	 	Address for notices or communications to Dealer:







JPMorgan Chase Bank, National Association

4 New York Plaza, Floor 18

New York, NY 10004-2413

Attention: Mariusz Kwasnik

Title: Operations Analyst, EDG Corporate Marketing

Telephone No: (212) 623-7223

Facsimile No: (212) 623-7719



8. Representations and Warranties of Company




Each of the representations and warranties of Company set forth in Section 3 of the Underwriting
Agreement (the “Underwriting Agreement”) dated as of June 4, 2009 between Company and J.P. Morgan
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC
and Credit Suisse Securities (USA) LLC as representative of the Underwriters party thereto (the
“Underwriters”), are true and correct and are hereby deemed to be repeated to Dealer on the date
hereof and on and as of the Premium Payment Date as if set forth herein. Company hereby further
represents and warrants to Dealer that:




	 	(a)	 	Company has all necessary corporate power and authority to execute, deliver and
perform its obligations in respect of this Transaction; such execution, delivery and
performance have been duly authorized by all necessary corporate action on Company’s
part; and this Confirmation has been duly and validly executed and delivered by Company
and constitutes its valid and binding obligation, enforceable against Company in
accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in equity) and
except that rights to indemnification and contribution hereunder may be limited by
federal or state securities laws or public policy relating thereto.







	 	(b)	 	Neither the execution and delivery of this Confirmation nor the incurrence or
performance of obligations of Company hereunder will conflict with or result in a
breach of the certificate of incorporation or by-laws (or any equivalent documents) of
Company, or any applicable law or regulation, or any order, writ, injunction or decree
of any court or governmental authority or agency, or any agreement or instrument to
which Company or any of its subsidiaries is a party or by which Company or any of its
subsidiaries is bound or to which Company or any of its subsidiaries is subject, or
constitute a default under, or result in the creation of any lien under, any such
agreement or instrument.







	 	(c)	 	No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required in connection with the execution,
delivery or performance by Company of this Confirmation, except such as have been
obtained or made and such as may be required under the Securities Act of 1933, as
amended (the “Securities Act”) or state securities laws.







	 	(d)	 	The Shares of Company initially issuable upon exercise of the Warrant by the
net share settlement method (the “Warrant Shares”) have been reserved for issuance by
all required corporate action of Company. The Warrant Shares have been duly authorized
and, when delivered against payment therefor (which may include Net Share Settlement in
lieu of cash) and otherwise as contemplated by the terms of the Warrant following the
exercise of the Warrant in accordance with the terms and conditions of the Warrant,
will be validly issued, fully-paid and non-assessable, and the issuance of the Warrant
Shares will not be subject to any preemptive or similar rights.







	 	(e)	 	Company is not and will not be required to register as an “investment company”
as such term is defined in the Investment Company Act of 1940, as amended.





 


8









 
















	 	(f)	 	Company is an “eligible contract participant” (as such term is defined in
Section 1a(12) of the Commodity Exchange Act, as amended (the “CEA”)) because one or
more of the following is true:







Company is a corporation, partnership, proprietorship, organization, trust or other
entity and:




	 	(A)	 	Company has total assets in excess of USD 10,000,000;







	 	(B)	 	the obligations of Company hereunder are guaranteed, or
otherwise supported by a letter of credit or keepwell, support or other
agreement, by an entity of the type described in Section 1a(12)(A)(i) through
(iv), 1a(12)(A)(v)(I), 1a(12)(A)(vii) or 1a(12)(C) of the CEA; or







	 	(C)	 	Company has a net worth in excess of USD 1,000,000 and has
entered into this Agreement in connection with the conduct of Company’s
business or to manage the risk associated with an asset or liability owned or
incurred or reasonably likely to be owned or incurred by Company in the conduct
of Company’s business.







	 	(g)	 	Company and each of its affiliates is not, on the date hereof, in possession of
any material non-public information with respect to Company.







	 	(h)	 	Company is entering into the Transaction for bona fide business purposes and
not for speculative purposes.






9. Other Provisions:




	 	(a)	 	Opinions. Company shall deliver to Dealer an opinion of counsel, dated
as of the Trade Date and reasonably acceptable to Dealer in form and substance, with
respect to (i) due incorporation, existence and good standing of Company in Delaware,
(ii) Company’s qualifications as a foreign corporation and good standing in Texas,
(iii) the due authorization, execution and delivery of the Confirmation, and (iv) the
absence of conflict of the execution and delivery of the Confirmation with any material
agreement required to be filed as any exhibit to Company’s Annual Report on Form 10-K,
Company’s charter documents and any applicable law or regulation. Delivery of such
opinion to Dealer shall be a condition precedent for the purpose of Section 2(a)(iii)
of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the
Agreement.







	 	(b)	 	Repurchase Notices. Company shall, on any day on which Company effects
any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a
“Repurchase Notice”) on such day if following such repurchase, the number of
outstanding Shares on such day, subject to any adjustments provided herein, is (i) less
than 56.5 million (in the case of the first such notice) or (ii) thereafter more than
5.4 million less than the number of Shares included in the immediately preceding
Repurchase Notice. Company agrees to indemnify and hold harmless Dealer and its
affiliates and their respective officers, directors, employees, affiliates, advisors,
agents and controlling persons (each, an “Indemnified Person”) from and against any and
all losses (including losses relating to Dealer’s hedging activities as a consequence
of becoming, or of the risk of becoming, a Section 16 “insider”, including without
limitation, any forbearance from hedging activities or cessation of hedging activities
and any losses in connection therewith with respect to this Transaction), claims,
damages, judgments, liabilities and expenses (including reasonable attorney’s fees),
joint or several, which an Indemnified Person actually may become subject to, as a
result of Company’s failure to provide Dealer with a Repurchase Notice on the day and
in the manner specified in this paragraph, and to reimburse, within 30 days, upon
written request, each of such Indemnified Persons for any reasonable legal or other
expenses incurred in connection with investigating, preparing for, providing testimony
or other evidence in connection with or defending any of the foregoing. If any suit,
action, proceeding (including any governmental or regulatory investigation), claim or
demand shall be brought or asserted against the Indemnified Person, such Indemnified
Person





 


9









 







shall
promptly notify Company in writing, and Company, upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any
others Company may designate in such proceeding and shall pay the fees and expenses
of such counsel related to such proceeding. Company shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, Company agrees
to indemnify any Indemnified Person from and against any loss or liability by reason
of such settlement or judgment. Company shall not, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such proceeding
on terms reasonably satisfactory to such Indemnified Person. If the indemnification
provided for in this paragraph is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then Company under such paragraph, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities. The
remedies provided for in this paragraph are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any Indemnified Person at law
or in equity. The indemnity and contribution agreements contained in this paragraph
shall remain operative and in full force and effect regardless of the termination of
this Transaction.



	 	(c)	 	Regulation M. Company is not on the date hereof engaged in a
distribution, as such term is used in Regulation M under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), of any securities of Company, other than the
distribution of USD 325,000,000 principal amount of 4.25% convertible senior notes due
2014 being made on the date hereof. Company shall not, until the second Scheduled
Trading Day immediately following the Effective Date, engage in any such distribution.






	 	(d)	 	No Manipulation. Company is not entering into this Transaction to
create actual or apparent trading activity in the Shares (or any security convertible
into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the
price of the Shares (or any security convertible into or exchangeable for the Shares)
or otherwise in violation of the Exchange Act.






	 	(e)	 	Transfer or Assignment. Company may not transfer any of its rights or
obligations under this Transaction without the prior written consent of Dealer. Dealer
may, without Company’s consent, transfer or assign all or any part of its rights or
obligations under this Transaction to any third party. If at any time at which (1) the
Section 16 Percentage exceeds 7.5%, (2) the Warrant Equity Percentage exceeds 14.5%, or
(3) the Share Amount exceeds the Post-Effective Limit (if any applies), Dealer is
unable after using its commercially reasonable efforts to effect a transfer or
assignment of Warrants to a third party on pricing terms reasonably acceptable to
Dealer and within a time period reasonably acceptable to Dealer such that (1) the
Section 16 Percentage will be equal to or less than 7.5%, (2) the Warrant Equity
Percentage will be equal to or less than 14.5%, and (3) the Share Amount will be equal
to or less than any such Post-Effective Limit, then Dealer may designate any Exchange
Business Day as an Early Termination Date with respect to a portion of the Transaction
(the “Terminated Portion”), such that following such partial termination (1) the
Section 16 Percentage will be equal to or less than 7.5%, (2) the Warrant Equity
Percentage will be equal to or less than 14.5%, and (3) the Share Amount will be equal
to or less than such Post-Effective Limit. In the event that Dealer so designates an
Early Termination Date with respect to a Terminated Portion, a payment shall be made
pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been
designated in respect of a Transaction having terms identical to this Transaction and a
Number of Warrants equal to the number of Warrants underlying the Terminated Portion,
(2) Company shall be the sole Affected Party with respect to such partial termination
and (3) the Terminated Portion shall be the sole Affected Transaction (and, for the
avoidance of doubt, the provisions of Section 9(j) shall apply to any amount that is
payable by Company to Dealer pursuant to this sentence as if Company was not the
Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed
as a percentage, (A) the




 


10








 







numerator of which is the number of Shares that Dealer and
each person subject to aggregation of Shares with Dealer under Section 13 or Section 16 of the
Exchange Act and rules promulgated thereunder (the “Dealer Group”) directly or
indirectly beneficially own (as defined under Section 13 or Section 16 of the
Exchange Act and rules promulgated thereunder) and (B) the denominator of which is
the number of Shares outstanding. The “Warrant Equity Percentage” as of any day is
the fraction, expressed as a percentage, (A) the numerator of which is the sum of
(x) the product of the Number of Warrants and the Warrant Entitlement and (y) the
aggregate number of Shares underlying any other warrants purchased by Dealer from
Company, and (B) the denominator of which is the number of Shares outstanding. The
“Share Amount” as of any day is the number of Shares that Dealer and any person
whose ownership position would be aggregated with that of Dealer (Dealer or any such
person, a “Dealer Person”) under any law, rule, regulation or regulatory order that
for any reason becomes applicable to ownership of Shares after the Trade Date
(“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds
the power to vote or otherwise meets a relevant definition of ownership of under the
Applicable Laws, as determined by Dealer in its reasonable discretion. The
“Post-Effective Limit” means (x) the minimum number of Shares that would give rise
to reporting or registration obligations or other requirements (including obtaining
prior approval from any person or entity) of a Dealer Person, or would result in an
adverse effect on a Dealer Person, under the Applicable Laws, as determined by
Dealer in its reasonable discretion, minus (y) 1% of the number of Shares
outstanding. Notwithstanding any other provision in this Confirmation to the
contrary requiring or allowing Dealer to purchase, sell, receive or deliver any
Shares or other securities to or from Company, Dealer may designate any of its
affiliates to purchase, sell, receive or deliver such Shares or other securities and
otherwise to perform Dealer’s obligations in respect of this Transaction and any
such designee may assume such obligations. Dealer shall be discharged of its
obligations to Company to the extent of any such performance.



	 	(f)	 	Dividends. If at any time during the period from and including the
Effective Date, to and including the final Expiration Date, an ex-dividend date for a
cash dividend occurs with respect to the Shares, then the Calculation Agent will adjust
any of the Strike Price, Number of Warrants and/or Daily Number of Warrants to preserve
the fair value of the Warrants to Dealer after taking into account such dividend.






	 	(g)	 	Role of Agent. Each party agrees and acknowledges that (i) J.P. Morgan
Securities Inc., an affiliate of Dealer (“JPMSI”), has acted solely as agent and not as
principal with respect to this Transaction and (ii) JPMSI has no obligation or
liability, by way of guaranty, endorsement or otherwise, in any manner in respect of
this Transaction (including, if applicable, in respect of the settlement thereof). Each
party agrees it will look solely to the other party (or any guarantor in respect
thereof) for performance of such other party’s obligations under this Transaction.






(h) Additional Provisions.



(i) Amendments to the Equity Definitions:



(A) Section 11.2(a) of the Equity Definitions is hereby amended by deleting the
words “a diluting or concentrative” and replacing them with the words “an”; and
adding the phrase “or Warrants” at the end of the sentence.



(B) Section 11.2(c) of the Equity Definitions is hereby amended by (x)
replacing the words “a diluting or concentrative” with “an”, (y) adding the
phrase “or Warrants” after the words “the relevant Shares” in the same sentence
and (z) deleting the phrase “(provided that no adjustments will be made to
account solely for changes in volatility, expected dividends, stock loan rate
or liquidity relative to the relevant Shares)” and replacing it with the phrase
“(and, for the avoidance of doubt, adjustments may be made to account solely
for changes in volatility, expected dividends, stock loan rate or liquidity
relative to the relevant Shares).”



(C) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by
deleting the words “a diluting or concentrative” and replacing them with the
word “a material”; and adding the phrase “or Warrants” at the end of the
sentence.

 


11








 











(D) Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1)
deleting from the fourth line thereof the word “or” after the word “official”
and inserting a comma therefor, and (2) deleting the semi-colon at the end of
subsection (B) thereof and inserting the following words therefor “or (C) at
Dealer’s option, the occurrence of any of the events specified in Section
5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that
Issuer.”




(E) Section 12.9(b)(iv) of the Equity Definitions is hereby amended by:




(x) deleting (1) subsection (A) in its entirety, (2) the phrase “or (B)”
following subsection (A) and (3) the phrase “in each case” in subsection
(B); and




(y) deleting the phrase “neither the Non-Hedging Party nor the Lending
Party lends Shares in the amount of the Hedging Shares or” in the
penultimate sentence.




(F) Section 12.9(b)(v) of the Equity Definitions is hereby amended by:




(x) adding the word “or” immediately before subsection “(B)” and
deleting the comma at the end of subsection (A); and




(y) (1) deleting subsection (C) in its entirety, (2) deleting the word
“or” immediately preceding subsection (C) and (3) deleting the
penultimate sentence in its entirety and replacing it with the sentence
“The Hedging Party will determine the Cancellation Amount payable by one
party to the other.”




(ii) Notwithstanding anything to the contrary in this Confirmation, upon the
occurrence of one of the following events, with respect to this Transaction, (1)
Dealer shall have the right to designate such event an Additional Termination Event
and designate an Early Termination Date pursuant to Section 6(b) of the Agreement,
and (2) Company shall be deemed the sole Affected Party and the Transaction shall be
deemed the sole Affected Transaction:




(A) A “person” or “group” within the meaning of Section 13(d) of the Exchange
Act, other than Company, its subsidiaries and its and their employee benefit
plans, has become the direct or indirect “beneficial owner,” as defined in Rule
13d-3 under the Exchange Act, of the common equity of Company representing more
than 50% of the voting power of such common equity.




(B) Consummation of any share exchange, consolidation or merger of Company or
any other transaction or series of transactions pursuant to which the Shares
will be converted into cash, securities or other property or any sale, lease or
other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of Company and its subsidiaries,
taken as a whole, to any person other than one of Company’s subsidiaries;
provided, however, that a transaction where the holders of all classes of
Company’s common equity immediately prior to such transaction that is a share
exchange, consolidation or merger own, directly or indirectly, more than 50% of
all classes of common equity of the continuing or surviving corporation or
transferee or the parent thereof immediately after such event shall not
constitute an Additional Termination Event. Notwithstanding the foregoing, any
event set forth in this clause (B) shall not constitute an Additional
Termination Event if at least 90% of the consideration received or to be
received by holders of the Shares, excluding cash payments for fractional
Shares, in connection with such event consists of shares of common stock traded
on the New York Stock Exchange, the NASDAQ Global Market or the NASDAQ Global
Select Market (or any of their respective successors) or which will be so
traded or quoted when issued or exchanged in connection with such event.


 


12









 











(C) An event of default as defined in any mortgage, indenture or instrument
under which there may be issued, or by which there may be secured or evidenced,
any indebtedness of Company or any principal subsidiary (other than Exterran
Partners, L.P. and its subsidiaries, so long as Exterran Partners, L.P. and its
subsidiaries are not restricted subsidiaries of Company, as such term is
defined in the Senior Secured Credit Agreement dated August 20, 2007 by and
among Company, Exterran Canada, Limited Partnership and the agents and lenders
party thereto) for money borrowed, whether such indebtedness now exists or
shall hereafter be created, shall happen and shall result in such indebtedness
in principal amount in excess of $50 million becoming or being declared due and
payable prior to the date on which it would otherwise become due and payable.




(D) Dealer, despite using commercially reasonable efforts, is unable or
reasonably determines that it is impractical or illegal, to hedge its exposure
with respect to this Transaction in the public market without registration
under the Securities Act or as a result of any legal, regulatory or
self-regulatory requirements or related policies and procedures (whether or not
such requirements, policies or procedures are imposed by law or have been
voluntarily adopted by Dealer).




(E) At any time on any day during the period from and including the Trade Date,
to and including the final Expiration Date, (1) the Share Delivery Quantity of
Shares that would be deliverable (if such time were the Valuation Time and such
date were the Exercise Date and Valuation Date for a number of Warrants equal
to the Number of Warrants as of such date and Net Share Settlement applied)
exceeds a number of Shares equal to 75% of the Maximum Number of Shares, or (2)
Company makes a public announcement of any transaction or event that, in the
reasonable opinion of Dealer would, upon consummation of such transaction or
upon the occurrence of such event, as applicable, and after giving effect to
any applicable adjustments hereunder, cause the Share Delivery Quantity of
Shares immediately following the consummation of such transaction or the
occurrence of such event (determined as if the time immediately following the
consummation of such transaction or the occurrence of such event were the
Valuation Time and the date upon which such transaction is consummated or such
event occurs were the Exercise Date and Valuation Date for a number of Warrants
equal to the Number of Warrants as of such Date and Net Share Settlement
applied) to exceed a number of Shares equal to 75% of the Maximum Number of
Shares.




	 	(i)	 	No Collateral or Setoff. Notwithstanding any provision of the
Agreement or any other agreement between the parties to the contrary, the obligations
of Company hereunder are not secured by any collateral. Obligations under this
Transaction shall not be set off by Company against any other obligations of the
parties, whether arising under the Agreement, this Confirmation, under any other
agreement between the parties hereto, by operation of law or otherwise. Any provision
in the Agreement with respect to the satisfaction of Company’s payment obligations to
the extent of Dealer ‘s payment obligations to Company in the same currency and in the
same Transaction (including, without limitation Section 2(c) thereof) shall not apply
to Company and, for the avoidance of doubt, Company shall fully satisfy such payment
obligations notwithstanding any payment obligation to Company by Dealer in the same
currency and in the same Transaction. In calculating any amounts under Section 6(e) of
the Agreement, notwithstanding anything to the contrary in the Agreement, (1) separate
amounts shall be calculated as set forth in such Section 6(e) with respect to (a) this
Transaction and (b) all other Transactions, and (2) such separate amounts shall be
payable pursuant to Section 6(d)(ii) of the Agreement. For the avoidance of doubt and
notwithstanding anything to the contrary provided in this Section 9(i), in the event of
bankruptcy or liquidation of either Company or Dealer neither party shall have the
right to set off any obligation that it may have to the other party under this
Transaction against any obligation such other party may have to it, whether arising
under the Agreement, this Confirmation or any other agreement between the parties
hereto, by operation of law or otherwise.





 


13









 







	 	(j)	 	Alternative Calculations and Payment on Early Termination and on Certain
Extraordinary Events. If, in respect of this Transaction, an amount is payable by
Company to Dealer, (i) pursuant
to Section 12.7 or Section 12.9 of the Equity Definitions, (ii) pursuant to Section
6(d)(ii) of the Agreement or (iii) pursuant to Section 9(t) (a “Payment
Obligation”), Company shall have the right, in its sole discretion, to satisfy any
such Payment Obligation by the Share Termination Alternative (as defined below)
(except that Company shall not make such an election in the event of a
Nationalization, Insolvency, Merger Event or Tender Offer in which the consideration
to be paid to holders of shares consists solely of cash or an Event of Default in
which Company is the Defaulting Party or a Termination Event in which Company is the
Affected Party, other than an Event of Default of the type described in Section
5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the
type described in Section 5(b) of the Agreement, in each case that resulted from an
event or events outside Company’s control) and shall give irrevocable telephonic
notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later
than 12:00 p.m. (New York City time) on the Merger Date, Tender Offer Date,
Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early
Termination Date or date of cancellation, or no later than 6:00 p.m. (New York City
time) on the Early Unwind Date, as applicable; provided that if Company does not
validly elect to satisfy its Payment Obligation by the Share Termination
Alternative, Dealer shall have the right, in its reasonable discretion, to require
Company to satisfy its Payment Obligation by the Share Termination Alternative.
Notwithstanding the foregoing, Company’s or Dealer’s right to elect satisfaction of
a Payment Obligation in the Share Termination Alternative as set forth in this
clause shall only apply to Transactions under this Confirmation and, notwithstanding
anything to the contrary in the Agreement, (1) separate amounts shall be calculated
with respect to (a) Transactions hereunder and (b) all other Transactions under the
Agreement, and (2) such separate amounts shall be payable pursuant to Section
6(d)(ii) of the Agreement, subject to, in the case of clause (a), Company’s Share
Termination Alternative right hereunder.





	 	 	 	 
	 	Share Termination Alternative:	 	If applicable, Company shall deliver
to Dealer the Share Termination Delivery Property on the date (the “Share
Termination Payment Date”) on which the Payment Obligation would otherwise be
due pursuant to Section 12.7 or Section 12.9 of the Equity Definitions or
Section 6(d)(ii) of the Agreement, or on the Exchange Business Day immediately
following the date on which the Payment Obligation would otherwise be due
pursuant to Section 9(t), as applicable, subject to paragraph (k)(i) below, in
satisfaction, subject to paragraph (k)(ii) below, of the Payment Obligation in
the manner reasonably requested by Dealer free of payment.

	 	 	 	 

	 	Share Termination Delivery Property:	 	A number of Share Termination
Delivery Units, as calculated by the Calculation Agent, equal to the Payment
Obligation divided by the Share Termination Unit Price. The Calculation Agent
shall adjust the amount of Share Termination Delivery Property by replacing any
fractional portion of a security therein with an amount of cash equal to the
value of such fractional security based on the values used to calculate the
Share Termination Unit Price.

	 	 	 	 




 


14







 








	 	 	 
	Share Termination Unit Price:	 	The value to Dealer of property
contained in one Share Termination Delivery Unit on the date such Share
Termination Delivery Units are to be delivered as Share Termination Delivery
Property, as determined by the Calculation Agent in its discretion by
commercially reasonable means. The Calculation Agent shall notify Company of
such Share Termination Unit Price at the time of
notification of the Payment Obligation. In
the case of a Private Placement of Share
Termination Delivery Units that are Restricted
Shares (as defined below), as set forth in
paragraph (k)(i) below, the Share Termination
Unit Price shall be determined by the
discounted price applicable to such Share
Termination Delivery Units. In the case of a
Registration Settlement of Share Termination
Delivery Units that are Restricted Shares (as
defined below) as set forth in paragraph
(k)(ii) below, the Share Termination Unit
Price shall be the Settlement Price on the
Merger Date, the Tender Offer Date, the
Announcement Date (in the case of a
Nationalization, Insolvency or Delisting), the
date of cancellation, the Early Termination
Date or the Early Unwind Date, as applicable.

	 	 	 

	Share Termination Delivery Unit:
	 	In the case of a Termination Event,
Event of Default Additional Disruption Event, Delisting or Early Unwind, one
Share or, in the case of Nationalization, Insolvency, Tender Offer or Merger
Event, a unit consisting of the number or amount of each type of property
received by a holder of one Share (without consideration of any requirement to
pay cash or other consideration in lieu of fractional amounts of any
securities) in such Nationalization, Insolvency, Tender Offer or Merger Event.
If such Nationalization, Insolvency, Tender Offer or Merger Event involves a
choice of consideration to be received by holders, such holder shall be deemed
to have elected to receive the maximum possible amount of cash.

	 	 	 

	Failure to Deliver:
	 	Inapplicable

	 	 	 

	Other applicable provisions:
	 	If Share Termination Alternative is
applicable, the provisions of Sections 9.8, 9.9, 9.11, 9.12 and 10.5 (as
modified above) of the Equity Definitions will be applicable, except that all
references in such provisions to “Physically-settled” shall be read as
references to “Share Termination Settled” and all references to “Shares” shall
be read as references to “Share Termination Delivery Units”. “Share
Termination Settled” in relation to this Transaction means that Share
Termination Alternative is applicable to this Transaction.






	 	(k)	 	Registration/Private Placement Procedures. If, in the reasonable
opinion of Dealer, following any delivery of Shares or Share Termination Delivery
Property to Dealer hereunder, such Shares or Share Termination Delivery Property would
be in the hands of Dealer subject to any applicable restrictions with respect to any
registration or qualification requirement or prospectus delivery requirement for such
Shares or Share Termination Delivery Property pursuant to any applicable federal or
state securities law (including, without limitation, any such requirement arising under
Section 5 of the Securities Act as a result of such Shares or Share Termination
Delivery Property being “restricted securities”, as such term is defined in Rule 144
under the Securities Act, or as a result of the sale of such Shares or





 


15







 







Share
Termination Delivery Property being subject to paragraph (c) of Rule 145 under the Securities Act) (such Shares or Share
Termination Delivery Property, “Restricted Shares”), then delivery of such
Restricted Shares shall be effected pursuant to either clause (i) or (ii) below at
the election of Company, unless Dealer waives the need for registration/private
placement procedures set forth in (i) and (ii) below. Notwithstanding the
foregoing, solely in respect of any Daily Number of Warrants exercised or deemed
exercised on any Expiration Date, Company shall elect, prior to the first Settlement
Date for the first Expiration Date, a Private Placement Settlement or Registration
Settlement for all deliveries of Restricted Shares for all such Expiration Dates
which election shall be applicable to all Settlement Dates for such Warrants and the
procedures in clause (i) or clause (ii) below shall apply for all such delivered
Restricted Shares on an aggregate basis commencing after the final Settlement Date
for such Warrants. The Calculation Agent shall make reasonable adjustments to
settlement terms and provisions under this Confirmation to reflect a single Private
Placement or Registration Settlement for such aggregate Restricted Shares delivered
hereunder.



	 	(i)	 	If Company elects to settle the Transaction pursuant to this
clause (i) (a “Private Placement Settlement”), then delivery of Restricted
Shares by Company shall be effected in customary private placement procedures
with respect to such Restricted Shares reasonably acceptable to Dealer;
provided that Company may not elect a Private Placement Settlement if, on the
date of its election, it has taken, or caused to be taken, any action that
would make unavailable either the exemption pursuant to Section 4(2) of the
Securities Act for the sale by Company to Dealer (or any affiliate designated
by Dealer) of the Restricted Shares or the exemption pursuant to Section 4(1)
or Section 4(3) of the Securities Act for resales of the Restricted Shares by
Dealer (or any such affiliate of Dealer). The Private Placement Settlement of
such Restricted Shares shall include customary representations, covenants, blue
sky and other governmental filings and/or registrations, indemnities to Dealer,
due diligence rights (for Dealer or any designated buyer of the Restricted
Shares by Dealer), opinions and certificates, and such other documentation as
is customary for private placement agreements, all reasonably acceptable to
Dealer. In the case of a Private Placement Settlement, Dealer shall determine
the appropriate discount to the Share Termination Unit Price (in the case of
settlement of Share Termination Delivery Units pursuant to paragraph (j) above)
or any Settlement Price (in the case of settlement of Shares pursuant to
Section 2 above) applicable to such Restricted Shares in a commercially
reasonable manner and appropriately adjust the number of such Restricted Shares
to be delivered to Dealer hereunder; provided that in no event shall such
number be greater than the Maximum Number of Shares. Notwithstanding the
Agreement or this Confirmation, the date of delivery of such Restricted Shares
shall be the Exchange Business Day following notice by Dealer to Company, of
such applicable discount and the number of Restricted Shares to be delivered
pursuant to this clause (i). For the avoidance of doubt, delivery of
Restricted Shares shall be due as set forth in the previous sentence and not be
due on the Share Termination Payment Date (in the case of settlement of Share
Termination Delivery Units pursuant to paragraph (j) above) or on the
Settlement Date for such Restricted Shares (in the case of settlement in Shares
pursuant to Section 2 above).






In the event Company shall not have delivered the full number of Restricted
Shares otherwise applicable as a result of the proviso above relating to the
Maximum Number of Shares (such deficit, the “Deficit Restricted Shares”),
Company shall be continually obligated to deliver, from time to time until
the full number of Deficit Restricted Shares have been delivered pursuant to
this paragraph, Restricted Shares when, and to the extent, that (i) Shares
are repurchased, acquired or otherwise received by Company or any of its
subsidiaries after the Trade Date (whether or not in exchange for cash, fair
value or any other consideration), (ii) authorized and unissued Shares
reserved for issuance in respect of other transactions prior to such date
which prior to the relevant date become no longer so reserved and (iii)
Company additionally authorizes any unissued Shares that are not reserved
for other transactions. Company shall immediately notify Dealer of the
occurrence of any of the foregoing events (including the number of
Shares subject to clause (i), (ii) or (iii) and the corresponding number of
Restricted Shares to be delivered) and promptly deliver such Restricted
Shares thereafter.


 


16







 











	 	(ii)	 	If Company elects to settle the Transaction pursuant to this
clause (ii) (a “Registration Settlement”), then Company shall promptly (but in
any event no later than the beginning of the Resale Period) file and use its
reasonable best efforts to make effective under the Securities Act a
registration statement or supplement or amend an outstanding registration
statement in form and substance reasonably satisfactory to Dealer, to cover the
resale of such Restricted Shares in accordance with customary resale
registration procedures, including covenants, conditions, representations,
underwriting discounts (if applicable), commissions (if applicable),
indemnities due diligence rights, opinions and certificates, and such other
documentation as is customary for equity resale underwriting agreements, all
reasonably acceptable to Dealer. If Dealer, in its sole reasonable discretion,
is not satisfied with such procedures and documentation Private Placement
Settlement shall apply. If Dealer is satisfied with such procedures and
documentation, it shall sell the Restricted Shares pursuant to such
registration statement during a period (the “Resale Period”) commencing on the
Exchange Business Day following delivery of such Restricted Shares (which, for
the avoidance of doubt, shall be (x) the Share Termination Payment Date in case
of settlement in Share Termination Delivery Units pursuant to paragraph (j)
above or (y) the Settlement Date in respect of the final Expiration Date for
all Daily Number of Warrants) and ending on the earliest of (i) the Exchange
Business Day on which Dealer completes the sale of all Restricted Shares or, in
the case of settlement of Share Termination Delivery Units, a sufficient number
of Restricted Shares so that the realized net proceeds of such sales equals or
exceeds the Payment Obligation (as defined above), (ii) the date upon which all
Restricted Shares have been sold or transferred pursuant to Rule 144 (or
similar provisions then in force) or Rule 145(d)(2) (or any similar provision
then in force) under the Securities Act and (iii) the date upon which all
Restricted Shares may be sold or transferred by a non-affiliate pursuant to
Rule 144 (or any similar provision then in force) or Rule 145(d)(2) (or any
similar provision then in force) under the Securities Act. If the Payment
Obligation exceeds the realized net proceeds from such resale, Company shall
transfer to Dealer by the open of the regular trading session on the Exchange
on the Exchange Trading Day immediately following the last day of the Resale
Period the amount of such excess (the “Additional Amount”) in cash or in a
number of Shares (“Make-whole Shares”) in an amount that, based on the
Settlement Price on the last day of the Resale Period (as if such day was the
“Valuation Date” for purposes of computing such Settlement Price), has a dollar
value equal to the Additional Amount; provided that in no event shall the
number of Make-Whole Shares exceed the Maximum Number of Shares. The Resale
Period shall continue to enable the sale of the Make-whole Shares. If Company
elects to pay the Additional Amount in Shares, the requirements and provisions
for Registration Settlement shall apply. This provision shall be applied
successively until the Additional Amount is equal to zero. In no event shall
Company deliver a number of Restricted Shares greater than the Maximum Number
of Shares.







	 	(iii)	 	Without limiting the generality of the foregoing, Company
agrees that any Restricted Shares delivered to Dealer, as purchaser of such
Restricted Shares, (i) may be transferred by and among Dealer and its
affiliates and Company shall effect such transfer without any further action by
Dealer and (ii) after the period of 6 months from the Trade Date (or 1 year
from the Trade Date if, at such time, informational requirements of Rule 144(c)
are not satisfied with respect to Company) has elapsed after any Settlement
Date for such Restricted Shares, Company shall promptly remove, or cause the
transfer agent for such Restricted Shares to remove, any legends referring to
any such restrictions or requirements from such Restricted Shares upon request
by Dealer (or such affiliate of Dealer) to Company or such transfer agent,
without any requirement for the delivery of any certificate, consent,
agreement, opinion of counsel, notice or any other document, any transfer tax
stamps or payment of any other amount or any other action by Dealer (or such
affiliate of Dealer).





 


17









 
















If the Private Placement Settlement or the Registration Settlement shall not be
effected as set forth in clauses (i) or (ii), as applicable, then failure to effect
such Private Placement Settlement or such Registration Settlement shall constitute
an Event of Default with respect to which Company shall be the Defaulting Party.




	 	(l)	 	Limit on Beneficial Ownership. Notwithstanding any other provisions
hereof, Dealer may not exercise any Warrant hereunder, have the “right to acquire”
(within the meaning of NYSE Rule 312.04(g)) Shares upon exercise of any Warrant
hereunder or be entitled to take delivery of any Shares deliverable hereunder, and
Automatic Exercise shall not apply with respect to any Warrant hereunder, to the extent
(but only to the extent) that, after such receipt of any Shares upon the exercise of
such Warrant or otherwise hereunder, (i) the Share Amount would exceed the
Post-Effective Limit, or (ii) Dealer Group would directly or indirectly beneficially
own (as such term is defined for purposes of Section 13 or Section 16 of the Exchange
Act and rules promulgated thereunder) in excess of 7.5% of the then outstanding Shares
(the “Threshold Number of Shares”). Any purported delivery hereunder shall be void and
have no effect to the extent (but only to the extent) that, after such delivery, (i)
the Share Amount would exceed the Post-Effective Limit, or (ii) Dealer Group would
directly or indirectly so beneficially own in excess of the Threshold Number of Shares.
If any delivery owed to Dealer hereunder is not made, in whole or in part, as a result
of this provision, Company’s obligation to make such delivery shall not be extinguished
and Company shall make such delivery as promptly as practicable after, but in no event
later than one Business Day after, Dealer gives notice to Company that, after such
delivery, (i) the Share Amount would not exceed the Post-Effective Limit, and (ii)
Dealer Group would not directly or indirectly so beneficially own in excess of the
Threshold Number of Shares. Company agrees to use its reasonable best efforts to seek
approval from its shareholders in accordance with the requirements of NYSE Rule
312.03(c) for the issuance pursuant to the Transaction of a number of Shares equal to
1.5 times the original Number of Shares. If Company succeeds in obtaining such
approval for such an increase, then (A) the Maximum Number of Shares shall be
automatically increased to 1.5 times the original Number of Shares and (B) the
Additional Termination Event in Section 9(h)(ii)(E) shall no longer be applicable.







	 	(m)	 	Share Deliveries. Company acknowledges and agrees that, to the extent
the holder of this Warrant is not then an affiliate and has not been an affiliate for
90 days (it being understood that Dealer will not be considered an affiliate under this
paragraph solely by reason of its receipt of Shares pursuant to this Transaction), and
otherwise satisfies all holding period and other requirements of Rule 144 of the
Securities Act applicable to it, any delivery of Shares or Share Termination Delivery
Property hereunder at any time after 6 months from the Trade Date (or 1 year from the
Trade Date if, at such time, informational requirements of Rule 144(c) are not
satisfied with respect to Company) shall be eligible for resale under Rule 144 of the
Securities Act and Company agrees to promptly remove, or cause the transfer agent for
such Shares or Share Termination Delivery Property, to remove, any legends referring to
any restrictions on resale under the Securities Act from the Shares or Share
Termination Delivery Property. Company further agrees that any delivery of Shares or
Share Termination Delivery Property prior to the date that is 6 months from the Trade
Date (or 1 year from the Trade Date if, at such time, informational requirements of
Rule 144(c) are not satisfied with respect to Company), may be transferred by and among
Dealer and its affiliates and Company shall effect such transfer without any further
action by Dealer. Notwithstanding anything to the contrary herein, Company agrees that
any delivery of Shares or Share Termination Delivery Property shall be effected by
book-entry transfer through the facilities of DTC, or any successor depositary, if at
the time of delivery, such class of Shares or class of Share Termination Delivery
Property is in book-entry form at DTC or such successor depositary. Notwithstanding
anything to the contrary herein, to the extent the provisions of Rule 144 of the
Securities Act or any successor rule are amended, or the applicable interpretation
thereof by the Securities and Exchange Commission or any court change after the Trade
Date, the agreements of Company herein shall be deemed modified to the extent
necessary, in the opinion of outside counsel of Company, to comply with Rule 144 of the
Securities Act, as in effect at the time of delivery of the relevant Shares or Share
Termination Delivery Property.





 


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	 	(n)	 	Waiver of Jury Trial. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Transaction. Each party (i) certifies that
no representative, agent or attorney of the other party has represented, expressly or
otherwise, that such other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the
other party have been induced to enter into this Transaction, as applicable, by, among
other things, the mutual waivers and certifications provided herein.







	 	(o)	 	Tax Disclosure. Effective from the date of commencement of discussions
concerning the Transaction, Company and each of its employees, representatives, or
other agents may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure of the Transaction and all materials of any kind
(including opinions or other tax analyses) that are provided to Company relating to
such tax treatment and tax structure.







	 	(p)	 	Maximum Share Delivery. Notwithstanding any other provision of this
Confirmation or the Agreement, in no event will Company be required to deliver more
than the Maximum Number of Shares in the aggregate to Dealer in connection with this
Transaction, subject to the provisions regarding Deficit Restricted Shares







	 	(q)	 	Right to Extend. Dealer may postpone, in whole or in part, any
Expiration Date or any other date of valuation or delivery with respect to some or all
of the relevant Warrants (in which event the Calculation Agent shall make appropriate
adjustments to the Daily Number of Warrants with respect to one or more Expiration
Dates) if Dealer determines, in its commercially reasonable judgment, that such
extension is reasonably necessary or appropriate to preserve Dealer’s hedging or hedge
unwind activity hereunder in light of existing liquidity conditions or to enable Dealer
to effect purchases of Shares in connection with its hedging, hedge unwind or
settlement activity hereunder in a manner that would, if Dealer were Issuer or an
affiliated purchaser of Issuer, be in compliance with applicable legal, regulatory or
self-regulatory requirements, or with related policies and procedures applicable to
Dealer.







	 	(r)	 	Status of Claims in Bankruptcy. Dealer acknowledges and agrees that
this Confirmation is not intended to convey to Dealer rights against Company with
respect to the Transaction that are senior to the claims of common stockholders of
Company in any United States bankruptcy proceedings of Company; provided that nothing
herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the
event of a breach by Company of its obligations and agreements with respect to the
Transaction; provided, further, that nothing herein shall limit or shall be deemed to
limit Dealer’s rights in respect of any transactions other than the Transaction.







	 	(s)	 	Securities Contract; Swap Agreement. The parties hereto intend for:
(a) the Transaction to be a “securities contract” and a “swap agreement” as defined in
the Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”), and
the parties hereto to be entitled to the protections afforded by, among other Sections,
Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code; (b)
a party’s right to liquidate the Transaction and to exercise any other remedies upon
the occurrence of any Event of Default under the Agreement with respect to the other
party to constitute a “contractual right” as described in the Bankruptcy Code; and (c)
each payment and delivery of cash, securities or other property hereunder to constitute
a “margin payment” or “settlement payment” and a “transfer” as defined in the
Bankruptcy Code.





 


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	 	(t)	 	Early Unwind. In the event the sale of the “Underwritten Securities”
(as defined in the Underwriting Agreement) is not consummated with the Underwriters for
any reason, or if Company fails to deliver to Dealer opinions of counsel as required
pursuant to Section 9(a), in each case by 5:00 p.m. (New York City time) on the Premium
Payment Date, or such later date as agreed upon by the parties (the Premium Payment
Date or such later date, the “Early Unwind Date”), the Transaction shall automatically
terminate (the “Early Unwind”), on the Early Unwind Date and (i) the Transaction and
all of the respective rights and obligations of Dealer and Company under the
Transaction shall be cancelled and terminated and (ii) each party shall be released and
discharged by the other party from and agrees not to make any claim against the other
party with respect to any obligations or liabilities of the other party arising out
of and to be performed in connection with the Transaction either prior to or after
the Early Unwind Date; provided that Company shall reimburse Dealer for any costs or
expenses (including market losses) relating to the unwinding of its hedging
activities in connection with the Transaction (including any loss or cost incurred
as a result of terminating, liquidating, obtaining or reestablishing any hedge or
related trading position of Dealer or one or more of its affiliates in connection
with the Transaction). The amount of any such reimbursement shall be determined by
Dealer in its sole good faith discretion. Dealer shall notify Company of such amount
and Company shall pay such amount in immediately available funds on the Early Unwind
Date. Each of Dealer and Company represent and acknowledge to the other that,
subject to the proviso included in this Section, upon an Early Unwind, all
obligations with respect to the Transaction shall be deemed fully and finally
discharged.







	 	(u)	 	Payment by Dealer. In the event that (i) an Early Termination Date
occurs or is designated with respect to the Transaction as a result of a Termination
Event or an Event of Default (other than an Event of Default arising under Section
5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Dealer owes to Company an
amount calculated under Section 6(e) of the Agreement, or (ii) Dealer owes to Company,
pursuant to Section 12.7 or Section 12.9 of the Equity Definitions, an amount
calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to
be zero.







 


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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing
this Confirmation and returning it to EDG Confirmation Group, J.P. Morgan Securities Inc., 277 Park
Avenue, 11th Floor, New York, NY 10172-3401, or by fax to (212) 622 8519.



Very truly yours,


	 	 	 	 	 
	 	J.P. Morgan Securities Inc., as agent for

JPMorgan Chase Bank, National Association

 	 
	 	By:  	/s/
Michael O’Donovan 	 
	 	 	Authorized Signatory 	 
	 	 	Name: Michael O’Donovan	 
	 



Accepted
and confirmed as of the Trade Date:


Exterran Holdings, Inc.


	 	 	 	 	 	 	 
	 
	 	By: 	 	/s/ J. Michael Anderson 	 	 
	 
	 	 	 	 
 

Authorized Signatory
	 	 
	 
	 	 	 	Name: J. Michael Anderson	 	 





JPMorgan Chase Bank, National Association

Organised under the laws of the United States as a National Banking Association

Main Office 1111 Polaris Parkway, Columbus, Ohio 43271

Registered as a branch in England & Wales branch No. BR000746

Registered Branch Office 125 London Wall, London EC2Y 5AJ

Authorised and regulated by the Financial Services Authority




 


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