REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN COPANO ENERGY, L.L.C. AND CANTERA RESOURCES HOLDINGS LLC
Exhibit 4.1
BY AND BETWEEN
AND
CANTERA RESOURCES HOLDINGS LLC
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THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
October 19, 2007, by and among Copano Energy, L.L.C., a Delaware limited liability company
(“Copano”), and Cantera Resources Holdings, LLC, a Delaware limited liability company
(“CRH”).
WHEREAS, this Agreement is made in connection with the issuance of the Class D Units pursuant
to the Purchase Agreement, dated as of August 31, 2007, by and among Copano, Copano Energy/Rocky
Mountains, L.L.C. and CRH (the “Purchase Agreement”);
WHEREAS, Copano has agreed to provide the registration and other rights set forth in this
Agreement for the benefit of CRH pursuant to the Purchase Agreement; and
WHEREAS, it is a condition to the obligations of CRH and Copano under the 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 parties hereby agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein without definition shall have
the meanings ascribed to them in the Purchase Agreement. The terms set forth below are used herein
as so defined:
“Commission” means the Securities and Exchange Commission.
“Conversion” means the conversion of the Class D Units into Common Units in accordance
with the terms of the Parent LLC Agreement.
“CRH” has the meaning specified in the introductory paragraph of this Agreement.
“Effectiveness Period” has the meaning specified in Section 2.01(a) of this
Agreement.
“Holder” means the record holder of any Registrable Securities who is subject to the
terms of this Agreement either as the initial party hereto or as a permitted transferee of CRH
pursuant to Section 2.10 hereof.
“Included Registrable Securities” has the meaning specified in Section 2.02(a)
of this Agreement.
“Losses” has the meaning specified in Section 2.08(a) of this Agreement.
“Managing Underwriter” means, with respect to any Underwritten Offering, the
book-running lead manager of such Underwritten Offering.
“Opt-Out Notice” has the meaning specified in Section 2.02(a) of this
Agreement.
“Purchase Agreement” has the meaning specified in the Recitals of this Agreement.
“Registrable Securities” means the Common Units underlying the Class D Units.
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“Registration Expenses” has the meaning specified in Section 2.07(a) of this
Agreement.
“Selling Expenses” has the meaning specified in Section 2.07(a) of this
Agreement.
“Selling Holder” means a Holder who is offering Registrable Securities for sale
pursuant to a registration statement.
“Shelf Registration Statement” means a registration statement under the Securities Act
to permit the resale of the Registrable Securities from time to time, including as permitted by
Rule 415 of the Securities Act (or any similar provision then in force under the Securities Act) or
otherwise.
“Underwritten Offering” means an offering (including an offering pursuant to a Shelf
Registration Statement) in which Common Units are sold to an underwriter on a firm commitment basis
for reoffering to the public or an offering that is a “bought deal” with one or more investment
banks.
“Underwritten Offering Request” has the meaning specified in Section 2.03(a)
of this Agreement.
Section 1.02 Registrable Securities. Any Registrable Security will cease to be a
Registrable Security when (a) 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 registration statement; (b) such Registrable Security has been disposed of
pursuant to any section of Rule 144 of the Securities Act (or any similar provision then in force
under the Securities Act); (c) such Registrable Security can be disposed of pursuant to Rule 144(k)
without volume limitations (or any similar provision then in force under the Securities Act); (d)
such Registrable Security is held by Copano or one of its subsidiaries; or (d) such Registrable
Security 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.
ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 2.01 Shelf Registration.
(a) Deadline to Go Effective. As soon as practicable following the Conversion, Copano
shall prepare and file a Shelf Registration Statement within 60 days of the Conversion under the
Securities Act with respect to all of the Registrable Securities (which should be effective
automatically if Copano continues to meet the Commission’s definition of a “Well Known Seasoned
Issuer”). If Copano does not meet the Commission’s definition of Well-Known Seasoned Issuer,
Copano shall use its commercially reasonable efforts to cause the Shelf Registration Statement to
become effective no later than 120 days after the date of the Conversion. A Shelf Registration
Statement filed pursuant to this Section 2.01 shall be on an appropriate registration form
under the Securities Act selected by Copano; provided, however, that if a prospectus supplement
will be used in connection with the marketing of an Underwritten Offering from the Shelf
Registration Statement and the Managing Underwriter at any time shall notify Copano 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 of such Registrable Securities, Copano shall use its commercially reasonable efforts to
include such information in the prospectus. Copano will use its commercially reasonable efforts to
cause the Shelf Registration Statement filed pursuant to this Section 2.01 to be
continuously effective under the Securities Act until the earlier of (i) the date as of which all
such Registrable Securities have been sold by the Holders or (ii) the date on which all Registrable
Securities covered by the Shelf Registration Statement have ceased to be Registrable Securities
hereunder in accordance with Section 1.02 above (the “Effectiveness Period”). The
Shelf Registration Statement when declared effective (including the
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documents incorporated therein by reference) shall comply as to form in all material respects
with all applicable requirements of the Securities Act and the Exchange Act and will 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.
(b) Delay Rights. Notwithstanding anything to the contrary contained herein, Copano
may, upon written notice to any Selling Holder whose Registrable Securities are included in the
Shelf Registration Statement, suspend such Selling Holder’s use of any prospectus that is a part of
the Shelf Registration Statement (in which event the Selling Holder shall discontinue sales of the
Registrable Securities pursuant to the Shelf Registration Statement) if (i) Copano is pursuing an
acquisition, merger, reorganization, disposition or other similar transaction and Copano determines
in good faith that Copano’s ability to pursue or consummate such a transaction would be materially
adversely affected by any required disclosure of such transaction in the Shelf Registration
Statement or (ii) Copano has experienced some other material non-public event the disclosure of
which at such time, in the good faith judgment of Copano, would materially adversely affect Copano;
provided, however, in no event shall any such Selling Holder be suspended for a period exceeding an
aggregate of ninety (90) days (exclusive of days covered by any lock-up agreement executed by such
Selling Holder in connection with any Underwritten Offering by Copano or a Selling Holder) in any
365-day period. Upon disclosure of such information or the termination of the condition described
above, Copano shall provide prompt notice to the Selling Holders whose Registrable Securities are
included in the Shelf Registration Statement, and shall promptly terminate any suspension of sales
it has put into effect and shall take such other actions to permit registered sales of Registrable
Securities as contemplated in this Agreement.
Section 2.02 Piggyback Rights.
(a) Participation. If at any time after the Conversion Copano proposes to file (i) a
prospectus supplement to an effective shelf registration statement, other than the Shelf
Registration Statement contemplated by Section 2.01 of this Agreement, or (ii) a
registration statement, other than a shelf registration statement or a registration statement on
Form S-4 or Form S-8 or any similar or successor form, in either case, for the sale of Common Units
for its own account and/or another Person, then as soon as practicable but not less than three (3)
Business Days prior to the filing of (x) any preliminary prospectus supplement relating to any such
proposed offering that is an Underwritten Offering pursuant to Rule 424(b) of the Securities Act,
(y) the prospectus supplement relating to any such proposed offering that is an Underwritten
Offering pursuant to Rule 424(b) of the Securities Act (if no preliminary prospectus supplement is
used) or (z) such registration statement as the case may be, then, Copano shall give notice of such
proposed Underwritten Offering or registration statement to the Holders and such notice shall offer
the Holders the opportunity to include in such Underwritten Offering or registration statement such
number of Registrable Securities (the “Included Registrable Securities”) as each such
Holder may request in writing; provided, however, that if Copano has been advised by the Managing
Underwriter that the inclusion of Registrable Securities for sale for the benefit of the Holders
will have an adverse effect on the price, timing or distribution of the Common Units, then the
amount of Registrable Securities to be offered for the accounts of Holders shall be determined
based on the provisions of Section 2.02(b) of this Agreement. Each Holder shall keep any
information relating to any such Underwritten Offering or registration statement confidential and
shall not disseminate or in any way disclose such information. The notice required to be provided
in this Section 2.02(a) to Holders shall be provided on a Business Day pursuant to
Section 3.01 hereof and receipt of such notice shall be promptly confirmed by each Holder.
Each Holder shall then have three (3) Business Days after such Holder confirms receipt of the
notice to request inclusion of Registrable Securities in the Underwritten Offering, except that a
Holder shall have one (1) Business Day after such Holder confirms receipt of the notice to request
inclusion of Registrable Securities in the Underwritten Offering in the case of a “bought deal” or
“overnight transaction”. If no request for inclusion from a Holder is received within the
specified time,
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such Holder shall have no further right to participate in such Underwritten Offering. If, at
any time after giving written notice of its intention to undertake an Underwritten Offering and
prior to the closing of such Underwritten Offering, Copano shall determine for any reason not to
undertake or to delay such Underwritten Offering, Copano may, at its election, give written notice
of such determination to the Selling Holders and, (x) in the case of a determination not to
undertake such Underwritten Offering, shall be relieved of its obligation to sell any Included
Registrable Securities in connection with such terminated Underwritten Offering, and (y) in the
case of a determination to delay such Underwritten Offering, shall be permitted to delay offering
any Included Registrable Securities for the same period as the delay in the Underwritten Offering.
Any Selling Holder shall have the right to withdraw such Selling Holder’s request for inclusion of
such Selling Holder’s Registrable Securities in such offering by giving written notice
(“Opt-Out Notice”) to Copano of such withdrawal up to and including the time of pricing of
such offering; provided, that such Selling Holder may later revoke any such Opt-Out Notice in
writing. Each Holder’s rights under this Section 2.02(a) shall terminate when such Holder
holds less than five million dollars ($5,000,000.00) of Registrable Securities (based on the
initial purchase price per unit of the Class D Units under the Purchase Agreement, as adjusted for
any subdivision, combination, or unit dividend or unit distribution).
(b) Priority of Piggyback Rights. In connection with an Underwritten Offering
contemplated by Section 2.02(a) hereof, if the Managing Underwriter or Underwriters of any
proposed Underwritten Offering of Common Units included in an Underwritten Offering involving
Included Registrable Securities advises Copano that the total amount of Common Units that the
Selling Holders and any other Persons intend to include in such offering exceeds the number that
can be sold in such offering without being likely to have an adverse effect on the price, timing or
distribution of the Common Units offered or the market for the Common Units, then the Common Units
to be included in such Underwritten Offering shall include the number of Registrable Securities
that such Managing Underwriter or Underwriters advises Copano can be sold without having any such
adverse effect, with such number to be allocated (i) first, to Copano; (ii) second, to Copano’s
pre-IPO investors as provided in (A) the Stakeholders’ Agreement dated July 30, 2004, and (B)
Article XIV of the Company’s Third Amended and Restated Limited Liability Company Agreement dated
April 30, 2007 as amended or restated from time to time; and (iii) third, pro rata among (A) the
purchasers listed in Schedule 2.01 of that certain Class B Unit and Common Unit Purchase Agreement
dated August 17, 2005, (B) the purchasers named in that certain Common Unit Purchase Agreement
dated December 29, 2005, (C) the holders of Class C Units issued as consideration in connection
with the acquisition of Cimmarron Gathering, L.P. pursuant to the Acquisition Agreement dated May
1, 2007, (D) the holders of Class D Units issued to CRH pursuant to the Purchase Agreement and (E)
the holders of the Common Units and Class E Units to be issued in connection with Copano’s PIPE
equity financing to fund the transactions contemplated in the Purchase Agreement, on the fraction
derived by dividing (x) the number of Common Units proposed to be sold by such Selling Holder in
such Underwritten Offering by (y) the aggregate number of Common Units proposed to be sold by all
Selling Holders in such Underwritten Offering. As of the date of execution of this Agreement,
there are no other Persons with Registration Rights other than as described in this Section
2.02(b).
Section 2.03 Underwritten Offering.
(a) Request for Underwritten Offering. If a Selling Holder elects to dispose of
Registrable Securities under the Shelf Registration Statement pursuant to an Underwritten Offering
and reasonably anticipates gross proceeds of greater than seventy-five million dollars
($75,000,000.00) from such Underwritten Offering, Copano shall, at the request of such Selling
Holder (each, an “Underwritten Offering Request”), enter into an underwriting agreement in
customary form with the Managing Underwriter or Underwriters, which shall include, among other
provisions, indemnities to the effect and to the extent provided in Section 2.08, and shall
take all such other reasonable actions as are requested by
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the Managing Underwriter to expedite or facilitate the disposition of the Registrable
Securities; provided, however, that Copano management will not be required to participate in any
roadshow or similar marketing effort on behalf of any Selling Holder and no Selling Holder shall
make more than one Underwritten Offering Request in any 180-day period.
(b) General Procedures. In connection with any Underwritten Offering under this
Agreement, Copano shall be entitled to select the Managing Underwriter or Underwriters. In
connection with an Underwritten Offering under Section 2.01 or Section 2.03 hereof,
each Selling Holder and Copano 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, Copano 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 its obligations. No
Selling Holder shall be required to make any representations or warranties to or agreements with
Copano or the underwriters other than representations, warranties or agreements regarding such
Selling Holder and its ownership of the securities being registered on its behalf and 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 therefrom by
notice to Copano and the Managing Underwriter; provided, however, that such withdrawal must be made
prior to the time in the penultimate sentence of Section 2.02(a) hereof to be effective.
No such withdrawal or abandonment shall affect Copano’s obligation to pay Registration Expenses.
Section 2.04 Sale Procedures. In connection with its obligations contained in
Section 2.01 and Section 2.03, Copano will, as expeditiously as possible:
(a) prepare and file with the Commission such amendments and supplements to the Shelf
Registration Statement and the prospectus used in connection therewith as may be necessary to keep
the Shelf 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 securities
covered by the Shelf Registration Statement;
(b) furnish to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Shelf Registration Statement or any other registration statement contemplated by this
Agreement 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 the Shelf Registration Statement or such other registration statement or supplement or
amendment thereto, and (ii) such number of copies of the Shelf Registration Statement or such other
registration statement and the prospectus included therein and any supplements and amendments
thereto as such Persons may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such Shelf Registration Statement or other
registration statement;
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(c) if applicable, use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by the Shelf Registration Statement or any other registration
statement contemplated by this Agreement 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 Copano shall 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 which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(d) promptly notify each Selling Holder and each underwriter of Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the Securities Act, of
(i) the filing of the Shelf Registration Statement or any other registration statement contemplated
by this Agreement or any prospectus or prospectus supplement to be used in connection therewith, or
any amendment or supplement thereto, and, with respect to such Shelf Registration Statement or any
other 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 the Shelf
Registration Statement or any other registration statement or any prospectus or prospectus
supplement thereto;
(e) immediately notify each Selling Holder and each underwriter of Registrable Securities, at
any time when a prospectus relating thereto 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 the Shelf Registration Statement or any other registration statement contemplated by
this Agreement, 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 light of the circumstances then existing; (ii) the issuance or threat of
issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration
Statement or such other registration statement, or the initiation of any proceedings for that
purpose; or (iii) the receipt by Copano 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, Copano agrees to as amend or
supplement the prospectus or prospectus supplement as promptly as practicable or to 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 action as is necessary to remove a stop order, suspension, threat
thereof or proceedings related thereto;
(f) 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;
(g) in the case of an Underwritten Offering, furnish upon request, (i) an opinion of counsel
for Copano, dated the date of the closing under the underwriting agreement, and (ii) a “cold
comfort” letter, dated the effective date of the applicable registration statement or the date of
any amendment or supplement thereto 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 Copano’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 are customarily covered in
opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in
Underwritten Offerings of securities and such other matters as such underwriters may reasonably
request;
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(h) 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;
(i) make available to the appropriate representatives of the Managing Underwriter and Selling
Holders access to such information and Copano personnel as is reasonable and customary to enable
such parties to establish a due diligence defense under the Securities Act; provided, however, that
Copano need not disclose any information to any such representative unless and until such
representative has entered into a confidentiality agreement with Copano satisfactory to Copano;
(j) 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 Copano are then listed;
(k) 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 Copano to enable the Selling Holders to consummate the
disposition of such Registrable Securities;
(l) provide a transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration statement;
(m) 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; and
(n) Copano agrees that, if any Selling Holder could reasonably be deemed to be an
“underwriter”, as defined in Section 2(a)(11) of the Securities Act, in connection with the
registration statement in respect of any registration of Copano’s securities of any Selling Holder
pursuant to this Agreement, and any amendment or supplement thereof (any such registration
statement or amendment or supplement a “Selling Holder Underwriter Registration Statement”), then
Copano will cooperate with such Selling Holder in allowing such Selling Holder to conduct customary
“underwriter’s due diligence” with respect to Copano and satisfy its obligations in respect
thereof. In addition, at any Selling Holder’s request, Copano will furnish to such Selling Holder,
on the date of the effectiveness of any Selling Holder Underwriter Registration Statement and
thereafter from time to time on such dates as such Selling Holder may reasonably request, (i) a
letter, dated such date, from Copano’s independent certified public accountants in form and
substance as is customarily given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to such Selling Holder, and (ii) an opinion, dated as of
such date, of counsel representing Copano for purposes of such Selling Holder Underwriter
Registration Statement, in form, scope and substance as is customarily given in an underwritten
public offering, including a standard “10b-5” opinion for such offering, addressed to such Selling
Holder. Copano will also permit legal counsel to such Selling Holder to review and comment upon any
such Selling Holder Underwriter Registration Statement at least five (5) Business Days prior to its
filing with the Commission and all amendments and supplements to any such Selling Holder
Underwriter Registration Statement within a reasonable number of days prior to their filing with
the Commission and not file any Selling Holder Underwriter Registration Statement or amendment or
supplement thereto in a form to which such Selling Holder’s legal counsel reasonably objects.
Each Selling Holder, upon receipt of notice from Copano of the happening of any event of the
kind described in clause (e) of this Section 2.04, shall forthwith discontinue disposition
of the Registrable
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Securities until such Selling Holder’s receipt of the copies of the supplemented or amended
prospectus contemplated by clause (e) of this Section 2.04 or until it is advised in
writing by Copano 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 Copano, such Selling Holder will deliver, or will request the managing underwriter or
underwriters, if any, to deliver to Copano (at Copano’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.
If reasonably requested by a Selling Holder, Copano shall: (i) as soon as practicable
incorporate in a prospectus supplement or post-effective amendment such information as such Selling
Holder reasonably requests to be included therein relating to the sale and distribution of
Registrable Securities, including information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other terms of the offering
of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all
required filings of such prospectus supplement or post-effective amendment after being notified of
the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii)
as soon as practicable, supplement or make amendments to any Registration Statement.
Section 2.05 Cooperation by Holders. Copano shall have no obligation to include in
the Shelf Registration Statement units of a Holder or in a Underwritten Offering pursuant to
Section 2.02 units of a Selling Holder that has failed to timely furnish such information
that, in the opinion of counsel to Copano, is reasonably required in order for the registration
statement or prospectus supplement, as applicable, to comply with the Securities Act.
Section 2.06 Restrictions on Public Sale by Holders of Registrable Securities. Each
Holder of Registrable Securities that is included in the Shelf Registration Statement agrees not to
effect any public sale or distribution of the Registrable Securities during the thirty (30)
calendar day period following completion of a public offering of equity securities by Copano;
provided, however, that the duration of the foregoing restrictions shall be no longer than the
duration of the shortest “lock-up” restriction imposed by the underwriters on any unitholders of
Copano on whom such a “lock-up” restriction is imposed in connection with such public offering and
provided further that this Section 2.06 shall apply only to a Selling Holder that owns more
than twenty million dollars ($20,000,000.00) of the Registrable Securities at such time (based on
the initial purchase price per unit of the Class D Units under the Purchase Agreement, as adjusted
for any subdivision, combination, or unit dividend or unit distribution).
Section 2.07 Expenses.
(a) Certain Definitions. “Registration Expenses” means all expenses incident
to Copano’s performance under or compliance with this Agreement to effect the registration of
Registrable Securities on the Shelf Registration Statement pursuant to Section 2.01, an
Underwritten Offering pursuant to Section 2.02 or Section 2.03, and the disposition
of such securities, including, without limitation, all customary registration, filing, securities
exchange listing and The Nasdaq Stock Market LLC fees, all customary registration, filing,
qualification and other fees and expenses of complying with securities or blue sky laws, fees of
the National Association of Securities Dealers, Inc., transfer taxes and fees of transfer agents
and registrars, all word processing, duplicating and printing expenses, the fees and disbursements
of counsel and independent public accountants for Copano, including the expenses of any special
audits or “cold comfort” letters required by or incident to such performance and compliance.
Except as otherwise provided in Section 2.08 hereof, Copano shall not be responsible for
legal fees incurred by Holders in connection with the exercise of such Holders’ rights hereunder.
In addition, Copano shall not be responsible for any “Selling Expenses,” which means all
underwriting fees,
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discounts, commissions or similar fees or arrangements associated with the sale of the
Registrable Securities.
(b) Expenses. Copano will pay all reasonable Registration Expenses as determined in
good faith, including, in the case of an Underwritten Offering, whether or not any sale is made
pursuant to the related registration statement. Except as otherwise provided in Section
2.08 hereof, Copano shall not be responsible for legal fees incurred by Holders in connection
with the exercise of such Holders’ rights hereunder, or for any Selling Expenses. Each Selling
Holder shall pay all Selling Expenses in connection with any sale of its Registrable Securities
hereunder.
Section 2.08 Indemnification.
(a) By Copano. In the event of an offering of any Registrable Securities under the
Securities Act pursuant to this Agreement, Copano will indemnify and hold harmless each Selling
Holder thereunder, its directors and officers, 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 or underwriter within the meaning of the Securities Act
and the Exchange Act, against any losses, claims, damages, expenses or liabilities (including
reasonable attorneys’ fees and expenses) (collectively, “Losses”), joint or several, to
which such Selling Holder 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 contained in the Shelf Registration
Statement or any other registration statement contemplated by this Agreement, any preliminary
prospectus or final prospectus 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 and officers, 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; provided, however, that Copano 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, such underwriter or such controlling Person in
writing specifically for use in the Shelf Registration Statement or such other registration
statement, or prospectus supplement, 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
director, officer or controlling Person, and shall survive the transfer of such securities by such
Selling Holder.
(b) By Each Selling Holder. Each Selling Holder agrees severally and not jointly to
indemnify and hold harmless Copano, its directors and officers, and each Person, if any, who
controls Copano within the meaning of the Securities Act and the Exchange Act to the same extent as
the foregoing indemnity from Copano 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 the Shelf Registration Statement or such registration statement, any preliminary
prospectus or final prospectus included therein, 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
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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 which
it may have to any indemnified party other than under this Section 2.08. 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 2.08 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 and employ counsel 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.
(d) Contribution. If the indemnification provided for in this Section 2.08 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 which 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 which 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 2.08 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.
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Section 2.09 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, Copano agrees to use its commercially reasonable
efforts to:
(a) Make and keep public information regarding Copano available, as those terms are understood
and defined in Rule 144 of 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
Copano under the Securities Act and the Exchange Act at all times from and after the date hereof;
and
(c) So long as a Holder owns any Registrable Securities, furnish, unless otherwise available
by access electronically to the Commission’s XXXXX filing system, to such Holder forthwith upon
request a copy of the most recent annual or quarterly report of Copano, 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.
Section 2.10 Transfer or Assignment of Registration Rights. The rights to cause
Copano to register Registrable Securities granted to CRH by Copano under this Article II may be
transferred or assigned by CRH to one or more transferee(s) or assignee(s) of such Registrable
Securities; provided, however, that (except with respect to a total return swap) (a) unless such
transferee is an Affiliate of CRH, each such transferee or assignee will hold at least ten million
dollars ($10,000,000.00) of Registrable Securities (based on the initial purchase price per unit of
the Class D Units under the Purchase Agreement, as adjusted for any subdivision, combination, or
unit dividend or unit distribution)), (b) Copano 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 CRH under this
Agreement.
Section 2.11 Limitation on Subsequent Registration Rights. From and after the date
hereof, Copano shall not, without the prior written consent of the Holders of a majority of the
outstanding Registrable Securities, enter into any agreement with any current or future holder of
any securities of Copano that would allow such current or future holder to require Copano to
include securities in any registration statement filed by Copano on a basis that is superior in any
way to the piggyback rights granted to CRH hereunder.
ARTICLE III
MISCELLANEOUS
MISCELLANEOUS
Section 3.01 Communications. All notices and other communications provided for or
permitted hereunder shall be made in writing by facsimile, courier service or personal delivery:
(a) if to CRH, to the address set forth under that CRH’s signature block in accordance with
the provisions of this Section 3.01,
(b) if to a transferee of CRH, to such Holder at the address provided pursuant to Section
2.10 above, and
(c) if to Copano, at 0000 Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, notice of which is
given in accordance with the provisions of this Section 3.01.
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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 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 CRH under this Agreement may be transferred or assigned by CRH in accordance with Section
2.10 hereof.
Section 3.04 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 3.05 Recapitalization, Exchanges, Etc. Affecting the Common Units. The
provisions of this Agreement shall apply to the full extent set forth herein with respect to any
and all units of Copano or any successor or assign of Copano (whether by merger, consolidation,
sale of assets or otherwise) which 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 and the like occurring after the date of this Agreement.
Section 3.06 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 which such Person may have.
Section 3.07 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.
Section 3.08 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.09 Governing Law. The laws of the State of Delaware shall govern this
Agreement without regard to principles of conflict of laws.
Section 3.10 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 3.11 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. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with
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respect to the rights granted by Copano set forth herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject matter.
Section 3.12 Amendment. This Agreement may be amended only by means of a written
amendment signed by Copano 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 3.13 Termination. This Agreement shall terminate and be of no further force or
effect immediately following the date as of which all Common Units issued in the Conversion cease
to be Registrable Securities.
Section 3.14 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| COPANO ENERGY, L.L.C. |
||||
| By: | /s/ Xxxx X. Xxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxx, Xx. | |||
| Title: | Chairman of the Board and Chief Executive Officer | |||
Signature Page to the
Registration Rights Agreement
Registration Rights Agreement
| CANTERA RESOURCES HOLDINGS, LLC |
||||
| By: | /s/ Xxxxx X. Finger | |||
| Xxxxx X. Finger | ||||
| Senior Vice President and Chief Financial Officer | ||||
| Address: | ||||
| 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 0000 Xxxxxxxxx, Xxxxxxxx 00000 Attention: Chief Executive Officer Facsimile No.: (000) 000-0000 |
||||
Signature Page to the
Registration Rights Agreement
Registration Rights Agreement
