Common use of Subsequent Public Offerings Clause in Contracts

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common Units, from the date of this Agreement until the Lock-Up Date, the Company shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units or other equity or voting securities of the Company, any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common Units, (ii) the issuance of Common Units or options to purchase Common Units or phantom Common Units granted pursuant to the Company’s existing long-term incentive plan, (iii) the issuance or sale of Common Units issued or sold in a registered public offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or in a private offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) and (iv) the issuance of Common Units as purchase price consideration in connection with future acquisitions that are accretive to cash flow per Common Unit. Notwithstanding the foregoing, the Company shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company Constellation Energy shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units or other equity or voting securities of the CompanyConstellation Energy, any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common Units, (ii) the issuance of Awards (as defined in Constellation Energy’s Long-Term Incentive Plan) or the issuance of Common Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the CompanyConstellation Energy’s existing longLong-term incentive planTerm Incentive Plan, (iii) the issuance or sale of up to an aggregate of 5,000,000 Common Units issued or sold in a registered public offering to finance future acquisitions acquisition(s) that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or in a private offering to finance future acquisitions acquisition(s) that are expected to be accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitionsacquisition(s)) at a price no less than 105% of the Common Unit Price and (iv) the issuance of up to 1,500,000 Common Units and a new series of equity securities of Constellation Energy as purchase price consideration in connection with future acquisitions acquisition(s) that are expected to be accretive to cash flow per Common Unit. Notwithstanding the foregoing, the Company Constellation Energy shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common Class D Units and the Purchased Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company Linn Energy shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units or Class D Units or other equity or voting securities of the CompanyLinn Energy, any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common Class D Units and the Purchased Units, (ii) the issuance of Common Awards (as defined in Linn Energy’s Long-Term Incentive Plan) or the issuance of Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the CompanyLinn Energy’s existing long(a) Long-term incentive planTerm Incentive Plan or (b) Memorandum of Understanding Regarding Compensation Arrangements for Members of its Board of Directors, (iii) the issuance or sale of Common up to an aggregate of 30 million Units issued or sold in a registered public offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or Class D Unit Price, as the case may be, or in a private offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 105% of the Unit Price or Class D Unit Price, as the case may be and (iv) the issuance of Common up to 30 million Units as purchase price consideration in connection with future acquisitions that are accretive to cash flow per Common Unit. Notwithstanding the foregoing, the Company Linn Energy shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Class D Units or the Purchased Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Class D Units or the Purchased Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common UnitsStock, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company Concho shall not, and shall cause its directors, officers and Affiliates that are under the control of Concho not to, grant, issue or sell any Common Units Stock or other equity or voting securities of the CompanyConcho, any securities convertible into or exchangeable therefor therefore or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common UnitsStock, (ii) the issuance of Awards (as defined in Concho’s 2006 Stock Incentive Plan) or the issuance of Common Units or Stock upon the exercise of options to purchase Common Units or phantom Common Units Stock granted pursuant to the CompanyConcho’s existing long-term incentive plan2006 Stock Incentive Plan, (iii) the issuance entrance by any of Concho’s officers or sale of Common Units issued or sold in a registered public offering directors into any Rule 10b5-1 plans, so long as no sales occur under such Rule 10b5-1 plans prior to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or in a private offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) and Lock-Up Date, (iv) the issuance sales by any of Concho’s officers or directors of shares of Common Units Stock in accordance with Rule 10b5-1 plans in existence as purchase price consideration in connection of the date of this Agreement or (v) sales of Common Stock for the purposes of satisfying tax liabilities associated with future acquisitions that are accretive the vesting or exercise of awards of Common Stock granted pursuant to cash flow per Common UnitConcho’s existing 2006 Stock Incentive Plan. Notwithstanding the foregoing, the Company Concho shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Units Stock in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Units Stock to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company BreitBurn shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units Units, or other equity or voting securities of the CompanyBreitBurn (“Partnership Securities”), any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common Units, (ii) the issuance of Awards (as defined in BreitBurn’s 2006 Long-Term Incentive Plan), the issuance of Common Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the Company’s existing longBreitBurn 2006 Long-term incentive Term Incentive Plan and the issuance of any equity or equity-based security pursuant to a management or employee benefit plan or in connection with the restructuring of such a plan, (iii) the issuance or sale of Common Units issued or sold in a private offering or a registered public offering to repay indebtedness incurred in connection with the Hermes Acquisition or to finance future acquisitions that are accretive to distributable cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or in a private offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) and ), (iv) the issuance or sale of Common Units issued, including without limitation to Provident Energy Trust and its affiliates and Hermes, as payment of any part of the purchase price consideration for businesses that are acquired by the Partnership from Provident Energy Trust and its affiliates or any third party, and (v) the issuance or sale of Common Units to Hermes in connection with future acquisitions that are accretive to cash flow per Common Unitthe Hermes Acquisition. Notwithstanding the foregoing, the Company BreitBurn shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Class F Units and the Purchased Common Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company Constellation Energy shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units, Class F Units or other equity or voting securities of the CompanyConstellation Energy, any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Class F Units and the Purchased Common Units, (ii) the issuance of Awards (as defined in Constellation Energy’s Long-Term Incentive Plan) or the issuance of Common Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the CompanyConstellation Energy’s existing longLong-term incentive planTerm Incentive Plan, (iii) the issuance or sale of up to an aggregate of 5,000,000 Common Units issued or sold in a registered public offering to finance future acquisitions acquisition(s) that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or Class F Unit Price, as the case may be, or in a private offering to finance future acquisitions acquisition(s) that are expected to be accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitionsacquisition(s)) and at a price no less than 105% of the Common Unit Price or Class F Unit Price, as the case may be, (iv) the issuance of up to 1,500,000 Common Units and a new series of equity securities of Constellation Energy as purchase price consideration in connection with future acquisitions acquisition(s) that are expected to be accretive to cash flow per Common UnitUnit and (v) the issuance of up to $150 million in a new series of equity securities of Constellation Energy (the “Class G Units”) and Common Units (collectively the “Additional Units”) the proceeds of which will be used to fund a portion of the purchase price by Constellation Energy of an acquisition that will close within 60 days following the Closing Date, provided that offers to purchase such Additional Units will be made to private investors (all of which shall be allocated to the Purchasers pro rata based on the allocations in Schedule 2.01, and the balance, if any, to such Purchasers and/or any additional investors selected by Constellation Energy) at a price per Common Unit and Class G Unit to be determined in a manner consistent with the formula used to calculate the Common Unit Price and Class F Unit Price in Section 2.01(c), provided, however, that each Purchaser shall have the right, but not the obligation, to purchase such Additional Units. If any Purchaser decides not to purchase all of the Additional Units that it has a right to purchase hereunder (the “Unallocated Units”), then the other Purchasers shall not have the right to purchase such Unallocated Units pro rata based on that Purchaser’s respective Commitment Amount set forth in Schedule 2.01 to the Purchase Agreement. The Company shall have the right, in its sole discretion, to allocate the Unallocated Units to certain accredited investors or to any Purchaser. Notwithstanding the foregoing, the Company Constellation Energy shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Class F Units or the Purchased Common Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Class F Units or the Purchased Common Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common Class B Units and the Purchased Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company Linn shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units or Class B Units or other equity or voting securities of the CompanyLinn, any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common Class B Units and the Purchased Units, (ii) the issuance of Common Awards (as defined in Linn’s Long-Term Incentive Plan) or the issuance of Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the CompanyLinn’s existing long(a) Long-term incentive planTerm Incentive Plan or (b) Memorandum of Understanding Regarding Compensation Arrangements for Members of its Board of Directors, (iii) the issuance or sale of Common up to an aggregate of 15 million Units issued or sold in a registered public offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or Class B Unit Price, as the case may be, or in a private offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 105% of the Unit Price or Class B Unit Price, as the case may be, and (iv) the issuance of Common up to 5 million Units as purchase price consideration in connection with future acquisitions that are accretive to cash flow per Common Unit. Notwithstanding the foregoing, the Company Linn shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Class B Units or the Purchased Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Class B Units or the Purchased Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company BreitBurn shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units Units, or other equity or voting securities of the CompanyBreitBurn (“Partnership Securities”), any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common Units, (ii) the issuance of Awards (as defined in BreitBurn’s 2006 Long-Term Incentive Plan), the issuance of Common Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the Company’s existing longBreitBurn 2006 Long-term incentive Term Incentive Plan and the issuance of equity-based securities pursuant to a management or employee benefit plan or in connection with the restructuring of such a plan, (iii) the issuance or sale of Common Units Partnership Securities issued or sold in a registered public offering to finance future acquisitions that are accretive to distributable cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or in a private offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) and ), (iv) the issuance or sale of Common Units Partnership Securities issued, including without limitation to Provident Energy Trust and its affiliates, as payment of any part of the purchase price consideration in connection with future acquisitions for businesses that are accretive acquired by the Partnership from Provident Energy Trust and its affiliates or any third party, and (v) the issuance or sale of Partnership Securities issued or sold through a private placement provided that (Y) the Purchasers individually are granted the right to cash flow per Common Unitparticipate in such private placement and to purchase a percentage of the Partnership Securities sold in such private placement pro rata based upon their purchase of the Purchased Units sold hereby and (Z) each party participating in such private placement shall agree that it will not sell any of its Partnership Securities for a period of 90-days following the closing of such private placement. Notwithstanding the foregoing, the Company BreitBurn shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Common Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company BreitBurn shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units Units, or other equity or voting securities of the CompanyBreitBurn (“Partnership Securities”), any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Common Units, (ii) the issuance of Awards (as defined in BreitBurn’s 2006 Long-Term Incentive Plan), the issuance of Common Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the Company’s existing longBreitBurn 2006 Long-term incentive Term Incentive Plan and the issuance of equity-based securities pursuant to a management or employee benefit plan or in connection with the restructuring of such a plan, (iii) the issuance or sale of Common Units Partnership Securities issued or sold in a registered public offering to finance future acquisitions that are accretive to distributable cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or in a private offering to finance future acquisitions that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) and ), (iv) the issuance or sale of Common Units Partnership Securities issued, including without limitation to Provident Energy Trust and its affiliates, as payment of any part of the purchase price consideration in connection with future acquisitions for businesses that are accretive acquired by the Partnership from Provident Energy Trust and its affiliates or any third party, and (v) the issuance or sale of Partnership Securities issued or sold through a private placement provided that (Y) subject to cash flow per Common Unitthose rights granted under the Calumet Unit Purchase Agreement, the Purchasers individually are granted the right to participate in such private placement and to purchase a percentage of the Partnership Securities sold in such private placement pro rata based upon their purchase of the Purchased Units sold hereby and (Z) each party participating in such private placement shall agree that it will not sell any of its Partnership Securities for a period of 90-days following the closing of such private placement. Notwithstanding the foregoing, the Company BreitBurn shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Common Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Common Units to the Purchasers.

Subsequent Public Offerings. Without the written consent of the holders of a majority of the Purchased Class E Units and the Purchased Common Units, taken as a whole, from the date of this Agreement until the Lock-Up Date, the Company Constellation Energy shall not, and shall cause its directors, officers and Affiliates not to, grant, issue or sell any Common Units, Class E Units or other equity or voting securities of the CompanyConstellation Energy, any securities convertible into or exchangeable therefor or take any other action that may result in the issuance of any of the foregoing, other than (i) the issuance of the Purchased Class E Units and the Purchased Common Units, (ii) the issuance of Awards (as defined in Constellation Energy’s Long-Term Incentive Plan) or the issuance of Common Units or upon the exercise of options to purchase Common Units or phantom Common Units granted pursuant to the CompanyConstellation Energy’s existing longLong-term incentive planTerm Incentive Plan, (iii) the issuance or sale of up to an aggregate of 5,000,000 Common Units issued or sold in a registered public offering to finance future acquisitions acquisition(s) that are accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitions) at a price no less than 110% of the Common Unit Price or Class E Unit Price, as the case may be, or in a private offering to finance future acquisitions acquisition(s) that are expected to be accretive to cash flow per Common Unit (or the repayment of indebtedness incurred in connection with such accretive acquisitionsacquisition(s)) and at a price no less than 105% of the Common Unit Price or Class E Unit Price, as the case may be, (iv) the issuance of Common up to 1,000,000 Units as purchase price consideration in connection with future acquisitions acquisition(s) that are expected to be accretive to cash flow per Common UnitUnit and (v) the issuance of up to $30 million in additional Class E Units and Common Units (“Additional Units”) the proceeds of which will be used to fund a portion of the purchase price by Constellation Energy of the Xxxx Family Interests in the assets and entities that are subject to the tag-along obligation associated with the EnergyQuest Acquisition, provided that offers to purchase such Additional Units will be made to private investors ($20 million of which shall be allocated the Purchasers pro rata based on the allocations in Schedule 2.01, and the balance, if any, to such Purchasers and/or not more than one additional investor selected by Constellation Energy) at a price per Common Unit and Class E Unit to be determined in a manner consistent with the formula used to calculate the Common Unit Price and Class E Unit Price in Section 2.01(c), provided, however, that each Purchaser shall have the right, but not the obligation, to purchase such Additional Units. Notwithstanding the foregoing, the Company Constellation Energy shall not, and shall cause its directors, officers and Affiliates not to, sell, offer for sale or solicit offers to buy any security (as defined in the Securities Act) that would be integrated with the sale of the Purchased Class E Units or the Purchased Common Units in a manner that would require the registration under the Securities Act of the sale of the Purchased Class E Units or the Purchased Common Units to the Purchasers.