REGISTRATION RIGHTS AND TRANSFER RESTRICTION AGREEMENT
Exhibit 4.1
This Registration Rights and Transfer Restriction Agreement (the “Agreement”) is made
and entered into as of this
19th day of October, 2009 by and among Xxxxx Energy Partners,
L.P., a Delaware limited partnership (the “Company”), and Xxxxxxxx Tulsa Refining Company,
a Wyoming corporation (the “Holder”).
WHEREAS, Holder and affiliates of the Company have entered into an Asset Sale and Purchase
Agreement dated as of October 19, 2009 (the “Purchase Agreement”) pursuant to which
such affiliates will purchase certain pipelines, storage tanks, loading racks and related assets
from Holder in exchange for, among other things, Common Units (such Common Units issued to Holder
pursuant to the Purchase Agreement being the “Issued Units”);
WHEREAS, Holder’s willingness to enter into the Purchase Agreement is conditioned upon the
execution and delivery of this Agreement and such execution and delivery is expressly contemplated
thereby.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party hereto, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“Allowed Delay” has the meaning given to such term in Section 2(c)(ii).
“Base Amount” means 8,900, as appropriately adjusted for any stock dividends, splits,
combinations or reclassifications of the Common Units occurring after the date hereof.
“Blackout Amount” means an amount equal to the aggregate Base Amount for all Trading
Days during an Allowed Delay; provided, however, that such Blackout Amount shall be reduced (i) in
accordance with the definition of Daily Trading Limit and (ii) by the amount of any block-trade of
Common Units pursuant to Section 5(b)(ii).
“Block-Trade Amount” means, with respect to an Allowed Delay, an amount equal to the
lesser of (i) the aggregate Base Amount for all Trading Days during such Allowed Delay, or (ii)
25,000.
“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the applicable laws of, or are in fact closed in,
the State of Texas.
“Closing Date” has the meaning given to such term in the Purchase Agreement.
“Common Units” means the Company’s common units, and any securities into which such
common units may hereinafter be reclassified.
“Daily Trading Limit” means, with respect to any Trading Day, the sum of (i) the Base
Amount, and (ii) the Deferred Amount; provided, however, that in no event shall the Daily Trading
Limit on any Trading Day exceed twice the Base Amount. For the purposes of calculating the Daily
Trading Limit, any amounts sold on a Trading Day shall be credited first to the Base Amount
for such Trading Day, second to the Ordinary Trading Deficit; and third to any
remaining Blackout Amount.
“Deferred Amount” means, with respect to any Trading Day, a number equal to (A)(i) the
aggregate Base Amount for the ten (10) Trading Days immediately preceding such Trading Day (but,
for the purposes of this part (A)(i), any Trading Days occurring during an Allowed Delay shall not
be included), less (ii) the aggregate number of Common Units actually Transferred by the
Holder during such ten (10) Trading Day period ((i) minus (ii) being the “Ordinary Trading
Deficit”)),
plus
(B) the remaining Blackout Amount.
“Effectiveness Period” has the meaning given to such term in Section 3(a).
“Issued Units” has the meaning given to such term in the recitals.
“Ordinary Trading Deficit” has the meaning given such term in the definition of the
“Deferred Amount” in this Section 1.
“Principal Market” means, with respect to the Common Units, the New York Stock
Exchange, or if the Common Units are not traded on the New York Stock Exchange, then the principal
securities exchange or trading market (including the over-the-counter market or any
“bulletin-board” based market) for the Common Units.
“Prospectus” means (i) the prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus, and (ii) any “free writing prospectus” as defined in
Rule 405 under the 1933 Act.
“Register,” “registered” and “registration” refer to a registration
made by preparing and filing a Registration Statement or similar document in compliance with the
1933 Act (as defined below), and the declaration or ordering of effectiveness of such Registration
Statement or document.
“Registrable Securities” means (i) the Common Units acquired by Holder pursuant to the
Purchase Agreement and (ii) any other securities issued or issuable with respect to or in exchange
for Registrable Securities; provided, however, that, a security shall cease to be a Registrable
Security upon (A) sale pursuant to a Registration Statement or Rule 144 under the 1933 Act, or (B)
such security becoming eligible for sale without restriction (including any
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restriction relating to the availability of current public information about the Company) by
the Holder pursuant to Rule 144.
“Registration Statement” means any registration statement of the Company filed under
the 1933 Act that covers the resale of any of the Registrable Securities pursuant to the provisions
of this Agreement, amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
“Restricted Period” has the meaning set forth in Section 5(a).
“SEC” means the U.S. Securities and Exchange Commission.
“Trading Day” means each Monday, Tuesday, Wednesday, Thursday and Friday during the
Restricted Period other than a day on which securities are not traded on the Principal Market.
“Transfer” means, with respect to the Common Units or any other security and subject
to Section 7 of this Agreement, any offer, pledge, sale, entry into a contract to sell,
sale of any option or contract to purchase, purchase of any option or contract to sell, grant of
any option, right or warrant to purchase, loan of, or other transfer or disposal of, directly or
indirectly, such Common Units or other security or any portion of the economic consequences of the
ownership of such Common Units or other security, whether any such transaction is to be settled by
delivery of Common Units, cash or such other securities.
“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
2. Registration.
(a) Registration Statements. As soon as reasonably practicable following both (i) the
execution and delivery of this Agreement and the Purchase Agreement,
and (ii) satisfaction of the condition set forth in Section 7.2.7
of the Purchase Agreement, the Company shall prepare and file with the SEC one Registration Statement on Form S-3 (or,
if the Company is not then eligible to use Form S-3 to register the resale of the Registrable
Securities, on such form of registration statement as is then available to effect a registration
for resale of the Registrable Securities), covering the resale of the Registrable Securities.
Subject to any SEC comments, such Registration Statement shall include the plan of distribution
attached hereto as Exhibit A; provided, however, that the Holder shall not be named as an
“underwriter” in the Registration Statement without the Holder’s prior written consent. Such
Registration Statement also shall cover, to the extent allowable under the 1933 Act and the rules
promulgated thereunder (including Rule 416), such indeterminate number of additional Common Units
resulting from stock splits, stock dividends or similar transactions with respect to the
Registrable Securities. The Registration Statement (and each amendment or
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supplement thereto, and each request for acceleration of effectiveness thereof) shall be
provided in accordance with Section 3(c) to the Holder and its counsel prior to its filing or other
submission.
(b) Expenses. The Company will pay all expenses associated with each registration,
including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable state securities
laws, listing fees, but excluding discounts, commissions, fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals with respect to the Registrable
Securities being sold.
(c) Effectiveness.
(i) The Company shall use its commercially reasonable best efforts to have the
Registration Statement declared effective as soon as reasonably practicable. The Company
shall notify the Holder by facsimile or e-mail as promptly as practicable, and in any event,
within twenty-four (24) hours, after any Registration Statement is declared effective and
shall simultaneously provide the Holder with copies of any related Prospectus to be used in
connection with the sale or other disposition of the securities covered thereby.
(ii) The Company may suspend the use of any Prospectus included in any Registration
Statement contemplated by this Section in the event that the Company determines in good
faith that such suspension is necessary (A) in connection with regular earnings
announcements (including any standing policies with respect to such earnings announcements),
(B) to delay the disclosure of material non-public information concerning the Company, the
disclosure of which at the time would be, in the good faith opinion of the Company,
materially detrimental to the Company or (C) to amend or supplement the affected
Registration Statement or the related Prospectus so that such Registration Statement or
Prospectus shall 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, in
the case of the Prospectus in light of the circumstances under which they were made, not
misleading (an “Allowed Delay”); provided, however, that the Company shall promptly
(a) notify the Holder in writing of the commencement of and the reasons for an Allowed
Delay, but shall not (without the prior written consent of the Holder) disclose to the
Holder any material non-public information giving rise to an Allowed Delay, and (b) advise
the Holder in writing to cease all sales under the Registration Statement until the end of
the Allowed Delay.
(d) Rule 415; Cutback If at any time the SEC takes the position that the offering of
some or all of the Registrable Securities in a Registration Statement is not eligible to be made on
a delayed or continuous basis under the provisions of Rule 415 under the 1933 Act or requires the
Holder to be named as an “underwriter,” the Company shall use its commercially reasonable best
efforts to persuade the SEC that the offering contemplated by the Registration Statement is a valid
secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 and
that the Holder is not an “underwriter.” The Holder shall have the right to participate or have
its counsel participate in any meetings or discussions with the SEC
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regarding the SEC’s position and to comment or have their counsel comment on any written
submission made to the SEC with respect thereto. No such written submission shall be made to the
SEC to which the Holder’s counsel reasonably objects. In the event that, despite the Company’s
commercially reasonable best efforts and compliance with the terms of this Section 2(d), the SEC
refuses to alter its position, the Company shall (i) remove from the Registration Statement such
portion of the Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such
restrictions and limitations on the registration and resale of the Registrable Securities as the
SEC may require to assure the Company’s compliance with the requirements of Rule 415 (collectively,
the “SEC Restrictions”); provided, however, that the Company shall not agree to name the
Holder as an “underwriter” in such Registration Statement without the prior written consent of the
Holder, and provided, further, that if the Company is required to take any of the actions set forth
in clause (i) or (ii) above, it shall consult with the Holder and shall take such actions as are
reasonably requested by the Holder so long as such requested actions are (A) in compliance with the
requirements of the SEC, (B) do not require the Company or its affiliates to pay money or undertake
or incur additional liability, and (C) are reasonably likely to avoid the treatment of the Holder
as an underwriter.
3. Company Obligations. The Company will use commercially reasonable best efforts to
effect the registration of the Registrable Securities in accordance with the terms hereof, and
pursuant thereto the Company will, as expeditiously as possible:
(a) use commercially reasonable best efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period that will terminate upon the earlier of
(i) the date on which all Registrable Securities covered by such Registration Statement as amended
from time to time, have been sold, and (ii) the date on which all Registrable Securities covered by
such Registration Statement may be sold without restriction pursuant to Rule 144 (the
“Effectiveness Period”) and advise the Holder in writing when the Effectiveness Period has
expired;
(b) subject to Section 2(c)(ii), prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the Prospectus as may be necessary to
keep the Registration Statement effective for the Effectiveness Period and to comply with the
provisions of the 1933 Act and the 1934 Act with respect to the distribution of all of the
Registrable Securities covered thereby;
(c) provide copies to and permit counsel designated by the Holder to review each Registration
Statement and all amendments and supplements thereto no fewer than two (2) Business Days prior to
their filing with the SEC;
(d) furnish to the Holder and its legal counsel (i) promptly after the same is prepared and
publicly distributed, filed with the SEC, or received by the Company (but not later than two (2)
Business Days after the filing date, receipt date or sending date, as the case may be) one (1) copy
of any Registration Statement and any amendment thereto, each preliminary prospectus and Prospectus
and each amendment or supplement thereto, and each letter written by or on behalf of the Company to
the SEC or the staff of the SEC, and each item of correspondence from the SEC or the staff of the
SEC, in each case relating to such Registration Statement (other than any portion of any thereof
which contains information for which the Company has sought
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confidential treatment), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such other documents as the
Holder may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by the Holder that are covered by the related Registration Statement;
(e) use commercially reasonable best efforts to (i) prevent the issuance of any stop order or
other suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any
such order at the earliest possible moment;
(f) prior to any public offering of Registrable Securities, use commercially reasonable best
efforts to register or qualify or cooperate with the Holder and its counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions requested by the Holder and do any and all other
commercially reasonable acts or things necessary or advisable to enable the distribution in such
jurisdictions of the Registrable Securities covered by the Registration Statement; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(f), (ii) subject itself to general taxation in any
jurisdiction where it would not otherwise be so subject but for this Section 3(f), or (iii)
file a general consent to service of process in any such jurisdiction;
(g) use commercially reasonable best efforts to cause all Registrable Securities covered by a
Registration Statement to be listed on each securities exchange, interdealer quotation system or
other market on which similar securities issued by the Company are then listed;
(h) promptly notify the Holder, at any time prior to the end of the Effectiveness Period, upon
discovery that, or upon the happening of any event as a result of which, the Prospectus 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 light of the circumstances
then existing, and promptly prepare, file with the SEC and furnish to such Holder a supplement to
or an amendment of such Prospectus as may be necessary so that such Prospectus shall 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 light of the circumstances then
existing; and
(i) otherwise use commercially reasonable best efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, including Rule 172 under the 1933 Act,
file any final Prospectus, including any supplement or amendment thereof, with the SEC pursuant to
Rule 424 under the 1933 Act, promptly inform the Holder in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a
result thereof, the Holder is required to deliver a Prospectus in connection with any disposition
of Registrable Securities and take such other actions as may be reasonably necessary to facilitate
the registration of the Registrable Securities hereunder.
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(j) With a view to making available to the Holder the benefits of Rule 144 (or its successor
rule) and any other rule or regulation of the SEC that may at any time permit the Holder to sell
Common Units to the public without registration, the Company covenants and agrees to: (i) make and
keep public information available, as those terms are understood and defined in Rule 144, until the
earlier of (A) six months after such date as all of the Registrable Securities may be sold without
restriction (including any restriction relating to the availability of current public information
about the Company) by the holders thereof pursuant to Rule 144 or any other rule of similar effect
or (B) such date as all of the Registrable Securities shall have been resold; (ii) file with the
SEC in a timely manner all reports and other documents required of the Company under the 1934 Act;
and (iii) furnish to the Holder upon request, as long as the Holder owns any Registrable
Securities, (A) a written statement by the Company that it has complied with the reporting
requirements of the 1934 Act, (B) a copy of the Company’s most recent Annual Report on Form 10-K or
Quarterly Report on Form 10-Q (unless such reports are otherwise publicly available), and (C) such
other information as may be reasonably requested to permit the Holder to sell such securities
pursuant to Rule 144 without registration.
4. Obligations of the Holder.
(a) The Holder shall furnish in writing to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably required to effect the registration of such
Registrable Securities and shall execute such documents in connection with such registration as the
Company may reasonably request. At least five (5) Business Days prior to the first anticipated
filing date of any Registration Statement, the Company shall notify the Holder of the information
the Company requires from the Holder in connection with the filing of the Registration Statement.
The Company shall not be obligated to register the Registrable Securities of the Holder unless and
until the Holder provides such information.
(b) The Holder, by its acceptance of the Registrable Securities, agrees to cooperate with the
Company as reasonably requested by the Company in connection with the preparation and filing of a
Registration Statement hereunder, unless the Holder has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration Statement.
(c) The Holder agrees that, upon receipt of any notice from the Company of either (i) the
commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the happening of an event
pursuant to Section 3(h) hereof, the Holder will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable Securities, until the
Holder is advised by the Company that such dispositions may again be made.
(d) Holder covenants and agrees that it will comply with any applicable prospectus delivery
requirements of the 1933 Act as applicable to it or an exemption therefrom in connection with sales
of Registrable Securities pursuant to a Registration Statement.
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(e) Holder covenants and agrees that it will notify the Company in writing promptly following
a Transfer of Registrable Securities that results in the Holder no longer holding any Registrable
Securities.
5. Restrictions on Volume of Sales Following Registration.
(a) Until the earlier of (i) the twenty-four (24) month anniversary of the Closing Date, or
(ii) the first date upon which the Holder holds fewer than 76,000 Common Units (the “Restricted
Period”), the Holder agrees that it will not, without the prior written consent of the Company
(which consent may be withheld in the Company’s sole and absolute discretion), directly or
indirectly, Transfer any of the Issued Units other than as provided in this Section 5.
(b) Notwithstanding Section (a):
(i) the Holder may Transfer in any Trading Day a number of Common Units equal
to the Daily Trading Limit; and
(ii) with respect to each Allowed Delay, the Holder may make a single
block-trade of Common Units in an amount no greater than the Block-Trade Amount with
respect to such Allowed Delay; provided, however, that the right of the Holder to
make that single block-trade shall terminate immediately upon the commencement of
the next succeeding Allowed Delay.
(c) The Holder may Transfer Common Units on a day that is not a Trading Day, but for the
purposes of determining the Holder’s compliance with this Section 5, such Common Units
shall be deemed to have been Transferred on the next succeeding Trading Day.
(d) The Holder agrees to provide reasonable assistance as requested by the Company to allow it
to monitor the Holder’s compliance with the restrictions of this Section 5, including
providing the Company with documentary evidence (such as brokers’ statements) of trading activities
in the Common Units. In addition, the Holder agrees to hold all Issued Units in book-entry form
with the Company’s transfer agent (or by such other reasonable method as required by the Holder’s
lenders in connection with being granted the consent contemplated by Section 7.2.7 of the Purchase
Agreement) until such time as they are Transferred in compliance with the restrictions of this
Section 5.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and hold harmless the
Holder and its officers, directors, members, employees and agents, successors and assigns, and each
other person, if any, who controls the Holder within the meaning of the 1933 Act, against any
losses, claims, damages, liabilities or expenses (including reasonable attorney’s fees), joint or
several, to which they may become subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities or expenses (or actions in respect thereof) arise out of or are
based upon: (i) any untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, any preliminary Prospectus or final Prospectus, or any amendment or
supplement thereof, or the omission or alleged omission to
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state a material fact required to be stated or necessary to make the statements therein
misleading; (ii) any blue sky application or other document executed by the Company specifically
for that purpose or based upon written information furnished by the Company filed in any state or
other jurisdiction in order to qualify any or all of the Registrable Securities under the
securities laws thereof (any such application, document or information herein called a “Blue
Sky Application”); (iii) the omission or alleged omission to state in a Blue Sky Application a
material fact required to be stated therein or necessary to make the statements therein not
misleading; (iv) any violation by the Company or its agents of any rule or regulation promulgated
under the 1933 Act applicable to the Company or its agents and relating to action or inaction
required of the Company in connection with such registration; or (v) any failure to register or
qualify the Registrable Securities included in any such Registration Statement in any state where
the Company or its agents has affirmatively undertaken or agreed in writing that the Company will
undertake such registration or qualification on the Holder’s behalf and will reimburse the Holder,
and each such officer, director, member, employee and agent, successors and assigns, and each such
controlling person for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that any such loss,
claim, damage, liability or expense 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 Holder or any such controlling person in writing specifically for use in such Registration
Statement or Prospectus.
(b) Indemnification by the Holder. The Holder agrees, severally but not jointly, to
indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors,
officers, employees, stockholders and each person who controls the Company (within the meaning of
the 0000 Xxx) against any losses, claims, damages, liabilities and expense (including reasonable
attorneys’ fees) resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement or Prospectus or preliminary
Prospectus or amendment or supplement thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing by the Holder to the Company specifically for
inclusion in such Registration Statement or Prospectus or amendment or supplement thereto. In no
event shall the liability of Holder be greater in amount than the dollar amount of the proceeds
(net of all expense paid by the Holder in connection with any claim relating to this Section 6, the
amount of any damages the Holder has otherwise been required to pay by reason of such untrue
statement or omission and any underwriting discounts and commissions) received by the Holder upon
the sale of the Registrable Securities included in the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to indemnification
hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any
person entitled to indemnification hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such fees or expenses,
or (b) the indemnifying party shall have failed to
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assume the defense of such claim and employ counsel reasonably satisfactory to such person or
(c) in the reasonable judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with respect to such
claims (in which case, if the person notifies the indemnifying party in writing that such person
elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations hereunder, except to the extent that
such failure to give notice shall materially adversely affect the indemnifying party in the defense
of any such claim or litigation. It is understood that the indemnifying party shall not, in
connection with any single proceeding in the same jurisdiction, be liable for fees or expenses of
more than one separate firm of attorneys at any time for all indemnified parties. No indemnifying
party will, except with the consent of the indemnified party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability in respect of such
claim or litigation.
(d) Contribution. If for any reason the indemnification provided for in the preceding
paragraphs (a) or (b), as applicable, is unavailable to an indemnified party or insufficient to
hold it harmless, other than as expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of such loss, claim,
damage, liability or expense in such proportion as is appropriate to reflect the relative fault of
the indemnified party and the indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the 1933 Act shall be entitled to contribution from any person not guilty of such
fraudulent misrepresentation. In no event shall the contribution obligation of a Holder of
Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all
expenses paid by such Holder in connection with any claim relating to this Section 6, the
amount of any damages such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and any underwriter discounts and
commissions) received by it upon the sale of the Registrable Securities giving rise to such
contribution obligation.
7. Pledge of Issued Units. For the purposes of this Agreement, a pledge of the Issued
Units to an institutional lender shall not be a “Transfer” of such Issued Units as such term is
defined herein, so long as, in connection and contemporaneously with such pledge such lender agrees
in writing to be bound by all of the obligations and duties of the Holder set forth in this
Agreement upon foreclosure or repossession of such Issued Units by such lender, including the
restrictions set for in Section 5.
8. Miscellaneous.
(a) Termination. This Agreement will automatically terminate with no further
obligation of any party hereto upon termination of the Purchase Agreement.
(b) Amendments and Waivers. This Agreement may be amended only by a writing signed by
the Company and the Holder. The Company may take any action herein
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prohibited, or omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or omission to act, of
the Holder.
(c) Notices. All notices and other communications provided for or permitted hereunder
shall be made as set forth in Section 11.5 of the Purchase Agreement.
(d) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties named herein and their respective successors and permitted assigns. No
party hereto may assign either this Agreement or any of its rights, interests or obligations
hereunder without the prior written approval of the other party; provided, however, that (i) the
Holder may assign either this Agreement or all of its rights, interests or obligations hereunder
(in whole, but not in part), without the prior written approval of the Company, to (A) one of its
affiliates, but only to an affiliate to whom all of the Issued Units then held by the Holder are
also contemporaneously transferred, or (B) to an institutional lender in connection with a pledge
of the Issued Units, which pledge is made in conformity with the requirements of Section 7
so that such pledge does not constitute a “Transfer” hereunder, and (ii) the Company may assign its
rights and delegate its duties hereunder to any surviving or successor entity in connection with a
merger or consolidation or the Company with another entity, or a sale, transfer or other
disposition of all or substantially all of the Company’s assets to another entity, without the
prior written consent of the Holder. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective permitted successors and
assigns any rights, remedies or obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
(e) Counterparts; Faxes. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. This Agreement may also be executed via facsimile, which shall be deemed an
original.
(f) Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.
(g) Severability. 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 but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any respect.
(h) Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.
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(i) Entire Agreement. 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. This
Agreement supersedes all prior agreements and understandings between the parties with respect to
such subject matter.
(j) Construction.
(i) the word “or” will not be exclusive;
(ii) inclusion of items in a list will not be deemed to exclude other terms of
similar import;
(iii) all parties will be considered to have drafted this Agreement together,
with the benefit of counsel, and no provision will be strictly construed against any
Person by reason of having drafted such provision;
(iv) the word “include” and its correlatives means to include without
limitation;
(v) terms that imply gender will include all genders;
(vi) defined terms will have their meanings in the plural and singular case;
(vii) references to Sections, Articles, Annexes and Exhibits are to the
Sections, Articles, Annexes and Exhibits to this Agreement;
(viii) financial terms that are not otherwise defined have the meanings
ascribed to them under United States generally accepted accounting principles as of
the date of this Agreement;
(ix) the use of “will” as an auxiliary will not be deemed to be a mere
prediction of future occurrences; and
(x) the headings in this Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning of this Agreement.
(k) Governing Law; Consent to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Utah without giving effect to any
choice or conflict of law provision or rule (whether of the State of Utah or any other
jurisdiction) that would cause the application of the laws of any jurisdiction other than the State
of Utah. The parties to this Agreement hereby consent to the jurisdiction of any state or federal
court located within Salt Lake County, Utah and Dallas County, Texas and irrevocably agree that (1)
all actions or proceedings arising out of or related to this Agreement initiated by the Company (or
any affiliate thereof) shall be brought in Salt Lake County, Utah, and (2) all actions or
proceedings arising out of or related to this Agreement initiated by the Holder (or any affiliate
thereof) shall be brought in Dallas County, Texas. Each party to this Agreement waives any defense
of forum non conveniens and agrees to be bound by any judgment rendered thereby
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in connection with this Agreement. For the avoidance of doubt, the parties to this Agreement
agree that, once an action or proceeding is brought in the above-required forum, the other party to
the action or proceeding may bring any counterclaims in the same forum. Each party to this
Agreement agrees that service upon it by registered mail shall constitute sufficient notice;
provided that nothing herein shall affect the right to serve process in any other manner permitted
by law.
(l) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING ARISING HEREUNDER.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized
officers to execute this Agreement as of the date first above written.
| XXXXX ENERGY PARTNERS, L.P. | ||||||
| By: HEP Logistics Holdings, L.P. its sole | ||||||
| general partner | ||||||
| By: Xxxxx Logistic Services, L.L.C., its sole | ||||||
| general partner | ||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | Xxxxx X. Xxxxx | |||||
| Title: | Senior Vice President | |||||
| SINCLAIR TULSA REFINING COMPANY | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||||
| Name: | Xxxx X. Xxxxxxxx | |||||
| Title: | E.V.P. | |||||
Signature Page to HEP/Sinclair Registration Rights and Transfer Restriction Agreement
EXHIBIT A
PLAN OF DISTRIBUTION
The common units offered by this prospectus may be sold from time to time to purchasers:
| • | directly by the selling unitholder and its successors, which includes its donees, pledgees or transferees or its successors-in-interest, or | ||
| • | through underwriters, broker-dealers or agents, who may receive compensation in the form of discounts, commissions or agent’s commissions from the selling unitholder or the purchasers of the common units. These discounts, concessions or commissions may be in excess of those customary in the types of transactions involved. |
The selling unitholder reserves the right to accept and, together with its agents, to reject,
any proposed purchases of common units to be made directly or through agents.
The selling unitholder and any underwriters, broker-dealers or agents who participate in the
sale or distribution of the common units may be deemed to be “underwriters” within the meaning of
the Securities Act. If the selling unitholder is a registered broker-dealer, it will be deemed to
be an underwriter. If the selling unitholder is deemed to be an underwriter, any profits on the
sale of the common units by the selling unitholder and any discounts, commissions or agent’s
commissions or concessions received by it may be deemed to be underwriting discounts and
commissions under the Securities Act. If the selling unitholder is deemed to be an “underwriter”
within the meaning of Section 2(a)(11) of the Securities Act, it will be subject to the prospectus
delivery requirements of the Securities Act. Underwriters are subject to certain statutory
liabilities, including, but not limited to, Sections 11, 12 and 17 of the Securities Act.
The common units may be sold in one or more transactions at:
| • | fixed prices; | ||
| • | prevailing market prices at the time of sale; | ||
| • | prices related to such prevailing market prices; | ||
| • | varying prices determined at the time of sale; or | ||
| • | negotiated prices. |
These sales may be effected in one or more transactions:
| • | on any national securities exchange or quotation on which the common units may be listed or quoted at the time of the sale; | ||
| • | in the over-the-counter market; | ||
| • | in transactions other than on such exchanges or services or in the over-the-counter market; | ||
| • | through the writing of options (including the issuance by the selling unitholder of derivative securities), whether the options or such other derivative securities are listed on an options exchange or otherwise; |
Exhibit A
HEP Registration Rights and Transfer Restriction Agreement
HEP Registration Rights and Transfer Restriction Agreement
| • | through the settlement of short sales; or |
| • | through any combination of the foregoing. |
These transactions may include block transactions or crosses. Crosses are transactions in
which the same broker acts as an agent on both sides of the trade.
In connection with sales of the common units, the selling unitholder may enter into hedging
transactions with broker-dealers or other financial institutions which in turn may:
| • | engage in short sales of the common units in the course of hedging their positions; | ||
| • | sell the common units short and deliver the common units to close out short positions; | ||
| • | loan or pledge the common units to broker-dealers or other financial institutions that in turn may sell the common units; | ||
| • | enter into option or other transactions with broker-dealers or other financial institutions that require the delivery to the broker-dealer or other financial institution of the common units, which the broker-dealer or other financial institution may resell under the prospectus; or | ||
| • | enter into transactions in which a broker-dealer makes purchases as a principal for resale for its own account or through other types of transactions. |
To our knowledge, there are currently no plans, arrangements or understandings between the
selling unitholder and any underwriter, broker-dealer or agent regarding the sale of the common
units by the selling unitholder.
Our common units are listed on the New York Stock Exchange under the symbol “HEP.”
There can be no assurance that the selling unitholder will sell any or all of the common units
under this prospectus. Further, we cannot assure you that the selling unitholder will not transfer,
devise or gift the common units by other means not described in this prospectus. In addition, any
common units covered by this prospectus that qualify for sale under Rule 144 or Rule 144A of the
Securities Act may be sold under Rule 144 or Rule 144A rather than under this prospectus. The
common units covered by this prospectus may also be sold to non-U.S. persons outside the U.S. in
accordance with Regulation S under the Securities Act rather than under this prospectus. The common
units may be sold in some states only through registered or licensed brokers or dealers. In
addition, in some states the common units may not be sold unless it has been registered or
qualified for sale or an exemption from registration or qualification is available and complied
with.
The selling unitholder and any other person participating in the sale of the common units will be
subject to the Exchange Act. The Exchange Act rules include, without limitation, Regulation M,
which may limit the timing of purchases and sales of any of the common units by the selling
unitholder and any other such person. In addition, Regulation M may restrict the ability of any
person engaged in the distribution of the common units to engage in market-making activities with
respect to the particular common units being distributed. This may affect the marketability of the
common units and the ability of any person or entity to engage in market-making activities with
respect to the common units.
We entered into a Registration Rights and Transfer Restriction Agreement with the selling
unitholder, pursuant to which:
Exhibit A
HEP Registration Rights and Transfer Restriction Agreement
HEP Registration Rights and Transfer Restriction Agreement
| • | we agreed to, among other things, bear all expenses, other than brokers’ or underwriters’ discounts and commissions, in connection with the registration and sale of the common units covered by this prospectus, including the payment of federal securities law and state blue sky registration fees, except that we will not bear any underwriting discounts or commissions or transfer taxes relating to the sale of common units; and |
| • | the selling unitholder agreed that it would not transfer more than 8,900 common units in any trading day, which we refer to as the base amount, provided, however, that: |
| • | it may exceed the base amount in any trading day to make up for common units that it failed to sell up to the base amount in the 10 preceding trading days or that it failed to sell as a result of a black-out period imposed by us under the terms of the Registration Rights and Transfer Restriction Agreement (though it may not sell more than twice the base amount in any trading day to make up for these shortfalls); and |
| • | with respect to each black-out period imposed by us under the terms of the Registration Rights and Transfer Restriction Agreement, the selling unitholder may execute a single block-trade of a number of common units equal to the lesser of (i) the aggregate base amount for all trading days during such blackout period, or (ii) 25,000. |
Exhibit A
HEP Registration Rights and Transfer Restriction Agreement
HEP Registration Rights and Transfer Restriction Agreement
