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”);
WHEREAS,
this Agreement is made to amend and restate the Amended and Restated Agreement
in connection with the closing of the issuance and sale of Common Units pursuant
to the Unit Purchase Agreement, dated as of June 23, 2009, by and
between the Partnership and the Purchaser (the “June 2009 Purchase
Agreement”);
WHEREAS,
the Partnership has agreed to provide the registration and other rights set
forth in this Agreement for the benefit of the Purchaser pursuant to the
June 2009 Purchase Agreement; and
WHEREAS,
it is a condition to the obligations of the Purchaser and the Partnership under
the June 2009 Purchase Agreement that this Agreement be executed and
delivered.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by each party hereto, the Amended and Restated
Agreement is hereby amended and restated as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions. Capitalized
terms used herein without definition shall have the meanings given to them in
the June 2009 Purchase Agreement. The terms set forth below are
used herein as so defined:
“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.
Section
1.02 Registrable
Securities. Any Registrable Security will cease to be a
Registrable Security (a) at the time a registration statement covering such
Registrable Security has been declared effective by the Commission and such
Registrable Security has been sold or disposed of pursuant to such effective
registration statement; (b) at the time such Registrable Security (or Class B
Unit) has been disposed of pursuant to Rule 144 (or any similar provision then
in effect under the Securities Act); (c) 10 years after the Purchaser ceases to
be an Affiliate of the general partner of the Partnership (including where the
General Partner ceases to be the general partner of the Partnership); (d) if
such Registrable Security (or Class B Unit) is held by the Partnership or one of
its subsidiaries; (e) at the time such Registrable Security (or Class B Unit)
has been sold in a private transaction in which the transferor’s rights under
this Agreement are not assigned to the transferee of such securities; or (f) if
such Registrable Security (or Class B Unit) has been sold in a private
transaction in which the transferor’s rights under this Agreement are assigned
to the transferee and such transferee is not an Affiliate of the general partner
of the Partnership, at the time that is two years following (x) in the event
that Class B Units are sold, the later of (i) the conversion of such Class B
Units into Common Units and (ii) the transfer of such Registrable Security to
such transferee or (y) in the case of any other transfer of Registrable
Securities, the transfer of such Registrable Security to such
transferee.
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ARTICLE
II
REGISTRATION
RIGHTS
Section
2.01 Demand
Registration. Upon
the written request (a “Notice”) of the
Holders of at least 2,000,000 units of the then-outstanding Registrable
Securities, subject to adjustment pursuant to Section 3.04, the Partnership
shall file with the Commission, as soon as reasonably practicable following the
receipt of the Notice, a registration statement (each, a “Registration
Statement”) under the Securities Act providing for the resale of the
Registrable Securities (which may, at the option of the Holders giving such
Notice, be a registration statement under the Securities Act that provides for
the resale of the Registrable Securities pursuant to Rule 415 from time to time
by the Holders). The Partnership shall use its commercially
reasonable efforts to cause such Registration Statement to be declared effective
by the Commission as soon as reasonably practicable after the initial filing of
the Registration Statement. Any Registration Statement shall provide
for the resale pursuant to any method or combination of methods legally
available to, and requested by, the Holders of any and all Registrable
Securities covered by such Registration Statement. The Partnership
shall use its commercially reasonable efforts to cause each Registration
Statement filed pursuant to this Section 2.01 to be
continuously effective, supplemented and amended to the extent necessary to
ensure that it is available for the resale of all Registrable Securities by the
Holders until all Registrable Securities covered by such Registration Statement
have ceased to be Registrable Securities (the “Effectiveness
Period”). Each Registration Statement when effective (and the
documents incorporated therein by reference) shall comply in all material
respects as to form with all applicable requirements of the Securities Act and
shall not contain 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. There shall be no limit on the number of
Registration Statements that may be required by the Holders
hereunder.
Section
2.02 Underwritten
Offerings.
(a) Request for Underwritten
Offering. In the event that one or more Holders collectively
holding more than 2,000,000 units of the then-outstanding Registrable
Securities, subject to adjustment pursuant to Section 3.04, elects to
dispose of Registrable Securities under a Registration Statement pursuant to an
Underwritten Offering, the Partnership shall, upon request by such Holders,
retain underwriters in order to permit such Holders to effect such sale through
an Underwritten Offering. The obligation of the Partnership to retain
underwriters shall include entering into an underwriting agreement in customary
form with the Managing Underwriter or other underwriters, which shall include,
among other provisions, indemnities to the effect and to the extent provided in
Section 2.07 and
taking all reasonable actions as are requested by the Managing Underwriter or
other underwriters to expedite or facilitate the disposition of such Registrable
Securities. The Partnership shall, upon request of the Holders, cause
its management to participate in a roadshow or similar marketing effort on
behalf of the Holders.
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(b) Limitation on Underwritten
Offerings. In no event shall the Partnership be required
hereunder to participate in more than two Underwritten Offerings in any 12-month
period.
(c) General
Procedures. In connection with any Underwritten Offering under this
Agreement, Selling Holders holding a majority of the Registrable Securities in
such Underwritten Offering shall be entitled to select the Managing Underwriter
or other underwriters, subject to the approval of the Partnership, which
approval shall not be unreasonably withheld. In connection with an
Underwritten Offering contemplated by this Agreement, each Selling Holder and
the Partnership shall be obligated to enter into an underwriting agreement that
contains such representations, covenants, indemnities and other rights and
obligations as are customary in underwriting agreements for firm commitment
offerings of securities. No Selling Holder may participate in such
Underwritten Offering unless such Selling Holder agrees to sell its Registrable
Securities on the basis provided in such underwriting agreement and completes
and executes all questionnaires, powers of attorney, indemnities and other
documents reasonably required under the terms of such underwriting
agreement. Each Selling Holder may, at its option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Partnership to and for the benefit of such underwriters also be made to
and for such Selling Holder’s benefit and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement also be conditions precedent to such Selling Holder’s
obligations. No Selling Holder shall be required to make any
representations or warranties to or agreements with the Partnership or the
underwriters other than representations, warranties or agreements regarding such
Selling Holder and its ownership of the securities being registered on its
behalf, its intended method of distribution and any other representation
required by Law. If any Selling Holder disapproves of the terms of an
underwriting, such Selling Holder may elect to withdraw from the Underwritten
Offering by notice to the Partnership and the Managing Underwriter; provided, however, that such withdrawal
must be made at a time prior to the time of pricing of such Underwritten
Offering. No such withdrawal shall affect the Partnership’s obligation to
pay Registration Expenses.
Section
2.03 Delay
Rights. If the General Partner determines that the
Partnership’s compliance with its obligations under this Article II would be
materially detrimental to the Partnership and its Partners (as defined in the
Partnership Agreement) because such registration would (a) materially interfere
with a significant acquisition, reorganization or other similar transaction
involving the Partnership, (b) require premature disclosure of material
information that the Partnership has a bona fide business purpose for preserving
as confidential or (c) render the Partnership unable to comply with applicable
securities laws, then the Partnership shall have the right to postpone
compliance with its obligations under Section 2.01 and Section 2.02 for a period
of not more than six months, provided, that such right pursuant to this Section
2.03 may not be utilized more than once in any 12-month period.
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Section
2.04 Sale
Procedures. In connection with its obligations under this
Article II, the
Partnership will, as expeditiously as possible:
(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.
Section
2.05 Cooperation by
Holders. The Partnership shall have no obligation to include
in a Registration Statement, or in an Underwritten Offering pursuant to Section 2.02(a), Registrable
Securities of a Selling Holder who has failed to timely furnish such information
that, in the opinion of counsel to the Partnership, is reasonably required in
order for the registration statement or prospectus supplement, as applicable, to
comply with the Securities Act.
Section
2.06 Expenses.
(a) Expenses. The
Partnership (i) will pay all reasonable Registration Expenses including in
the case of an Underwritten Offering, regardless of whether any sale is made
pursuant to such Underwritten Offering and (ii) with respect to the first
27,869,466 units of Registrable Securities sold in one or more Underwritten
Offerings pursuant hereto, will reimburse each Selling Holder for the amount of
Selling Expenses incurred in connection with such Underwritten Offerings in an
amount not to exceed $0.914 per Registrable Security then being offered.
Each Selling Holder shall pay all other Selling Expenses in connection
with any sale of its Registrable Securities hereunder. In addition, except as
otherwise provided in Section 2.07, the Partnership
shall not be responsible for legal fees incurred by Holders in connection with
the exercise of such Holders’ rights hereunder. For the
avoidance of doubt, all reimbursed Selling Expenses shall be treated for U.S.
federal income tax purposes as payments to a Selling Holder other than in its
capacity as a Partner of the Partnership.
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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.
Section
2.07 Indemnification.
(a) By the
Partnership. In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Partnership
will indemnify and hold harmless each Selling Holder, its directors, officers,
employees and agents, and each underwriter, pursuant to the applicable
underwriting agreement with such underwriter, of Registrable Securities
thereunder and each Person, if any, who controls such Selling Holder within the
meaning of the Securities Act and the Exchange Act, and its directors, officers,
employees or agents, against any losses, claims, damages, expenses or
liabilities (including reasonable attorneys’ fees and expenses) (collectively,
“Losses”),
joint or several, to which such Selling Holder, director, officer, employee,
agent or underwriter or controlling Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Losses (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact (in the case of any prospectus, in light of the
circumstances under which such statement is made) contained in a Registration
Statement, any preliminary prospectus or prospectus supplement, free writing
prospectus or final prospectus or prospectus supplement contained therein, or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each such Selling Holder, its directors,
officers, employee and agents, each such underwriter and each such controlling
Person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Loss or actions or proceedings as such
expenses are incurred; provided, however, that the
Partnership will not be liable in any such case if and to the extent that any
such Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such Selling Holder, its directors, officers, employees and agents
or any underwriter or such controlling Person in writing specifically for use in
a Registration Statement, or prospectus or any amendment or supplement
thereto, as applicable. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Holder or
any such directors, officers, employees agents or any underwriter or controlling
Person, and shall survive the transfer of such securities by such Selling
Holder.
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(b) By Each Selling
Holder. Each Selling Holder agrees severally and not jointly
to indemnify and hold harmless the Partnership, the General Partner, its
directors, officers, employees and agents and each Person, if any, who controls
the Partnership within the meaning of the Securities Act or of the Exchange Act,
and its directors, officers, employees and agents, to the same extent as the
foregoing indemnity from the Partnership to the Selling Holders, but only with
respect to information regarding such Selling Holder furnished in writing by or
on behalf of such Selling Holder expressly for inclusion in a Registration
Statement or prospectus supplement relating to the Registrable Securities, or
any amendment or supplement thereto; provided, however, that the
liability of each Selling Holder shall not be greater in amount than the dollar
amount of the proceeds (net of any Selling Expenses) received by such Selling
Holder from the sale of the Registrable Securities giving rise to such
indemnification.
(c) Notice. Promptly
after receipt by an indemnified party hereunder of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying party shall not
relieve it from any liability that it may have to any indemnified party under
this Section
2.07 to
the extent such failure has not prejudiced the indemnifying party. In
any action brought against any indemnified party, it shall notify the
indemnifying party of the commencement thereof. The indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory to
such indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section
2.07 for
any legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, (i)
if the indemnifying party has failed to assume the defense or employ counsel
reasonably acceptable to the indemnified party or (ii) if the defendants in any
such action include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have concluded that there may be
reasonable defenses available to the indemnified party that are different from
or additional to those available to the indemnifying party, or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, then the indemnified party shall have the right to
select a separate counsel and to assume such legal defense and otherwise to
participate in the defense of such action, with the reasonable expenses and fees
of such separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as
incurred. Notwithstanding any other provision of this Agreement, no
indemnified party shall settle any action brought against it with respect to
which it is entitled to indemnification hereunder without the consent of the
indemnifying party, unless the settlement thereof imposes no liability or
obligation on, and includes a complete and unconditional release from all
liability of, the indemnifying party.
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(d) Contribution. If
the indemnification provided for in this Section 2.07 is held by a court
or government agency of competent jurisdiction to be unavailable to any
indemnified party or is insufficient to hold them harmless in respect of any
Losses, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Loss in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and of
such indemnified party on the other in connection with the statements or
omissions that resulted in such Losses, as well as any other relevant equitable
considerations; provided,
however, that in no event shall such Selling Holder be required to
contribute an aggregate amount in excess of the dollar amount of proceeds (net
of Selling Expenses) received by such Selling Holder from the sale of
Registrable Securities giving rise to such indemnification. The
relative fault of the indemnifying party on the one hand and the indemnified
party on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact has been made by, or
relates to, information supplied by such party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this paragraph were to be
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to
herein. The amount paid by an indemnified party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to
include any legal and other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any Loss that is the subject
of this paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who is not guilty of such fraudulent
misrepresentation.
(e) Other
Indemnification. The provisions of this Section 2.07 shall be in
addition to any other rights to indemnification or contribution that an
indemnified party may have pursuant to law, equity, contract or
otherwise.
Section
2.08 Rule
144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the
Registrable Securities to the public without registration, the Partnership
agrees to use its commercially reasonable efforts to:
(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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Section
2.09 Transfer or Assignment of
Registration Rights. The rights to cause the Partnership to
register Registrable Securities granted to the Purchaser by the Partnership
under this Article
II may be transferred or assigned by the Purchaser to one or more
transferee(s) or assignee(s) of such Registrable Securities (or Class B Units
prior to conversion); provided, however, that (a)
unless such transferee or assignee is an Affiliate of the Purchaser, each such
transferee or assignee holds Registrable Securities (or Class B Units prior to
conversion) representing at least 2,000,000 units of the then-outstanding
Registrable Securities or Class B Units, subject to adjustment pursuant to Section 3.04, (b) the
Partnership is given written notice prior to any said transfer or assignment,
stating the name and address of each such transferee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and (c) each such transferee assumes in writing responsibility for
its portion of the obligations of the Purchaser under this
Agreement.
Section
2.10 Restrictions on Public Sale
by Holders of Registrable Securities. Each Holder who, along
with its Affiliates, holds at least 2,000,000 units of the then-outstanding
Registrable Securities, subject to adjustment pursuant to Section 3.04, agrees
not to effect any public sale or distribution of the Registrable Securities
during the 30 calendar day period beginning on the date of a prospectus or
prospectus supplement filed with the Commission with respect to the pricing of
an Underwritten Offering, provided that (i) the duration of the foregoing
restrictions shall be no longer than the duration of the shortest restriction
generally imposed by the underwriters on the Partnership or the officers,
directors or any other unitholder of the Partnership on whom a restriction is
imposed and (ii) the restrictions set forth in this Section 2.10 shall
not apply to any Registrable Securities that are included in such Underwritten
Offering by such Holder.
ARTICLE
III
MISCELLANEOUS
Section
3.01 Communications. All
notices and other communications provided for or permitted hereunder shall be
made in writing by facsimile, electronic mail, courier service or personal
delivery:
(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.
Section
3.02 Successor and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including
subsequent Holders of Registrable Securities to the extent permitted
herein.
Section
3.03 Assignment of
Rights. All or any portion of the rights and obligations of
any Purchaser under this Agreement may be transferred or assigned by such
Purchaser in accordance with Section 2.09
hereof.
Section
3.04 Recapitalization, Exchanges,
Etc. Affecting the Registrable
Securities. The provisions of this Agreement shall apply to
the full extent set forth herein with respect to any and all units of the
Partnership or any successor or assign of the Partnership (whether by merger,
consolidation, sale of assets or otherwise) that may be issued in respect of, in
exchange for or in substitution of, the Registrable Securities, and shall be
appropriately adjusted for combinations, unit splits, recapitalizations, pro
rata distributions of units and the like occurring after the date of this
Agreement.
Section
3.05 Specific
Performance. Damages in the event of breach of this Agreement
by a party hereto may be difficult, if not impossible, to ascertain, and it is
therefore agreed that each such Person, in addition to and without limiting any
other remedy or right it may have, will have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
breach, and enforcing specifically the terms and provisions hereof, and each of
the parties hereto hereby waives any and all defenses it may have on the ground
of lack of jurisdiction or competence of the court to grant such an injunction
or other equitable relief. The existence of this right will not
preclude any such Person from pursuing any other rights and remedies at law or
in equity that such Person may have.
Section
3.06 Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
12
Section
3.07 Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
Section
3.08 Governing Law. THIS AGREEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
Section
3.09 Severability of
Provisions. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting or impairing the
validity or enforceability of such provision in any other
jurisdiction.
Section
3.10 Scope
of
Agreement. The rights granted pursuant to this Agreement are
intended to supplement and not to reduce or replace any rights any Holders may
have under the Partnership Agreement with respect to the Registrable
Securities. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. Except as provided in the Partnership
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein with respect to the rights
granted by the Partnership set forth herein. Except as provided in
the Partnership Agreement, this Agreement and the June 2009 Purchase Agreement
supersede all prior agreements and understandings between the parties with
respect to such subject matter.
Section
3.11 Amendment. This
Agreement may be amended only by means of a written amendment signed by the
Partnership and the Holders of a majority of the then outstanding Registrable
Securities; provided,
however, that no such amendment shall materially and adversely affect the
rights of any Holder hereunder without the consent of such Holder.
Section
3.12 No
Presumption. If any claim is made by a party relating to any
conflict, omission, or ambiguity in this Agreement, no presumption or burden of
proof or persuasion shall be implied by virtue of the fact that this Agreement
was prepared by or at the request of a particular party or its
counsel.
Section
3.13 Aggregation of Registrable
Securities. All Registrable Securities held or acquired by
Persons who are Affiliates of one another shall be aggregated together for the
purpose of determining the availability of any rights under this
Agreement.
Section 3.14 Obligations Limited to
Parties to Agreement. Each of the Parties hereto covenants,
agrees and acknowledges that no Person other than the Partnership and the
Holders shall have any obligation hereunder and that, notwithstanding that one
or more of the Holders may be a corporation, partnership or limited liability
company, no recourse under this Agreement or under any documents or instruments
delivered in connection herewith or therewith shall be had against any former,
current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder or Affiliate of any of the Holders or any
former, current or future director, officer, employee, agent, general or limited
partner, manager, member, stockholder or Affiliate of any of the foregoing,
whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any applicable Law, it being expressly agreed and
acknowledged that no personal liability whatsoever shall attach to, be imposed
on or otherwise by incurred by any former, current or future director, officer,
employee, agent, general or limited partner, manager, member, stockholder or
Affiliate of any of the Holders or any former, current or future director,
officer, employee, agent, general or limited partner, manager, member,
stockholder or Affiliate of any of the foregoing, as such, for any obligations
of the Holders under this Agreement or any documents or instruments delivered in
connection herewith or therewith or for any claim based on, in respect of or by
reason of such obligation or its creation, except in each case for any assignee
of a Holder hereunder.
13
Section 3.15 Interpretation. Article
and Section references are to Articles and Sections of this Agreement, unless
otherwise specified. All references to instruments, documents,
contracts and agreements are references to such instruments, documents,
contracts and agreements as the same may be amended, supplemented and otherwise
modified from time to time, unless otherwise specified. The word “including”
shall mean “including but not limited to.” Whenever any determination, consent
or approval is to be made or given by a Holder under this Agreement, such action
shall be in such Holder’s sole discretion unless otherwise
specified.
14
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of the
date first above written.
|
|
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
