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EXHIBIT 1.1
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
DOCS(R) FINANCING PROGRAM
4,000,000 UNITS
(COMMON UNITS REPRESENTING LIMITED PARTNER INTERESTS)
SALES AGREEMENT
[_______ __, _____]
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THIS SALES AGREEMENT (the "Agreement") dated as of [______ __, _____]
between RCG Xxxxxxx Xxxxxxx, a division of Ramius Securities, LLC, having its
principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Sales
Manager") and Xxxxxx Xxxxxx Energy Partners, L.P., a limited partnership
organized and existing under the laws of the State of Delaware (the "Company").
WHEREAS, the Company desires to issue and sell through the Sales
Manager up to 4,000,000 units (the "Maximum Amount") of its common units
representing limited partner interests (the "Stock"), on the terms set forth in
Article II hereof.
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Sales Manager agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
1.1 The Company represents and warrants to, and agrees with, the Sales
Manager that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations thereunder ("Rules and Regulations"). A registration statement on
Form S-3 (Registration No. 333-66931) with respect to, among other securities,
the Stock, including a form of prospectus, has been filed by the Company with
the Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement and prospectus may have been amended or
supplemented prior to the date hereof. Any such amendment or supplement was so
prepared and filed, and any such amendment or supplement filed after the
effective date of such registration statement has become effective. No stop
order suspending the effectiveness of the registration statement has been
issued, and to the Company's knowledge no proceeding for that purpose has been
instituted or threatened by the Commission. Copies of such registration
statement and prospectus, any such amendment or supplement and all documents
incorporated by reference therein that were filed with the Commission have been
delivered to the Sales Manager. Such registration statement, as it may have
heretofore been amended, and may hereinafter be amended, is referred to herein
as the "Registration Statement," and the final form of prospectus included in
the Registration Statement, as amended or supplemented from time to time, is
referred to herein as the "Prospectus." Any reference herein to the Registration
Statement, the Prospectus, or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated (or deemed to be
incorporated) by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement
or Prospectus shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be incorporated
by reference therein. As referred to herein, the Company's "significant
subsidiaries" shall mean those subsidiaries of the Company deemed to be
"significant subsidiaries" pursuant to the definition of such term contained in
Rule 1-02 of Regulation S-X.
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(b) Each part of the Registration Statement, when such part
became or becomes effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Settlement Date (as hereinafter defined), conformed or will conform in all
material respects with the requirements of the Act and the Rules and
Regulations; each part of the Registration Statement, when such part became or
becomes effective, did not or 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 in light of the circumstances under which they
were made, not misleading; and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Settlement Date, did not or will not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
except that the foregoing shall not apply to statements in or omissions from any
such document in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Sales Manager, specifically for
use in the Registration Statement, the Prospectus or any amendment or supplement
thereto.
(c) The documents incorporated by reference in the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, when they became or become effective under the Act or were or are filed
with the Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, conformed or will conform in all material
respects with the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder.
(d) The financial statements of the Company, together with the
related schedules and notes thereto, set forth or included or incorporated by
reference in the Registration Statement and Prospectus fairly present the
financial condition of the Company as of the dates indicated and the results of
operations, changes in financial position, unitholders' equity, and cash flows
for the periods therein specified, in conformity with generally accepted
accounting principles consistently applied throughout the periods involved
(except as otherwise stated therein) and all adjustments necessary for a fair
presentation of results for such periods have been made. Any summary and
selected financial and statistical data included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the information
shown therein and, to the extent based upon or derived from the financial
statements, have been compiled on a basis consistent with the financial
statements presented therein except as otherwise stated therein or in the notes
thereto. In addition, any pro forma financial statements of the Company and the
related notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus, present fairly the information shown therein, have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
basis described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein except as otherwise
stated therein or in the notes thereto.
(e) The Company and its significant subsidiaries own or lease
all real and personal property necessary to the conduct of their respective
operations as presently conducted, in each case free and clear of all liens,
encumbrances and defects except such as are described in
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the Prospectus or such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company and its significant subsidiaries.
(f) The Company is a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware. The
Company has all necessary partnership power and authority to conduct the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement and the
Prospectus. The Company is duly licensed or qualified to do business and in good
standing as a foreign limited partnership in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned or
leased by it makes such licensing or qualification necessary (except where the
failure to be so licensed or qualified would not have a material adverse effect
on the financial condition, results of operations or business of the Company and
its subsidiaries, taken as a whole, or subject the Company or the limited
partners of the Company to any material liability or disability).
(g) Each of the Company's significant subsidiaries has been
duly formed or incorporated and is validly existing as a corporation, limited
partnership, general partnership or limited liability company in good standing
under the laws of the jurisdiction in which it is chartered or organized, with
full entity power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a corporation, limited partnership,
general partnership or limited liability company and is in good standing under
the laws of each jurisdiction which requires such qualification, other than any
jurisdiction where the failure to be so qualified would not, individually or in
the aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business.
(h) Kinder Xxxxxx X.X., Inc. (the "General Partner") is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The General Partner is an indirect subsidiary of
Xxxxxx Xxxxxx, Inc., a Delaware corporation. The General Partner is duly
licensed or qualified to do business and is in good standing as a foreign
corporation or foreign limited liability company, as the case may be, in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary (except where the failure to be so licensed or qualified
would not have a material adverse effect on the financial condition, results of
operations or business of the Company or the General Partner, taken as a whole,
or subject the Company or the limited partners of the Company to any material
liability or disability).
(i) The only significant subsidiaries of the Company or other
entities in which the Company has an equity ownership interest of 50% or more
and that own assets or conduct business are those listed on Schedule 1.1(i)
hereto.
(j) The General Partner is the sole general partner of the
Company with a 1% general partner interest in the Company; such general partner
interest is duly authorized by the Second Amended and Restated Agreement of
Limited Partnership of the Company dated
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January 14, 1998 (the "Partnership Agreement") and was validly issued to the
General Partner; and the General Partner owns such general partner interest free
and clear of all liens, encumbrances, security interests, equities, charges or
claims (except for such liens, encumbrances, security interests, equities,
charges or claims as are not, individually or in the aggregate, material to such
ownership or as described in the Registration Statement or the Prospectus).
(k) The General Partner is the sole general partner of each of
the subsidiaries identified on Schedule 1.1(k) as an Operating Partnership with
a 1.0101% general partner interest in each of the Operating Partnerships; such
general partner interests are duly authorized by the respective limited
partnership agreements of the Operating Partnerships, and were validly issued to
the General Partner; and the General Partner owns such general partner interests
free and clear of all liens, encumbrances, security interests, equities, charges
or claims (except for such liens, encumbrances, security interests, equities,
charges or claims as would not, individually or in the aggregate, be material to
such ownership or as described in the Registration Statement or the Prospectus).
(l) The Company is the sole limited partner of each of the
Operating Partnerships with a 98.9899% limited partner interest in each of the
Operating Partnerships; such limited partner interests, in each of such
Operating Partnerships, are duly authorized by the respective limited
partnership agreements of the Operating Partnerships, and were validly issued to
the Company and are fully paid and nonassessable (except as nonassessability may
be affected by certain provisions of the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act")); and the Company owns such limited partner
interests free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as would not, individually or in the
aggregate, be material to such ownership or as described in the Registration
Statement or the Prospectus).
(m) The Company has all necessary partnership power and
authority to enter into this Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company and is enforceable against the Company in accordance
with the terms hereof, subject, as to enforcement, (i) to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights, (ii) to general equity principles and (iii) as
the rights to indemnification or contribution thereunder may be limited by
federal or state securities laws.
(n) None of the Company and its significant subsidiaries is
(a) in violation of its Certificate of Incorporation, By-laws, Partnership
Agreement, limited liability company agreement or other organizational
documents, as the case may be, or (b) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound, except for such violations and defaults as would not have a material
adverse effect on the financial condition, results of operations or business of
the Company and its subsidiaries, taken as a whole.
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(o) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which any of the Company and its
subsidiaries is a party or of which any property of Company and its subsidiaries
is the subject that are required to be described in the Registration Statement
or the Prospectus and are not so described. To the knowledge of the Company, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(p) Each of the Company and the General Partner is, and after
giving effect to the offering and sale of the Stock, will be, exempt from
regulation as (i) a "holding company" or a "subsidiary company" of a "holding
company" thereof within the meaning of the Public Utility Holding Company Act of
1935, as amended, or (ii) an "investment company," a person "controlled by" an
"investment company" or an "affiliated person" of or "promoter" or "principal
underwriter" for an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(q) There are no preemptive rights or other rights to
subscribe for or to purchase, nor any restrictions upon the voting or transfer
of, any partnership interests or shares of stock of the Company or any of its
significant subsidiaries pursuant to any partnership agreement, any articles or
certificates of incorporation or other governing documents or any agreement or
other instrument to which the Company or one or more of its significant
subsidiaries is a party or by which any of them is bound (other than (a) the
General Partner's preemptive right contained in the Partnership Agreement, and
(b) as set forth in or incorporated by reference into the Prospectus). Except
for certain grants made under any employee or director stock option, stock
ownership or benefit plan of the Company, there are no outstanding options or
warrants to purchase any Stock or other securities of the Company or any of its
significant subsidiaries.
(r) Except as disclosed in the Registration Statement or the
Prospectus, or in any document incorporated therein neither the Company nor any
of its subsidiaries (i) has violated any federal, state or local law, rule,
ordinance, permit, decree, order or judgment relating to the protection of human
health or the environment or (ii) to the Company's knowledge, is liable or
responsible for the remediation of, or for any damages relating to, any toxic
waste, hazardous waste or hazardous substances, except for any violations and
remedial actions as would not have a material adverse effect on the financial
condition, results of operations or business of the Company and its
subsidiaries, taken as a whole, or subject the Company or the limited partners
of the Company to any material liability or disability. The terms "hazardous
waste," "toxic waste" and "hazardous substances" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(s) Each of the Company and its subsidiaries maintains
insurance (issued by insurers of recognized financial responsibility) of the
types and in the amounts generally deemed adequate for their respective
businesses and, to the knowledge of the Company, consistent with insurance
coverage maintained by similar companies in similar businesses, including, but
not limited to, insurance covering real and personal property owned or leased by
it against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force and effect.
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(t) None of the Company or its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material losses or any material
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material change in the capitalization or long-term debt of the
Company or its subsidiaries or any material adverse change in or affecting the
general affairs, management, financial position, unitholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(u) There is no document or contract of a character required
to be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or filed as
required.
(v) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and sale by the
Company of the Stock) will give rise to a right to terminate or accelerate the
due date of any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, or require any
consent or waiver under, or result in the execution or imposition of any lien,
charge, encumbrance, claim, security interest, restriction or defect upon any
properties or assets of the Company or one or more of its significant
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or one or more of its
significant subsidiaries is a party or by which any of them is bound, or any of
their respective properties or businesses are bound, or any franchise, license,
permit, judgment, decree, order, statute, rule or regulation applicable to the
Company or one or more of its significant subsidiaries or violate any provision
of the charter or by-laws of the Company or one or more of its significant
subsidiaries, except where any such foregoing occurrence in this paragraph (v)
will not interfere with the consummation of the transactions contemplated herein
and would not have a material adverse effect on the financial condition, results
of operations or business of the Company and its subsidiaries, taken as a whole;
and except for such consents or waivers which have already been obtained and are
in full force and effect; no consent, approval, authorizations or order of , or
filing with, any court or governmental agency or body is required for the issue
and sale of the Stock and the consummation by the company of the transactions
contemplated by this Agreement, except registration of the Stock under the Act
and except such as may be required by state securities or blue sky laws.
(w) All of the outstanding units of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable and none of the common units were issued in violation of any
preemptive or other similar right. The Stock, when issued and sold pursuant to
this Agreement, will be duly authorized and validly issued, fully paid and
nonassessable and will not be issued in violation of any preemptive or other
similar right. Except as disclosed in the Registration Statement and the
Prospectus, there is no commitment, plan or
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arrangement to issue, any capital stock of the Company or any security
convertible into or exercisable or exchangeable for, such capital stock. The
common units of the Company and the Stock conform in all material respects to
all statements relating thereto contained in the Registration Statement and the
Prospectus.
(x) The Company has not incurred any liability for a fee,
commission or other compensation on account of the employment of a broker or
finder in connection with the transactions contemplated by this Agreement other
than as described in the Registration Statement.
(y) Neither the Company nor the General Partner is involved in
any labor dispute and, to the knowledge of the Company, no such dispute has been
threatened, except for such disputes as would not have a material adverse effect
on the financial condition, results of operations or business of the Company and
its subsidiaries, taken as a whole, or subject the Company or the limited
partners of the Company to any material liability or disability.
(z) None of the Company, any of its significant subsidiaries
or the General Partner is in violation or default of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or the General Partner or any
of its properties, as applicable, except where such violation or default would
not, individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
ARTICLE II
SALE AND DELIVERY OF SECURITIES
2.1 (a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell through the Sales Manager, subject to Section
3.1(i), as exclusive agent, and the Sales Manager agrees to sell, as agent for
the Company, on a best efforts basis, up to the Maximum Amount of the Stock
during the term of this Agreement on the terms set forth herein. The Stock will
be sold from time to time in amounts and at prices as directed by the Company
and as agreed to by the Sales Manager.
(b) The Company or the Sales Manager may, upon notice to the
other party hereto by telephone (confirmed promptly by telecopy), at any time
and from time to time suspend the offering of Stock; provided, however, that
such suspension or termination shall not affect or impair the parties'
respective obligations with respect to units of Stock sold hereunder prior to
the giving of such notice.
(c) The compensation to the Sales Manager for sales of Stock
shall be at a fixed commission rate of 2% of the gross sales price per unit for
the first three million units of Stock sold under this Agreement and 1.5% of the
gross sales price per unit for the remaining one
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million units of Stock sold under this Agreement. The remaining proceeds, after
further deduction for any transaction fees imposed by any governmental or
self-regulatory organization in respect to such sale shall constitute the net
proceeds to the Company for such Stock (the "Net Proceeds").
(d) The Company shall open and maintain a trading account (the
"Trading Account") at a clearing agent designated by the Sales Manager to
facilitate the transactions contemplated by this Agreement. The Net Proceeds
from the sale of the Stock shall be available in the Trading Account on the
third business day (or such other day as is industry practice for regular-way
trading) following each sale of the Stock (each, a "Settlement Date"). The
Company shall effect the delivery of the applicable number of units of Stock to
an account designated by the Sales Manager at The Depository Trust Company on or
before the Settlement Date of each sale hereunder. The Sales Manager's
compensation shall be withheld from the sales proceeds on each Settlement Date
and shall be paid to the Sales Manager.
(e) At each Settlement Date, the Company shall be deemed to
have affirmed each representation and warranty contained in this Agreement. Any
obligation of the Sales Manager under this Agreement shall be subject to the
continuing accuracy of the representations and warranties of the Company herein,
to the performance by the Company of its obligations hereunder and to the
continuing satisfaction of the additional conditions specified in Article IV of
this Agreement.
(f) If the Company shall default on its obligation to deliver
Stock on any Settlement Date, the Company shall (i) hold the Sales Manager
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii) pay the Sales Manager any commission to which it
would otherwise be entitled absent such default.
ARTICLE III
COVENANTS OF THE COMPANY
3.1 The Company covenants and agrees with the Sales Manager that:
(a) As promptly as practicable after the date of this
Agreement, the Company will file a post-effective amendment to the Registration
Statement to permit sales of the Stock under the Act. The Company will use all
commercially reasonable efforts to cause such post-effective amendment to the
Registration Statement to become effective as promptly as possible thereafter.
(b) During the period in which a prospectus relating to the
Stock is required to be delivered under the Act, the Company will notify the
Sales Manager promptly of the time when any subsequent amendment to the
Registration Statement has become effective or any subsequent supplement to the
Prospectus has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or the Prospectus or for additional
information; the Company will not file any amendment or supplement to the
Registration Statement or Prospectus (other than any prospectus supplement
relating to the
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offering of other securities (including, without limitation, common units not
included in a Delayed Offering of Equity Securities, as defined below)
registered under the Registration Statement) unless a copy thereof has been
submitted to the Sales Manager a reasonable period of time before the filing and
the Sales Manager has not reasonably objected thereto; and it will furnish to
the Sales Manager at the time of filing thereof a copy of any document that upon
filing is deemed to be incorporated by reference in the Registration Statement
or Prospectus; and the Company will cause each amendment or supplement to the
Prospectus to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed.
(c) The Company will advise the Sales Manager, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Stock for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use all commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such a stop order should be issued.
(d) Within the time during which a prospectus relating to the
Stock is required to be delivered under the Act, the Company will comply with
all requirements imposed upon it by the Act and by the Rules and Regulations, as
from time to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Stock as contemplated by the provisions hereof and
the Prospectus. If during such period any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act, the Company will
promptly notify the Sales Manager to suspend the offering of Stock during such
period and the Company will amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance and will use all commercially reasonable
efforts to have any amendment or supplement to the Registration Statement or
Prospectus declared effective as soon as possible, unless the Company has
reasonable business reasons to defer public disclosure of the relevant
information.
(e) The Company will use all commercially reasonable efforts
to qualify the Stock for sale under the securities laws of such jurisdictions as
the Sales Manager designates and to continue such qualifications in effect so
long as required for the sale of the Stock, except that the Company shall not be
required in connection therewith to qualify as a broker/dealer or as a foreign
corporation, to execute a general consent to service of process in any
jurisdiction, or to subject itself to taxation in any jurisdiction where it is
not so subject.
(f) The Company will furnish to the Sales Manager and its
counsel (at the expense of the Company) copies of the Registration Statement,
the Prospectus (including all documents incorporated by reference therein) and
all amendments and supplements to the Registration Statement or Prospectus that
are filed with the Commission during the period in which a prospectus relating
to the Stock is required to be delivered under the Act (including all documents
filed with the Commission during such period that are deemed to be incorporated
by
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reference therein), in each case as soon as available and in such quantities as
the Sales Manager may from time to time reasonably request and, in the case when
the Trading Market is a national securities exchange, the Company will also
furnish copies of the Prospectus to such exchange in accordance with Rule 153 of
the Rules and Regulations.
(g) The Company will make generally available to its security
holders as soon as practicable, an earnings statement (which need not be
audited) covering a 12-month period that satisfies the provisions of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all of its
expenses incident to the performance of its obligations hereunder (including,
but not limited to, any transaction fees imposed by any governmental or
self-regulatory organization with respect to transactions contemplated by this
Agreement and any blue sky fees) and will pay the expenses of printing all
documents relating to the offering. The Company will also reimburse the Sales
Manager for its reasonable out-of-pocket costs and expenses incurred in
connection with entering into this Agreement, including, without limitation,
reasonable travel, reproduction, printing and similar expenses, as well as the
reasonable fees and disbursements of its legal counsel up to a maximum of
$30,000. However, the Company shall be entitled to recoupment of (i) all of the
expenses for which it has been responsible pursuant this Section 3.1(h) in
connection with it entering into this Agreement (but not any expenses incurred
by it subsequent thereto) and (ii) the amounts that the Company has previously
reimbursed the Sales Manager pursuant to the immediately preceding sentence
(together, the "Recoupable Expenses"), upon presentation to the Sales Manager of
proper invoices therefore. The Sales Manager shall effect this recoupment by
foregoing 50% of its compensation hereunder with respect to each Settlement Date
until the amount of such compensation so foregone equals the amount of the
Recoupable Expenses up to a maximum of $120,000.
(i) The Company agrees not to engage, enter into any agreement
with or solicit any other party to provide advice in respect of or otherwise act
as underwriter for any offering of securities involving a program similar, as
determined by the Sales Manager, to the Sales Manager's DOCS(R) transaction
contemplated by this Agreement (a "Delayed Offering of Equity Securities") until
the date six months from the date of this Agreement.
(j) The Company will not, directly or indirectly, offer or
sell any common units (other than the Stock) or securities convertible into or
exchangeable for, or any rights to purchase or acquire, common units during the
period from the date of this Agreement through the final Settlement Date for the
sale of Stock hereunder without (i) giving the Sales Manager at least three
business days' prior written notice specifying the nature of the proposed sale
and the date of such proposed sale and (ii) suspending activity under this
program for such period of time as may reasonably be determined by agreement of
the Company and the Sales Manager; provided, however, that no such notice and
suspension shall be required in connection with the Company's issuance or sale
of (i) common units pursuant to any employee or director stock option or
benefits plan, stock ownership plan, dividend reinvestment plan now in effect as
such plans may
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be amended from time to time, and (ii) common units issuable upon conversion of
securities or the exercise of warrants, options or other rights in effect or
outstanding on the date hereof.
(k) The Company will, at any time during the term of this
Agreement, as supplemented from time to time, advise the Sales Manager
immediately after it shall have received notice or obtain knowledge thereof, of
any information or fact that would alter or affect any opinion, certificate,
letter and other document provided to the Sales Manager pursuant to Article IV
herein.
(l) As a condition to the obligations of the Sales Manager to
sell stock as provided in this Agreement, promptly following the filing of (i)
each Annual Report on Form 10-K, (ii) each Quarterly Report on Form 10-Q, and
(iii) each Current Report on Form 8-K required to be filed pursuant to the
instructions to such report (except if such report is being filed solely
pursuant to Item 5 and/or Item 9 of the instructions to such report), the
Company (unless the Company is not then selling Stock through the Sales Manager
and has not requested the Sales Manager to sell Stock) shall furnish or cause to
be furnished to the Sales Manager forthwith a certificate dated the date of
filing with the Commission of such amendment, supplement or other document, the
date of effectiveness of amendment, as the case may be, in form satisfactory to
the Sales Manager to the effect that the statements contained in the certificate
referred to in Sections 4.1(f) hereof that were last furnished to the Sales
Manager are true and correct at the time of such amendment, supplement, filing,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificates, certificates of the same tenor as the certificates referred to in
said Sections 4.1(f), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificate.
(m) As a condition to the obligations of the Sales Manager to
sell stock as provided in this Agreement, promptly following the filing of (i)
each Annual Report on Form 10-K, (ii) each Quarterly Report on Form 10-Q, and
(iii) each Current Report on Form 8-K required to be filed pursuant to the
instructions to such report (except if such report is being filed solely
pursuant to Item 5 and/or Item 9 of the instructions to such report), the
Company (unless the Company is not then selling Stock through the Sales Manager
and has not requested the Sales Manager to sell Stock) shall furnish or cause to
be furnished forthwith to the Sales Manager and to counsel to the Sales Manager
(1) a written opinion of Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel to the Company
("Company Counsel"), or other counsel satisfactory to the Sales Manager, dated
the date of filing with the Commission of such amendment, supplement or other
document and the date of effectiveness of such amendment, as the case may be, in
form and substance satisfactory to the Sales Manager, of the same tenor as the
opinion referred to in Section 4.1(d) hereof, but modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion.
(n) As a condition to the obligations of the Sales Manager to
sell stock as provided in this Agreement, promptly following the filing of (i)
each Annual Report on Form 10-K, (ii) each Quarterly Report on Form 10-Q, and
(iii) each Current Report on Form 8-K required to be filed pursuant to the
instructions to such report which contains financial statements or
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financial and/or accounting information, the Company (unless the Company is not
then selling Stock through the Sales Manager and has not requested the Sales
Manager to sell Stock) shall cause PricewaterhouseCoopers LLP, or other
independent accountants satisfactory to the Sales Manager, forthwith to furnish
to the Sales Manager a letter, dated the date of effectiveness of such
amendment, or the date of filing of such supplement or other document with the
Commission, as the case may be, in form satisfactory to the Sales Manager, of
the same tenor as the letter referred to in Section 4.1(e) hereof but modified
to relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.
(o) The Company shall use all commercially reasonable efforts
to list, subject to notice of issuance, the Stock on the New York Stock
Exchange, Inc.
(p) The Company will not take any action in violation of the
provisions of Regulation M under the Exchange Act.
ARTICLE IV
CONDITIONS OF THE SALES MANAGER'S OBLIGATIONS
4.1 The obligations of the Sales Manager to sell the Stock as provided
herein shall be subject to the accuracy, as of the date hereof, and as of each
Settlement Date contemplated under this Agreement, of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The post-effective amendment to the Registration Statement
contemplated by Section 3.1(a) shall have been declared effective. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of the Company or the Sales Manager, threatened by the Commission, and
any request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the Sales Manager's satisfaction.
(b) The Sales Manager shall not have advised the Company that
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, is not acceptable to the Sales Manager in its good faith opinion.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any material change in
the capital stock of the Company, or any material adverse change, or any
development that may reasonably be expected to cause a material adverse change,
in the condition (financial or other), business, prospects, net worth or results
of operations of the Company and its subsidiaries taken as a whole.
(d) The Sales Manager shall have received at the date of the
first sale of Stock hereunder (the "Commencement Date") and at every other date
specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as of the
Commencement Date and dated as of such other
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date, respectively, in the form and substance of Exhibit A to this Agreement. To
the extent deemed advisable by such counsel, they may rely as to matters of fact
on certificates of responsible officers of the Company and public officials.
Copies of such certificates shall be furnished to the Sales Manager and its
counsel.
(e) At the Commencement Date and at such other dates specified
in Section 3.1(o) hereof, the Sales Manager shall have received a letter from
PricewaterhouseCoopers LLP, independent public accountants for the Company, or
other independent accountants satisfactory to the Sales Manager, dated the date
of delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a
certificate, or certificates, signed by the Chairman of the Board, the President
or a Vice President and by the principal financial or accounting officer of the
Company, dated as of the Commencement Date and dated as of the first business
day of each calendar month thereafter (each, a "Certificate Date"), to the
effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Company
in this Agreement are true and correct, as if made at and as
of the Commencement Date or the Certificate Date (as the case
may be), and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Commencement Date and each
such Certificate Date (as the case may be);
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding
for that purpose has been instituted or, to the knowledge of
such officer after due inquiry, is threatened, by the
Commission;
(iii) Since the date of this Agreement there has
occurred no event required to be set forth in an amendment or
supplement to the Registration Statement or Prospectus that
has not been so set forth and there has been no document
required to be filed under the Exchange Act and the rules and
regulations of the Commission thereunder that upon such filing
would be deemed to be incorporated by reference in the
Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not
been any material adverse change in the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company, which has not been
described in an amendment or supplement to the Registration
Statement or Prospectus (directly or by incorporation).
In addition, on each Certificate Date the certificate shall also
reconfirm that the units of Stock sold during the immediately preceding month
were duly and validly authorized by the Company and that all corporate action
required to be taken for the authorization, issuance and sale of such Stock had
been validly and sufficiently taken.
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(g) At the Commencement Date and on each Settlement Date, the
Company shall have furnished to the Sales Manager such appropriate further
information, certificates and documents as the Sales Manager may reasonably
request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Sales Manager. The Company will furnish the Sales Manager with
such conformed copies of such opinions, certificates, letters and other
documents as the Sales Manager shall reasonably request.
ARTICLE V
INDEMNIFICATION AND CONTRIBUTION
5.1 (a) The Company agrees to indemnify and hold harmless the Sales
Manager and each person, if any, who controls the Sales Manager within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 5(c) hereof, the
reasonable fees and disbursements of counsel chosen by the
Sales Manager), reasonably incurred in investigating,
preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Sales Manager expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); provided further, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of the Sales Manager or its affiliates that failed to deliver a
Prospectus, as then amended or supplemented, (so long as the Prospectus and any
amendments or supplements thereto was provided by the Company to the Sales
Manager in the requisite quantity and on a timely basis to permit proper
delivery) to the person asserting any losses, claims, damages, liabilities or
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in such preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the Prospectus, as so amended or supplemented, and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
(b) The Sales Manager agrees to indemnify and hold harmless
the Company, the General Partner and each of the respective directors and each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 5.1(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Sales Manager expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Any indemnified party that proposes to assert the right to
be indemnified under this Article V will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Article V, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve the indemnifying party from any liability that it might have to
any indemnified party except to the extent it was prejudiced by such omission.
If any such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice
to the indemnified party promptly after receiving notice of the commencement of
the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently
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incurred by the indemnified party in connection with the defense. The
indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Article V is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Sales Manager, the
Company and the Sales Manager will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Sales Manager, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and the Sales Manager may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the
Sales Manager on the other. The relative benefits received by the Company on the
one hand and the Sales Manager on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total compensation (before
deducting expenses) received by the Sales Manager from the sale of Stock on
behalf of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the relative
fault of the Company, on the one hand, and the Sales Manager, on the other, with
respect to the statements or omission which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information
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supplied by the Company or the Sales Manager, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Sales Manager agree that
it would not be just and equitable if contributions pursuant to this Section
5.1(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 5.1(d) shall be deemed to include,
for the purpose of this Section 5.1(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the foregoing provisions of this
Section 5.1(d), the Sales Manager shall not be required to contribute any amount
in excess of the amount by which the total actual sales price at which Stock
sold by the Sales Manager exceeds the amount of any damages that the Sales
Manager has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5.1(d), any person
who controls a party to this Agreement within the meaning of the Act will have
the same rights to contribution as that party, and each officer of the Company
who signed the Registration Statement will have the same rights to contribution
as the Company, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim for contribution may
be made under this Section 5.1(d), will notify any such party or parties from
whom contribution may be sought, but the omission so to notify will not relieve
that party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 5.1(d). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution provided by this Article V
shall not relieve the Company and the Sales Manager from any liability the
Company and the Sales Manager may otherwise have (including, without limitation,
any liability the Sales Manager may have for a breach of its obligations under
Article II hereof).
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ARTICLE VI
REPRESENTATIONS AND AGREEMENTS
TO SURVIVE DELIVERY
6.1 All representations, warranties and agreements of the Company
herein or in certificates delivered pursuant hereto, and the agreements of the
Sales Manager contained in Article V hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Sales Manager or any controlling persons, or the Company (or any of their
officers, directors or controlling persons), and shall survive delivery of and
payment for the Stock.
ARTICLE VII
TERMINATION
7.1 The Sales Manager shall have the right by giving notice as
hereinafter specified at any time at or prior to any Settlement Date, to
terminate this Agreement if (i) any material adverse change, or any development
that has actually occurred and that is reasonably expected to cause material
adverse change, in the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company has occurred
which, in the reasonable judgment of the Sales Manager, materially impairs the
investment quality of the Stock, (ii) the Company shall have failed, refused or
been unable, at or prior to any Settlement Date, to perform any agreement on its
part to be performed hereunder, (iii) any other condition of the Sales Manager's
obligations hereunder is not fulfilled, (iv) any suspension or limitation of
trading in the Stock on the Trading Market, or any setting of minimum prices for
trading of the Stock on such Trading Market, shall have occurred, (v) any
banking moratorium shall have been declared by Federal or New York authorities
or (vi) an outbreak or material escalation of major hostilities in which the
United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this Agreement
that, in the judgment of the Sales Manager, makes it impractical or inadvisable
to proceed with the completion of the sale of and payment for the Stock to be
sold by the Sales Manager on behalf of the Company. Any such termination shall
be without liability of any party to any other party except that the provisions
of Section 3.1(h), Article V and Article VI hereof shall remain in full force
and effect notwithstanding such termination. If the Sales Manager elects to
terminate this Agreement as provided in this Article, the Sales Manager shall
provide the required notice as specified herein.
7.2 The Company shall have the right, by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time after
six months after the date of this Agreement. Any such termination shall be
without liability of any party to any other party except that the provisions of
Section 3.1(h), Section 3.1(i), Article V and Article VI hereof shall remain in
full force and effect notwithstanding such termination.
7.3 The Sales Manager shall have the right, by giving notice as
hereinafter specified,
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to terminate this Agreement in its sole discretion at any time after the earlier
of (i) six months after of the date of this Agreement and (ii) the Company's
engagement of another party to act as underwriter pursuant to Section 3.1(i)
hereof in connection with an Delayed Offering of Equity Securities. Any such
termination shall be without liability of any party to any other party except
that the provisions of Article 3.1(h), Article V and Article VI hereof shall
remain in full force and effect notwithstanding such termination.
7.4 This Agreement shall remain in full force and effect unless
terminated pursuant to Section 7.1, 7.2 or 7.3 above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Section 3.1(h), Article V and
Article VI shall remain in full force and effect.
7.5 Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by the Sales Manager or the Company, as the case may be. If such
termination shall occur during a period when sales of Stock are being made
pursuant to this Agreement, any Stock made prior to the termination of this
Agreement shall settle in accordance with the provisions of this Agreement.
ARTICLE VIII
NOTICES
8.1 All notices or communications hereunder shall be in writing and if
sent to the Sales Manager shall be mailed, delivered or telecopied and confirmed
to the Sales Manager at RCG Xxxxxxx Xxxxxxx at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, facsimile number (000) 000-0000, Attention: Corporate Finance, or if
sent to the Company, shall be mailed, delivered or telecopied and confirmed to
the Company at Xxxxxx Xxxxxx Energy Partners, L.P., 000 Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, facsimile number (000) 000-0000, Attention: General Counsel.
Each party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
ARTICLE IX
MISCELLANEOUS
9.1 This Agreement shall inure to the benefit of and be binding upon
the Company and the Sales Manager and their respective successors and the
controlling persons, officers and directors referred to in Article V hereof, and
no other person will have any right or obligation hereunder.
9.2 This Agreement constitutes the entire agreement and supersedes all
other prior and contemporaneous agreements and undertakings, both written and
oral, among the parties hereto with regard to the subject matter hereof.
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9.3 THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
9.4 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. The parties agree that this Agreement will be
considered signed when the signature of a party is delivered by facsimile
transmission. Such facsimile transmission shall be treated in all respects as
having the same effect as an original signature.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
By: Kinder Xxxxxx X.X., Inc., its General Partner
By: Xxxxxx Xxxxxx Management, LLC, its delegate
By:
-------------------------------------------------
Name:
Title:
RCG XXXXXXX XXXXXXX, A DIVISION OF
RAMIUS SECURITIES, LLC
By:
-------------------------------------------------
Name:
Title:
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SCHEDULE 1.1(i)
LIST OF SUBSIDIARIES
Xxxxxx Xxxxxx Operating L.P. "A"
Xxxxxx Xxxxxx Operating L.P. "D"
Xxxxxx Xxxxxx Interstate Gas Transmission, LLC
SFPP, LP
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SCHEDULE 1.1(k)
LIST OF OPERATING PARTNERSHIPS
Xxxxxx Xxxxxx Operating L.P. "A"
Xxxxxx Xxxxxx Operating L.P. "B"
Xxxxxx Xxxxxx Operating L.P. "C"
Xxxxxx Xxxxxx Operating L.P. "D"
Xxxxxx Xxxxxx CO2 Company, L.P.
