SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit
4.1
SECOND
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made
and entered into as of June 26, 2009 by and between Boardwalk Pipeline
Partners, LP, a Delaware limited partnership (the “Partnership”), and
Boardwalk Pipelines Holding Corp., a Delaware corporation (the “Purchaser”).
WHEREAS,
the Partnership and the Purchaser previously entered into a Registration Rights
Agreement (the “Original Agreement”)
dated as of June 17, 2008 in connection with the closing of the issuance and
sale of Class B Units pursuant to the Class B Unit Purchase Agreement, dated as
of April 24, 2008, by and between the Partnership and the Purchaser (the “Class B Purchase
Agreement”);
WHEREAS,
the Partnership and the Purchaser previously entered into an Amended and
Restated Registration Rights Agreement (the “Amended and Restated
Agreement”) dated as of November 4, 2008 in connection with the
closing of the issuance and sale of Common Units pursuant to the Unit Purchase
Agreement, dated as of October 30, 2008, by and between the Partnership and
the Purchaser (the “October 2008 Purchase
Agreement”);
ARTICLE
I
“Agreement” has the
meaning given to such term in the introductory paragraph.
“Class B Units” has
the meaning given to such term in the Partnership Agreement.
“Effectiveness Period”
has the meaning given to such term in Section 2.01 of this
Agreement.
“Holder” means the
record holder of (i) any Registrable Securities and (ii) Class B Units prior to
their conversion into Common Units.
“June 2009 Purchase
Agreement” has the meaning given to such term in the Recitals of this
Agreement.
“Losses” has the
meaning given to such term in Section 2.07(a) of this
Agreement.
“Managing Underwriter”
means, with respect to any Underwritten Offering, the book-running lead manager
of such Underwritten Offering.
“Purchaser” has the
meaning given to such term in the introductory paragraph of this
Agreement.
“Registrable
Securities” means an amount of Common Units equal to the aggregate number
of Common Units issued pursuant to the June 2009 Purchase Agreement, the
October 2008 Purchase Agreement and the aggregate number of Common Units
into which the Class B Units issued pursuant to the Class B Purchase Agreement
are convertible, which Registrable Securities are subject to the rights provided
herein until such rights terminate pursuant to the provisions
hereof.
“Registration
Expenses” has the meaning given to such term in Section 2.06(b) of this
Agreement.
“Selling Expenses” has
the meaning given to such term in Section 2.06(b) of this
Agreement.
“Selling Holder” means
a Holder who is selling Registrable Securities pursuant to a registration
statement.
“Registration
Statement” has the meaning given to such term in Section 2.01 of this
Agreement.
“Underwritten
Offering” means an offering (including an offering pursuant to a
Registration Statement) in which Common Units are sold to one or more
underwriters on a firm commitment basis for reoffering to the public or an
offering that is a “bought deal” with one or more investment banks.
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ARTICLE
II
3
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(a) prepare
and file with the Commission such amendments and supplements to
each Registration Statement and the prospectus used in connection therewith
as may be necessary to keep each Registration Statement effective for the
Effectiveness Period and as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
covered by such Registration Statement;
(b) if
a prospectus supplement will be used in connection with the marketing of an
Underwritten Offering from a Registration Statement and the Managing
Underwriter at any time shall notify the Partnership in writing that, in the
sole judgment of such Managing Underwriter, inclusion of detailed information to
be used in such prospectus supplement is of material importance to the success
of the Underwritten Offering, the Partnership shall use its commercially
reasonable efforts to include such information in such prospectus
supplement;
(c) furnish
to each Selling Holder (i) as far in advance as reasonably practicable before
filing a Registration Statement or any supplement or amendment thereto,
upon request, copies of reasonably complete drafts of all such documents
proposed to be filed (including exhibits and each document incorporated by
reference therein to the extent then required by the rules and regulations of
the Commission), and provide each such Selling Holder the opportunity to object
to any information pertaining to such Selling Holder and its plan of
distribution that is contained therein and make the corrections reasonably
requested by such Selling Holder with respect to such information prior to
filing a Registration Statement or supplement or amendment thereto, and
(ii) such number of copies of such Registration Statement and the
prospectus included therein and any supplements and amendments thereto as such
Selling Holder may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities covered by such Registration
Statement;
(d) if
applicable, use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by a Registration Statement under the
securities or blue sky laws of such jurisdictions as the Selling Holders or, in
the case of an Underwritten Offering, the Managing Underwriter, shall reasonably
request; provided,
however, that the Partnership will not be required to qualify generally
to transact business in any jurisdiction where it is not then required to so
qualify or to take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject;
(e) promptly
notify each Selling Holder and each underwriter, at any time when a prospectus
relating to the offering of Registrable Securities is required to be
delivered under the Securities Act, of (i) the filing of a Registration
Statement or any prospectus or prospectus supplement to be used in connection
therewith, or any amendment or supplement thereto, and, with respect to such
Registration Statement or any post-effective amendment thereto, when the same
has become effective; and (ii) any written comments from the Commission with
respect to any filing referred to in clause (i) and any written request by the
Commission for amendments or supplements to a Registration Statement or any
prospectus or prospectus supplement thereto;
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(f) immediately
notify each Selling Holder and each underwriter, at any time when a prospectus
relating to the offering of Registrable Securities is required to be delivered
under the Securities Act, of (i) the happening of any event as a result of which
the prospectus or prospectus supplement contained in a Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of the prospectus
contained therein, in the light of the circumstances under which a statement is
made); (ii) the issuance or threat of issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement, or the
initiation of any proceedings for that purpose; or (iii) the receipt by the
Partnership of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction. Following the
provision of such notice, the Partnership agrees to, as promptly as practicable,
amend or supplement the prospectus or prospectus supplement or take other
appropriate action so that the prospectus or prospectus supplement does not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and to take such
other reasonable action as is necessary to remove a stop order, suspension,
threat thereof or proceedings related thereto;
(g) upon
request and subject to appropriate confidentiality obligations, furnish to each
Selling Holder copies of any and all transmittal letters or other correspondence
with the Commission or any other governmental agency or self-regulatory body or
other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering of Registrable Securities;
(h) in
the case of an Underwritten Offering, furnish upon request, (i) an opinion of
counsel for the Partnership dated the date of the closing under the underwriting
agreement, and (ii) a “cold comfort” letter, dated the pricing date of such
Underwritten Offering (to the extent available) and a letter of like kind
dated the date of the closing under the underwriting agreement, in each case,
signed by the independent public accountants who have certified the
Partnership’s financial statements included or incorporated by reference into
the applicable registration statement, and each of the opinion and the “cold
comfort” letter shall be in customary form and covering substantially the same
matters with respect to such registration statement (and the prospectus and any
prospectus supplement included therein) as have been customarily covered in
opinions of issuer’s counsel and in accountants’ letters delivered to the
underwriters in Underwritten Offerings of securities by the Partnership and such
other matters as such underwriters and Selling Holders may reasonably
request;
(i) otherwise
use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
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(j) make
available to the appropriate representatives of the Managing Underwriter and
Selling Holders access to such information and Partnership personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act;
(k) cause
all such Registrable Securities registered pursuant to this Agreement to be
listed on each securities exchange or nationally recognized quotation system on
which similar securities issued by the Partnership are then listed;
(l) use
its commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Partnership
to enable the Selling Holders to consummate the disposition of such Registrable
Securities;
(m) provide
a transfer agent and registrar for all Registrable Securities covered by a
Registration Statement not later than the effective date of such Registration
Statement; and
(n) enter
into customary agreements and take such other actions as are reasonably
requested by the Selling Holders or the underwriters, if any, in order to
expedite or facilitate the disposition of such Registrable
Securities.
Each
Selling Holder, upon receipt of notice from the Partnership of the happening of
any event of the kind described in subsection (f) of this Section 2.04, shall forthwith
discontinue disposition of the Registrable Securities until such Selling
Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (f) of this Section 2.04 or until it is
advised in writing by the Partnership that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings
incorporated by reference in the prospectus, and, if so directed by the
Partnership, such Selling Holder will, or will request the managing underwriter
or underwriters, if any, to deliver to the Partnership (at the Partnership’s
expense) all copies in their possession or control, other than permanent file
copies then in such Selling Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
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(b) Certain
Definitions. “Registration
Expenses” means all expenses incident to the Partnership’s performance
under or compliance with this Agreement to effect the registration of
Registrable Securities on a Registration Statement pursuant to Section 2.01 and/or
in connection with an Underwritten Offering pursuant to Section 2.02(a), and
the disposition of such Registrable Securities, including, without limitation,
all registration, filing, securities exchange listing and New York Stock
Exchange fees, all registration, filing, qualification and other fees and
expenses of complying with securities or blue sky laws, fees of the Financial
Industry Regulatory Authority, fees of transfer agents and registrars, all word
processing, duplicating and printing expenses, any transfer taxes and the fees
and disbursements of counsel and independent public accountants for the
Partnership, including the expenses of any special audits or “cold comfort”
letters required by or incident to such performance and
compliance. “Selling Expenses”
means underwriting fees, discounts and selling commissions allocable to the sale
of the Registrable Securities.
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9
(a) make
and keep public information regarding the Partnership available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
from and after the date hereof;
(b) file
with the Commission in a timely manner all reports and other documents required
of the Partnership under the Exchange Act at all times from and after the date
hereof; and
(c) so
long as a Holder owns any Registrable Securities, furnish to such Holder
forthwith upon request a copy of the most recent annual or quarterly report of
the Partnership, and such other reports and documents so filed as such Holder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
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ARTICLE
III
(a) if
to the Purchaser:
Boardwalk
Pipelines Holding Corp.
0
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
with a
copy to:
Loews
Corporation
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
11
(b) if
to a transferee of the Purchaser, to such Holder at the address provided
pursuant to Section
2.09;
and
(c) if
to the Partnership:
0
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
All such
notices and communications shall be deemed to have been received at the time
delivered by hand, if personally delivered; when receipt acknowledged, if sent
via facsimile or sent via Internet electronic mail; and when actually received,
if sent by courier service or any other means.
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Section
3.08 Governing Law. THIS AGREEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
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|
By: BOARDWALK
GP, LP
|
|
(its
General Partner)
|
By: BOARDWALK GP,
LLC
(its General
Partner)
By: /s/ Xxxxx
X. Xxxxxxx
Name: Xxxxx X.
Xxxxxxx
Title: Chief
Financial Officer
BOARDWALK PIPELINES HOLDING
CORP.
By: /s/ Xxxxx
X. Xxxxxxx
Name: Xxxxx X.
Xxxxxxx
Title: Chief
Financial Officer