COPANO ENERGY, L.L.C. 6,475,000 COMMON UNITS REPRESENTING LIMITED LIABILITY COMPANY INTERESTS UNDERWRITING AGREEMENT March 3, 2010
Exhibit 1.1
Execution Version
6,475,000 COMMON UNITS
REPRESENTING LIMITED LIABILITY COMPANY INTERESTS
March 3, 2010
March 3, 2010
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Fargo Securities, LLC
As Managers of the several Underwriters
listed on Schedule II hereto
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Fargo Securities, LLC
As Managers of the several Underwriters
listed on Schedule II hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Copano Energy, L.L.C., a Delaware limited liability company (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you
are acting as managers (the “Managers”), the number of common units representing limited liability
company interests in the Company set forth in Schedule I hereto (the “Firm Units”). The Company
also proposes to issue and sell to the several Underwriters not more than the number of additional
common units set forth in Schedule I hereto (the “Additional Units”) if and to the extent that you,
as Managers of the offering, shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such common units granted to the Underwriters in Section 2 hereof. The Firm
Units and the Additional Units are hereinafter collectively referred to as the “Units.” The common
units representing limited liability company interests in the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as the “Common Units.”
If the firm or firms listed in Schedule II hereto include only the Managers listed in Schedule I
hereto, then the terms “Underwriters” and “Managers” as used herein shall each be deemed to refer
to such firm or firms. The Company and its direct and indirect subsidiaries listed on Schedule III
hereto are collectively referred to herein as the “Copano Entities.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement (the file number of which is set forth in Schedule I hereto) on Form S-3,
including a prospectus, relating to the securities (the “Shelf Securities”), including the Units,
to be issued from time to time by the Company. The registration statement as amended to the date
of this Agreement, including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act
of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration
Statement,” and the related prospectus covering the Shelf Securities dated November 2, 2009 in the
form first used to confirm sales of the Units (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as
supplemented by the prospectus supplement specifically relating to the Units in the form first used
to confirm sales of the Units (or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173 under the
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Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the Securities Act and “broadly
available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under
the Securities Act that has been made available without restriction to any person.
At or prior to the time when sales of the Units were first made (the “Time of Sale”), the
Company had prepared the following information (collectively, the “Time of Sale Prospectus”): the
preliminary prospectus together with (A) the free writing prospectuses, if any, identified in
Schedule I hereto and (B) the pricing information identified on Schedule IV hereto.
As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein
with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any
preliminary prospectus or free writing prospectus shall include all documents subsequently filed by
the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters that:
(a) Registration Statement. The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of the Company,
threatened by the Commission. If the Registration Statement is an automatic shelf
registration statement as defined in Rule 405 under the Securities Act, the Company is a
well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use
the Registration Statement as an automatic shelf registration statement and the Company has
not received notice that the Commission objects to the use of the Registration Statement as
an automatic shelf registration statement.
(b) No Omissions or Material Misstatements. (i) Each document, if any, filed or to be
filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale
Prospectus or the Prospectus complied or will comply when so filed in all material respects
with the Exchange Act and the applicable rules and regulations of the Commission thereunder,
(ii) the Registration Statement as of its effective time, did not contain any 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, (iii) each of the Registration
Statement, when it became effective, and the Prospectus, as of its date and as of the
Closing Date (as defined in Section 4) and any Option Closing Date (as defined in Section
2), complied or will comply, as the case may be, in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder, (iv)
the Time of Sale Prospectus does not, and at the Time of Sale when the Prospectus is not yet
available to prospective purchasers, will not contain
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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, (v) each free writing prospectus (including, without limitation, any road
show that is a free writing prospectus under Rule 433 of the Securities Act) does not
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, (vi) each broadly available road show, if any, when considered
together with the Time of Sale Prospectus, does not contain any 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 and (vii) the
Prospectus will not, as of its date and as of the Closing Date and any Option Closing Date,
contain 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 representations and warranties set forth in this paragraph
do not apply to statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use therein.
(c) Free Writing Prospectus. The Company is not an “ineligible issuer” in connection
with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free
writing prospectus that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance with the
requirements of the Securities Act and the applicable rules and regulations of the
Commission thereunder. Each free writing prospectus that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by
or on behalf of or used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto forming part of the Time of Sale Prospectus, and electronic
road shows, if any, each furnished to you before first use, the Company has not prepared,
used or referred to, and will not, without your prior consent, prepare, use or refer to, any
free writing prospectus.
(d) Formation and Qualification. Each of the Copano Entities (except for Xxxx/Xxxxx
Gatherers, a Texas general partnership (“Xxxx/Xxxxx”), with respect to good standing) has
been duly formed and is validly existing in good standing under the laws of its jurisdiction
of formation, and is duly registered or qualified to do business and is in good standing as
a foreign corporation, limited liability company, limited partnership or general
partnership, as the case may be, in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such registration or qualification,
except where the failure so to register or qualify would not, individually or in the
aggregate, either (i) have a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Copano Entities taken as a whole or
(ii) prevent or materially interfere with the Company’s ability to consummate the
transactions contemplated hereby (the occurrence of any such effect or any such
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prevention or interference or any such result described in the foregoing clauses (i)
and (ii) being herein referred to as a “Material Adverse Effect”). Each of the Copano
Entities has all corporate, limited liability company, limited partnership or general
partnership, as the case may be, power and authority necessary to own or lease its
properties currently owned or leased or to be owned or leased at the Closing Date and any
Option Closing Date and to conduct its business as currently conducted and as to be
conducted at the Closing Date and any Option Closing Date, in each case in all material
respects as described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(e) Authority to Act as General Partner. Each of the Company’s direct or indirect
subsidiaries set forth under the heading “General Partner” on Exhibit D attached hereto has
all necessary limited liability company power and authority to act as general partner of
each of the subsidiaries set forth opposite its name under the heading “Limited
Partnerships” on Exhibit D attached hereto.
(f) Ownership of Subsidiaries. The Company directly or indirectly owns 100% of the
issued and outstanding capital stock, membership interests or partnership interests, as the
case may be, of the other Copano Entities (excluding Xxxx/Xxxxx, Big Xxxx Gas Gathering,
LLC, a Delaware limited liability company (“Big Horn”), Fort Union Gas Gathering, L.L.C., a
Delaware limited liability company (“Fort Union”), and Southern Dome, LLC, a Delaware
limited liability company (“Southern Dome”), as to which the Company owns a 62.5%
partnership interest, a 51% limited liability company interest, a 37.04% limited liability
company interest and a majority limited liability company interest, respectively) free and
clear of all liens, encumbrances, security interests, equities, charges and other claims
except for liens created pursuant to (i) the Amended and Restated Credit Agreement dated as
of January 1, 2007 among the Company, as the Borrower, Bank of America, N.A., as
Administrative Agent and L/C Issuer, JPMorgan Chase Bank, N.A. and Wachovia Bank, National
Association, as Co-Syndication Agents, and the other lenders party thereto and Banc of
America Securities LLC, as Sole Lead Arranger and Sole Book Manager, as amended by the First
Amendment to the Amended and Restated Credit Agreement, dated as of October 19, 2007, (the
“Credit Agreement”) or (ii) the Amended and Restated Credit Agreement, dated as of April 30,
2007, among Fort Union, as the Borrower, Bank of America, N.A., as Administrative Agent, L/C
Issuer, the other lenders party thereto and Banc of America Securities LLC, as Sole Lead
Arranger and Sole Book Manager (the “Fort Union Credit Agreement”). Such capital stock,
limited liability company interests or limited partnership interests, as the case may be,
have been duly authorized and validly issued and are fully paid (to the extent required
under such Subsidiary’s applicable constituent documents) and non-assessable (except as such
nonassessability may be affected by: (A) Section 18-607 of the Delaware Limited Liability
Company Act (the “Delaware LLC Act”), in the case of a Delaware limited liability company,
(B) Section 17-607 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP
Act”), in the case of a Delaware limited partnership, (C) Sections 3.03, 5.02 and 6.07 of
the Texas Revised Uniform Limited Partnership Act (the “Texas LP Act”), in the case of a
Texas limited partnership, (D) Section 5.09 of the Texas Limited Liability Company Act (the
“Texas LLC Act”), in the case of a Texas limited liability company or (E) or
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Section
2031 of the Oklahoma Limited Liability Company Act, in the case of an Oklahoma limited
liability company.
(g) No Other Subsidiaries. Other than its ownership interests in the other Copano
Entities, the Company does not own and at the Closing Date and any Option Closing Date, will
not own, directly or indirectly, any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association or other entity that,
individually or in the aggregate, would be deemed to be a “significant subsidiary” as such
term is defined in Rule 405 of the Securities Act.
(h) Authorization under the Limited Liability Company Agreement. At the Closing Date
and any Option Closing Date, the Units to be sold by the Company and the limited liability
company interests represented thereby will be duly authorized in accordance with the Third
Amended and Restated Limited Liability Company Agreement of the Company (as amended to date,
the “Limited Liability Company Agreement”) and, when issued and delivered against payment
therefor in accordance with this Agreement, will be validly issued, fully paid (to the
extent required under the Limited Liability Company Agreement) and non-assessable (except as
such nonassessability may be affected by Section 18-607 of the Delaware LLC Act).
(i) No Preemptive Rights, Registration Rights or Options. Except as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus or in the Operating
Agreements (as defined below), there are no preemptive rights or other rights to subscribe
for or to purchase, nor any restriction upon the voting or transfer of, any equity
securities in any of the Copano Entities, except for rights granted to the partners of
Xxxx/Xxxxx Gatherers and the members of Southern Dome, Big Horn and Fort Union pursuant to
their respective constituent documents. Neither the filing of the Registration Statement
nor the offering or sale of the Units as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any Units or other securities of any of the
Copano Entities other than as have been waived or deemed waived. Except as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus and except for
options granted pursuant to the Company’s employee benefit or other compensation plans since
the date of the Company’s most recently filed proxy statement pursuant to Section 14(a) of
the Exchange Act, there are no outstanding options or warrants to purchase any membership or
partnership interests in or capital stock of any of the Copano Entities.
(j) Capitalization. As of December 31, 2009, the Company had or would have had, on the
consolidated historical and as adjusted basis indicated in the Time of Sale Prospectus and
the Prospectus, a capitalization as set forth therein under the heading “Capitalization.”
(k) Authority and Authorization. The Company has all requisite limited liability
company power and authority to issue, sell and deliver the Units, in accordance with and
upon the terms and conditions set forth in this Agreement, the Limited Liability Company
Agreement, the Registration Statement, the Time of Sale Prospectus and the
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Prospectus. At the Closing Date and any Option Closing Date, all limited liability
company action required to be taken by the Company or any of its unitholders for the
authorization, issuance, sale and delivery of the Units and the consummation of the
transactions contemplated by this Agreement shall have been validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized and validly
executed and delivered by the Company and constitutes a valid and binding agreement of the
Company.
(m) Limited Liability Company Agreement. The Limited Liability Company Agreement has
been duly authorized, executed and delivered by affiliates of the Company’s management and,
assuming due authorization, execution and delivery by the other parties thereto, is a valid
and legally binding agreement of each of the parties thereto, enforceable against each of
them in accordance with its terms; provided, that the enforceability thereof may be limited
by (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws relating to or affecting creditors’ rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a proceeding in equity
or at law) and (ii) public policy, applicable law relating to fiduciary duties and
indemnification and contribution and an implied covenant of good faith and fair dealing.
(n) Subsidiary Operating Agreements. The certificate of incorporation, certificate of
formation, bylaws, limited liability company agreement, limited partnership agreement or
other organizational documents, as applicable, of the Copano Entities (excluding the
Company) (collectively, the “Subsidiary Operating Agreements” and, together with the Limited
Liability Company Agreement and the Certificate of Formation of the Company, as amended to
date, the “Operating Agreements”) have been duly authorized, executed and delivered by the
Copano Entities that are parties thereto, as applicable, and are valid and legally binding
agreements of the respective parties thereto, enforceable against the respective parties
thereto in accordance with their terms; provided that the enforceability thereof may be
limited by (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws relating to or affecting creditors’ rights generally and by
general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (ii) public policy, applicable law relating to fiduciary
duties and indemnification and contribution and an implied covenant of good faith and fair
dealing.
(o) No Conflicts. None of the offering, issuance and sale by the Company of the Units,
the execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby or thereby (i) conflicts or will conflict with or
constitutes or will constitute a violation of any of the Operating Agreements, (ii)
conflicts or will conflict with or constitutes or will constitute a breach or violation of,
or a default (or an event which, with notice or lapse of time or both, would constitute such
a default) under, any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which any of the Copano Entities is a party or by which any of
them or any of their respective properties may be bound, (iii) violates or
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will violate any statute, law or regulation or any order, judgment, decree or
injunction of any court or governmental agency or body having jurisdiction over any of the
Copano Entities or any of their respective properties in a proceeding to which any of them
or their property is or was a party or (iv) results or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of any of the
Copano Entities (other than liens created pursuant to the Credit Agreement), which
conflicts, breaches, violations, defaults or liens, in the case of clauses (ii), (iii) or
(iv), could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(p) No Consents. Except for (i) such consents, approvals, authorizations, orders,
filings, registrations or qualifications as may be required under the Exchange Act and
applicable state securities or “Blue Sky” laws in connection with the purchase and
distribution of the Units by the Underwriters, (ii) such consents that have been, or prior
to the Closing Date, will have been obtained and (iii) such consents that, if not obtained,
could not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, no consent, approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having jurisdiction over any of the Copano
Entities or any of their respective properties is required in connection with the offering,
issuance and sale by the Company of the Units, the execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the transactions
contemplated by this Agreement.
(q) No Default. None of the Copano Entities (i) is in violation of its applicable
Operating Agreement, (ii) is in default (and no event has occurred which, with notice or
lapse of time or both, would constitute such a default) in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii) is in violation of any law,
statute, ordinance, administrative or governmental rule or regulation applicable to it or of
any order, judgment, decree or injunction of any court or governmental agency or body having
jurisdiction over it, which default or violation in the case of clause (ii) or (iii), could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
To the knowledge of the Company without independent investigation, no third party to any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which
any of the Copano Entities is a party or by which any of them is bound or to which any of
their properties is subject, is in default under any such agreement, which default could, if
continued, reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. For purposes of this representation, “to the knowledge of the Company” is
limited to matters within the actual knowledge of the Company’s President and Chief
Executive Officer, Senior Vice President and Chief Financial Officer, Executive Vice
President, General Counsel and Secretary or Senior Vice President, Controller and Principal
Accounting Officer.
(r) Conformity of Units. The Units, when issued and delivered in accordance with the
terms of the Limited Liability Company Agreement against payment therefor as
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provided herein, will conform in all material respects to the descriptions thereof
contained or incorporated by reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus.
(s) No Material Adverse Change. Subsequent to the respective dates as of which
information is given in the Registration Statement or the Time of Sale Prospectus, in each
case excluding any amendments or supplements to the foregoing made after the execution of
this Agreement, there has not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business, properties, management,
financial condition or results of operations of the Copano Entities taken as a whole, (ii)
any transaction that is material to the Copano Entities taken as a whole, (iii) any
obligation or liability, direct or contingent (including any off-balance sheet obligations),
incurred by any of the Copano Entities that is material to the Copano Entities taken as a
whole, (iv) any change in the capital stock, membership or other equity interests or
outstanding indebtedness of any of the Copano Entities that is material to the Copano
Entities taken as a whole or (v) any dividend or distribution of any kind declared, paid or
made on the capital stock of, or in respect of membership or partnership interests in, the
Company or any of the direct and indirect subsidiaries of the Company (the “Subsidiaries”),
except for dividends or distributions made or paid to the Company or the Subsidiaries.
(t) Preparation of the Financial Statements. The historical financial statements
(including the related notes and supporting schedules) included or incorporated by reference
in the Registration Statement, the Time of Sale Prospectus and the Prospectus (and any
amendment or supplement thereto) present fairly in all material respects the financial
condition and results of operations of the entities purported to be shown thereby on the
basis stated therein, at the dates and for the periods indicated, and have been prepared in
conformity with U.S. generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The summary historical financial and operating information
set forth or incorporated by reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus (and any amendment or supplement thereto) is presented fairly
in all material respects and prepared on a basis consistent with the audited and unaudited
historical financial statements from which it has been derived. The other financial and
statistical data contained or incorporated by reference in the Registration Statement, the
Time of Sale Prospectus or the Prospectus (and any amendment or supplement thereto) are
accurately and fairly presented and prepared on a basis consistent with the financial
statements and books and records of the Company and its Subsidiaries. The Copano Entities
do not have any (i) off-balance sheet arrangements, as defined in Item 303(a)(4)(ii) of
Regulation S-K under the Exchange Act, or (ii) other liabilities or obligations, direct or
contingent, that are material to the Company and its Subsidiaries taken as a whole that are
not described in the Registration Statement, the Time of Sale Prospectus or the Prospectus;
and all disclosures contained or incorporated by reference in the Registration Statement,
the Time of Sale Prospectus or the Prospectus regarding “non-GAAP financial measures” (as
such term is defined by the rules and regulations of the Commission) comply with Regulation
G of the Exchange Act and Item 10 of Regulation S-K under
the Securities Act.
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(u) Independent Registered Public Accounting Firms. Deloitte & Touche LLP, which
expressed its opinion with respect to certain financial statements of the Company included
or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and
the Prospectus (or any amendment or supplement thereto) is, or was at the time of such
opinion with respect to the financial statements, an independent registered public
accounting firm within the meaning of Regulation S-X under the Securities Act and the
Exchange Act and the rules of the Public Company Accounting Oversight Board.
(v) Title to Real Property. Each of the Copano Entities has good and marketable title
to all real property and good title to all personal property described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus as owned by such Copano Entity,
free and clear of all (i) liens and security interests except liens or security interests
arising under or securing indebtedness incurred under the Credit Agreement or the Fort Union
Credit Agreement or (ii) other claims and other encumbrances (other than liens or security
interests) except, in each case, (1) as described, and subject to the limitations contained,
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (2) such as
do not materially affect the value of such property taken as a whole or (3) such as do not
materially interfere with the use of such properties taken as a whole as they have been used
in the past and are proposed to be used in the future as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus; provided that, with respect to
any real property and buildings held under lease by any of the Copano Entities, such real
property and buildings are held under valid and subsisting and enforceable leases with such
exceptions as do not materially interfere with the use of the properties of the Copano
Entities taken as a whole as they have been used in the past as described in the
Registration Statement, Time of Sale Prospectus and the Prospectus and are proposed to be
used in the future as described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus.
(w) Insurance. The Copano Entities maintain insurance covering their properties,
operations, personnel and businesses against such losses and risks and in such amounts as is
reasonably adequate for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar businesses in
similar industries. None of the Copano Entities has received notice from any insurer or
agent of such insurer that substantial capital improvements (relating to the Company and its
subsidiaries on a consolidated basis) or other substantial expenditures will have to be made
in order to continue such insurance, and all such insurance is outstanding and duly in force
on the date hereof and will be outstanding and duly in force on the Closing Date and any
Option Closing Date.
(x) Litigation. There are no actions, suits, claims, investigations or proceedings
pending or, to the knowledge of the Company, threatened or contemplated to which any of the
Copano Entities is or would be a party or of which any of their respective properties is or
would be subject at law or in equity, before or by any federal,
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state, local or foreign governmental or regulatory commission, board, body, authority
or agency, or before or by any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NASDAQ Global Select Market (the
“NASDAQ”)) that are required to be described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus but are not described as required or that, if resolved
adversely to any of the Copano Entities, could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(y) No Other Agreements. There are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration Statement, the Time
of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration
Statement by the Securities Act that have not been described or filed as required.
(z) No Labor Disputes. No labor dispute with the employees of any of the Copano
Entities exists or, to the knowledge of the Company, is imminent or threatened that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(aa) Certain Relationships and Related Transactions. No relationship, direct or
indirect, exists between or among any of the Copano Entities, on the one hand, and the
directors, officers, members, partners, equityholders, customers or suppliers of any of the
Copano Entities, on the other hand, that is required by the Securities Act to be described
in the Registration Statement, the Time of Sale Prospectus or the Prospectus that is not so
described. There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of indebtedness by any of the
Copano Entities to or for the benefit of any of the officers or directors of any of the
Copano Entities or their respective family members, except as disclosed in the Registration
Statement, the Time of Sale Prospectus or the Prospectus. None of the Copano Entities has,
in violation of the Xxxxxxxx-Xxxxx Act of 2002, directly or indirectly, extended or
maintained credit, arranged for the extension of credit, or renewed an extension of credit,
in the form of a personal loan to or for any director or executive officer of any of the
Copano Entities.
(bb) Xxxxxxxx-Xxxxx Act of 2002. The Company and its officers and directors are in
compliance in all material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act
of 2002 and the applicable rules and regulations thereunder.
(cc) Tax Returns. Each of the Copano Entities has filed (or has obtained extensions
with respect to) all material federal, state and local income and franchise tax returns
required to be filed through the date of this Agreement, which returns are correct and
complete in all material respects, and has timely paid all taxes due thereon, other than
those (i) that are being contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting principles or (ii) that, if not
paid, could not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
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(dd) Books and Records. Each of the Copano Entities (i) makes and keeps books and
records which, in reasonable detail, accurately and fairly reflect the transactions and
dispositions of assets and (ii) maintains internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with management’s
general or specific authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with generally accepted accounting
principles and to maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s general or specific authorization and (D) the
reported accountability for its assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(ee) Disclosure Controls. The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which (i) are designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’s principal executive
officer and its principal financial officer by others within those entities, particularly
during the periods in which the periodic reports required under the Exchange Act are being
prepared; (ii) have been evaluated for effectiveness as of the end of the period covered by
the Company’s most recent annual report on Form 10-K filed with the Commission and (iii) are
effective in all material respects to perform the functions for which they were established.
(ff) Internal Controls. Since the end of the period covered by the Company’s most
recent annual report on Form 10-K filed with the Commission, (i) other than the significant
deficiency identified in a letter from Deloitte & Touche LLP dated January 22, 2010, none of
the Copano Entities have been advised of (A) any significant deficiency in the design or
operation of internal controls that could adversely affect the Company’s ability to record,
process, summarize and report financial data or any material weaknesses in internal controls
or (B) any fraud, whether or not material, that involves management or other employees who
have a significant role in the Company’s internal controls and (ii) there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies
and material weaknesses, except for improvements and new procedures implemented as part of
the Company’s review of its internal controls.
(gg) Environmental Compliance. The Copano Entities (i) are in compliance with any and
all applicable federal, state and local laws and regulations relating to the protection of
human health and safety and the environment or imposing liability or standards of conduct
concerning any Hazardous Materials (as defined below) (“Environmental Laws”), (ii) have
received all permits required of them under applicable Environmental Laws to conduct their
respective businesses, (iii) are in compliance with all terms and conditions of any such
permits and (iv) do not have any liability in connection with the release into the
environment of any Hazardous Material, except where such noncompliance with Environmental
Laws, failure to receive required permits, failure to comply with the terms and conditions
of such permits or liability could
- 12 -
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. The term “Hazardous Material” means (A) any “hazardous substance” as
defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, (B) any “hazardous waste” as defined in the Resource Conservation and Recovery
Act, as amended, (C) any petroleum or petroleum product, (D) any polychlorinated biphenyl
and (E) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any other Environmental Law.
(hh) Permits. Each of the Copano Entities has, and at the Closing Date and any Option
Closing Date, will have, such permits, consents, licenses, franchises, certificates and
authorizations of governmental or regulatory authorities (“permits”) as are necessary to own
its properties and to conduct its business in the manner described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, subject to such qualifications as
may be set forth therein and except for such permits which, if not obtained, could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Except as set forth in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, each of the Copano Entities has, and at the Closing Date and any Option Closing
Date will have, fulfilled and performed all its material obligations with respect to such
permits which are or will be due to have been fulfilled and performed by such date and no
event has occurred that would prevent the permits from being renewed or reissued or which
allows, or after notice or lapse of time would allow, revocation or termination thereof or
results in any impairment of the rights of the holder of any such permit, except for such
non-renewals, non-issues, revocations, terminations and impairments that could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Except as described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus, none of such permits contains, or at the Closing Date and any Option Closing
Date will contain, any restriction that is materially burdensome to the Copano Entities
considered as a whole.
(ii) No Distribution. The Copano Entities have not distributed and, prior to the later
to occur of (i) the Closing Date or, if applicable, any Option Closing Date and (ii)
completion of the distribution of the Units, will not distribute, any prospectus (as defined
under the Securities Act) in connection with the offering and sale of the Units other than
the Time of Sale Prospectus and the Prospectus, in each case as contemplated by this
Agreement.
(jj) NASDAQ Listing. The Company has filed a supplemental listing application with the
NASDAQ covering the Units.
(kk) Investment Company. None of the Copano Entities is now, and after the sale of the
Units to be sold by the Company hereunder and the application of the net proceeds from such
sale as described in the Time of Sale Prospectus and the Prospectus under the caption “Use
of Proceeds” will be, an “investment company” or a company “controlled by” an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
- 13 -
(ll) No Stabilization Activities. The Company has not taken, directly or indirectly,
any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the Units.
(mm) Statistical and Market Data. Nothing has come to the attention of the Company that
has caused it to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Prospectus and the Prospectus is not based on or
derived from sources that are reliable and accurate in all material respects.
(nn) Lock-up Letters. The Company has obtained for the benefit of the Underwriters the
lock-up letters in the form set forth on Exhibit A hereto from each of the persons named on
Exhibit A-1 hereto.
(oo) Anti-Corruption. None of the Company nor any of its Subsidiaries or affiliates,
nor any director, officer, or employee, nor, to the Company’s knowledge, any agent or
representative of the Company or of any of its Subsidiaries or affiliates, has taken or will
take any action in furtherance of an offer, payment, promise to pay, or authorization or
approval of the payment or giving of money, property, gifts or anything else of value,
directly or indirectly, to any “government official” (including any officer or employee of a
government or government-owned or controlled entity or of a public international
organization, or any person acting in an official capacity for or on behalf of any of the
foregoing, or any political party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the Company and its
subsidiaries and affiliates have conducted their businesses in compliance with applicable
anti-corruption laws and have instituted and maintain and will continue to maintain policies
and procedures designed to promote and achieve compliance with such laws and with the
representation and warranty contained herein.
(pp) Compliance with Anti-Money Laundering Laws. The operations of the Copano Entities
are and have been conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act,
as amended by Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the
applicable anti-money laundering statutes of jurisdictions where the Copano Entities conduct
business, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the Copano Entities
with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(qq) OFAC.
- 14 -
(i) Neither the Company nor any of its Subsidiaries or , to the knowledge of
the Company, any director, officer, employee, agent, affiliate or representative of
the Copano Entities, is an individual or entity (“Person”) that is, or is owned or
controlled by a Person that is (A) the subject of any sanctions administered or
enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control
(“OFAC”) the United Nations Security Council, the European Union, Her Majesty’s
Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor (B)
located, organized or resident in a country or territory that is the subject of
Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea,
Sudan and Syria).
(ii) The Copano Entities will not, directly or indirectly, use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person (A) to fund or facilitate any
activities or business of or with any Person or in any country or territory that, at
the time of such funding or facilitation, is the subject of Sanctions; or (B) in any
other manner that will result in a violation of Sanctions by any Person (including
any Person participating in the offering, whether as underwriter, advisor, investor
or otherwise).
(iii) The Copano Entities have not knowingly engaged in, is not now knowingly
engaged in, and will not engage in, any dealings or transactions with any Person, or
in any country or territory, that at the time of the dealing or transaction is or
was the subject of Sanctions.
(rr) Any certificate signed by an officer of any of the Copano Entities and delivered
to the Underwriters or counsel to the Underwriters shall be deemed a representation and
warranty by such Copano Entity to the Underwriters as to the matters set forth therein.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective numbers of Firm Units set forth in Schedule II hereto
opposite its name at the purchase price set forth in Schedule I hereto (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to issue and sell to the Underwriters the Additional
Units, and the Underwriters shall have the right to purchase, severally and not jointly, up to the
number of Additional Units set forth in Schedule I hereto at the Purchase Price. The Managers may
exercise this right on behalf of the Underwriters in whole or from time to time in part by giving
written notice not later than 30 days after the date of the Prospectus. Any exercise notice shall
specify the number of Additional Units to be purchased by the Underwriters and the date on which
such units are to be purchased. Each purchase date must be at least one business day after the
written notice is given and may not be earlier than the closing date for the Firm Units nor later
than ten business days after the date of such notice. Additional Units may be
- 15 -
purchased as provided in Section 4 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Units. On each day, if any, that Additional Units
are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Units (subject to such adjustments to eliminate fractional
units as you may determine) that bears the same proportion to the total number of Additional Units
to be purchased on such Option Closing Date as the number of Firm Units set forth in Schedule II
hereto opposite the name of such Underwriter bears to the total number of Firm Units.
3. Public Offering. The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Units as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable. The Company is further
advised by you that the Units are to be offered to the public upon the terms set forth in the
Prospectus.
4. Payment and Delivery. Payment for the Firm Units shall be made to the Company in Federal
or other funds immediately available in New York City on the closing date and time set forth in
Schedule I hereto, or at such other time on the same or such other date, not later than the fifth
business day thereafter, as may be designated in writing by you. The time and date of such payment
are hereinafter referred to as the “Closing Date.”
Payment for any Additional Units shall be made to the Company in Federal or other funds
immediately available in New York City on the date specified in the corresponding notice described
in Section 2 or at such other time on the same or on such other date, in any event not later than
the tenth business day thereafter, as may be designated in writing by you.
The Firm Units and the Additional Units shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with the transfer of the
Units to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given
of any intended or potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating accorded any of the
securities of any of the Copano Entities by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act; and
- 16 -
(ii) except as set forth in the Time of Sale Prospectus, there shall not have occurred
any change, or any development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of any of the Copano Entities,
taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this
Agreement that, in your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Units on the terms and in the manner contemplated in
the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Company shall furnish to you, on the Closing Date and any Option Closing Date, an
opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Company, addressed to the Underwriters, and
dated as of the Closing Date or the Option Closing Date, as the case may be, with executed copies
for each of the other Underwriters, and in form and substance satisfactory to you as set forth in
Exhibit B hereto.
(d) The Company shall furnish to you, on the Closing Date and any Option Closing Date, an
opinion of Xxxxxxx X. Xxxxxx, Executive Vice President, General Counsel and Secretary of Company,
addressed to the Underwriters, and dated as of the Closing Date or the Option Closing Date, as the
case may be, with executed copies for each of the other Underwriters, and in form and substance
satisfactory to you as set forth in Exhibit C hereto.
(e) You shall have received, on the Closing Date and any Option Closing Date, the favorable
opinion of Xxxxx Xxxxx L.L.P., counsel for the Underwriters, dated as of the Closing Date or the
Option Closing Date, as the case may be, in form and substance reasonably satisfactory to you.
(f) No prospectus or amendment or supplement to the Registration Statement shall have been
filed to which you shall have objected in writing.
(g) The Registration Statement and any registration statement required to be filed prior to
the Closing Date under the Securities Act pursuant to Rule 462(b) shall have been filed and shall
have become effective under the Securities Act. The Prospectus Supplement shall have been filed
with the Commission pursuant to Rule 424(b) under the Securities Act at or before 5:30 P.M., New
York City time, on the second full business day after the date of this Agreement (or such earlier
time as may be required under the Securities Act).
- 17 -
(h) Prior to the Closing Date and, if applicable, any Option Closing Date, (i) no stop order
with respect to the effectiveness of the Registration Statement shall have been issued under the
Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the
Registration Statement and all amendments thereto shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and (iii) neither the Time of Sale Prospectus nor the
Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(i) The Underwriters shall have received, on each of the date hereof, the Closing Date and any
Option Closing Date, a letter dated the date hereof, the Closing Date or the Option Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche
LLP, independent public accountants, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a
“cut-off date” not earlier than the date hereof and any letter delivered with respect to an Option
Closing Date shall use a “cut-off date” that is not more than five days prior to the date of such
letter.
(j) The lock-up letters, each substantially in the form of Exhibit A hereto, executed by
certain executive officers and directors of the Company relating to sales and certain other
dispositions of Common Units or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date.
(k) The Company shall have furnished to you such other documents and certificates as to the
accuracy and completeness of any statement in the Registration Statement, the Time of Sale
Prospectus or the Prospectus as of the Closing Date and, if applicable, the Option Closing Date, as
you may reasonably request.
The several obligations of the Underwriters to purchase Additional Units hereunder are subject
to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Units to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Units.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference therein) and to deliver to each of the
Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time
of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as you may reasonably request.
- 18 -
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Units at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered
to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Units as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to
which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will
comply with applicable law.
- 19 -
(g) To endeavor to qualify the Units for offer and sale under the securities or Blue Sky laws
of such jurisdictions as you shall reasonably request, provided that, none of the Copano Entities
shall be required to qualify as a foreign entity or to take any action that would subject any of
the Copano Entities to service of process in any such jurisdiction where any such entity is not
presently qualified or where any such entity would be subject to taxation as a foreign entity.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Units under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or
referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Units (within the time required by Rule 456
(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Units to the Underwriters, including
any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky
or Legal Investment memorandum in connection with the offer and sale of the Units under state
securities laws and all expenses in connection with the qualification of the Units for offer and
sale under state securities laws as provided in Section 6(g) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Units by the Financial Industry
Regulatory Authority, (v) all costs and expenses incident to listing the Units on the NASDAQ, (vi)
the cost of printing certificates representing the Units, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to
investor presentations on any “road show” undertaken in connection with the marketing of the
offering of the Units, including, without limitation, expenses associated with the preparation or
dissemination of any electronic road show, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, (ix) the document production charges and expenses
associated with printing this Agreement and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this Section, Section 8
entitled “Indemnity and Contribution” and the
- 20 -
last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of
the Units by them and any advertising expenses connected with any offers they may make.
(j) The Company also covenants with each Underwriter that, without the prior written consent
of the Managers, on behalf of the Underwriters, it will not, during the restricted period set forth
in Schedule I hereto, (1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, or establish a put equivalent
position or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act with respect to any Common Units or any securities convertible into or exercisable or
exchangeable for Common Units or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Units,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Units or such other securities, in cash or otherwise or (3) file any registration statement
with the Commission relating to the offering of any Common Units or any securities convertible into
or exercisable or exchangeable for Common Units. The foregoing sentence shall not apply to (a) the
Units to be sold hereunder, (b) the issuance by the Company of Common Units upon the exercise of an
option or unit appreciation right outstanding on the date hereof or pursuant to the vesting of
phantom units outstanding on the date hereof, (c) the issuance of Common Units pursuant to the
Company’s Long-Term Incentive Plan described in the Registration Statement (excluding the exhibits
thereto), the Time of Sale Prospectus and the Prospectus (the “LTIP”) with respect to bonuses
payable to the Company’s employees and consultants, including upon commencement of employment, (d)
pledges existing on the date hereof and transfers pursuant to pledges existing on the date hereof,
(e) the establishment of a trading plan (each, a “10b5-1 Plan”) pursuant to Rule 10b5-1 under the
Exchange Act for the transfer of Common Units, provided that such plan does not provide for the
transfer of Common Units during the 60-day restricted period, (f) the transfer of Common Units
pursuant to existing 10b5-1 Plans outstanding on the date hereof or (g) issuances of restricted
units, phantom units, unit options and unit appreciation rights that are not exercisable or do not
vest during the 60-day restricted period to employees, consultants and directors of the Company and
its affiliates pursuant to the LTIP.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act and affiliates of any Underwriter who
have, or who are alleged to have, participated in the distribution of the Units from and against
any and all losses, claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or
- 21 -
alleged untrue statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto, 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, except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the
Prospectus or any amendment or supplement thereto. The Company acknowledges that (i) the
statements set forth in the last paragraph of the cover page regarding delivery of the Units and
(ii) the following statements contained under the heading “Underwriting”: (A) the list of
Underwriters and their respective participation in the sale of the Units, (B) the third paragraph
of text related to concessions and (C) the eighth and ninth paragraphs of text related to passive
market making and pricing stabilization, in each case contained in the Time of Sale Prospectus and
the Prospectus, constitute the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Time of Sale Prospectus and the Prospectus.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be
- 22 -
designated in writing by the Managers in the case of parties indemnified pursuant to Section
8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Units or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand in connection with the offering of the Units
shall be deemed to be in the same respective proportions as the net proceeds from the offering of
the Units (before deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters bear to the aggregate initial public offering price of
the Units set forth in the Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand 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 relates to information supplied by the Company or by the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters’ respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective number of Units they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if the
- 23 -
Underwriters were treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by
which the total price at which the Units underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. 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 was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter, any person controlling any
Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Units.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
the New York Stock Exchange or the NASDAQ, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall have occurred, (iv)
any moratorium on commercial banking activities shall have been declared by Federal or New York
State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or
any change in financial markets or any calamity or crisis that, in your judgment, is material and
adverse and which, singly or together with any other event specified in this clause (v), makes it,
in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the
Units on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Units that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Units which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Units to be purchased on such date, the other Underwriters shall be obligated
- 24 -
severally in the proportions that the number of Firm Units set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Units set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Units which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Units that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount
in excess of one-ninth of such number of Units without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Units and the aggregate number of Firm Units with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Units to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such Firm Units are not made within 36
hours after such default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven days, in order that
the required changes, if any, in the Registration Statement, the Time of Sale Prospectus or the
Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Units and the
aggregate number of Additional Units with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Units to be purchased on such Option Closing Date,
the non-defaulting Underwriters shall have the option to (i) terminate their obligations hereunder
to purchase the Additional Units to be sold on such Option Closing Date or (ii) purchase not less
than the number of Additional Units that such non-defaulting Underwriters would have been obligated
to purchase in the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
Notwithstanding the foregoing, if this Agreement is terminated (i) pursuant to Section 9 because of
the occurrence of any event specified therein (other than as specified in Section 9(ii)), the
Company shall not be obligated to reimburse the Underwriters for any expenses specified in the
immediately preceding sentence or (ii) pursuant to this Section 10 by reason of the default of one
or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Units, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Units.
- 25 -
(b) The Company acknowledges that in connection with the offering of the Units: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Units.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I hereto.
- 26 -
| Very truly yours, COPANO ENERGY, L.L.C. |
||||
| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
Underwriting Agreement Signature Page
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXX FARGO SECURITIES, LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXX FARGO SECURITIES, LLC
Acting severally on behalf of themselves
and the several Underwriters named
in Schedule II hereto.
and the several Underwriters named
in Schedule II hereto.
By:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By:
|
/s/ Xxxxx X. Xxxxxx
|
|||
| Title: Executive Director | ||||
By:
|
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated | |||
By:
|
/s/ Xxxxx XxXxxxx
|
|||
| Name: Xxxxx XxXxxxx | ||||
| Title: Managing Director | ||||
By:
|
Xxxxx Fargo Securities, LLC | |||
By:
|
/s/ Xxxxx Xxxxxx
|
|||
| Name: Xxxxx Xxxxxx | ||||
| Title: Director |
Underwriting Agreement Signature Page
SCHEDULE I
Managers:
|
Xxxxxx Xxxxxxx & Co.
Incorporated Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxx Fargo Securities, LLC |
|
Registration Statement File No.:
|
333-162821 | |
Time of Sale Prospectus
|
1. Base Prospectus dated November 2, 2009 relating to the Shelf Securities, including the Units. | |
| 2. The preliminary prospectus supplement dated March 2, 2010 relating to the Units. | ||
| 3. Information included in Schedule IV hereto. | ||
Lock-Up Restricted Period:
|
March 3, 2010 through May 2, 2010 | |
Title of Units to be Purchased:
|
Common units representing limited liability company interests | |
Number of Firm Units:
|
6,475,000 | |
Number of Additional Units
|
971,250 | |
Purchase Price:
|
$22.13 | |
Initial Public Offering Price:
|
$23.10 | |
Selling Concession:
|
$0.582 | |
Reallowance:
|
None | |
Closing Date and Time:
|
March 8, 2010 at 9:00 a.m., Houston Time | |
Closing Location:
|
Xxxxxx & Xxxxxx L.L.P. | |
| 2500 First City Tower | ||
| 0000 Xxxxxx | ||
| Xxxxxxx, Xxxxx 00000 | ||
Address for Notices to Underwriters:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |
| 0000 Xxxxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated | ||
| Xxx Xxxxxx Xxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Xxxxx Fargo Securities, LLC | ||
| 000 Xxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
Address for Notices to the Company:
|
Copano Energy, L.L.C. | |
| 0000 Xxxxx Xxxxxxx, Xxxxx 0000 | ||
| Xxxxxxx, Xxxxx 00000 |
Schedule I
SCHEDULE II
| Number of Firm Units To | ||||
| Underwriter | Be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
1,748,250 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
1,456,875 | |||
Xxxxx Fargo Securities, LLC |
1,456,875 | |||
Barclays Capital Inc. |
550,375 | |||
X.X. Xxxxxx Securities Inc. |
550,375 | |||
RBC Capital Markets Corporation |
550,375 | |||
Ladenburg Xxxxxxxx & Co. Inc. |
161,875 | |||
Total |
6,475,000 | |||
Schedule II
SCHEDULE III
SUBSIDIARIES
| Jurisdiction of | ||
| Name | Formation | |
Alamo Creek Properties, L.L.C.
|
Delaware | |
Big Horn Gas Gathering, L.L.C. (51% limited liability company
interest)
|
Delaware | |
Cimmarron Gathering, LP
|
Texas | |
CMW Energy Services, L.L.C.
|
Delaware | |
Copano Energy Finance Corporation
|
Delaware | |
Copano Energy Services/Texas Gulf Coast, L.P.
|
Texas | |
Copano Energy Services/Upper Gulf Coast, L.P.
|
Texas | |
Copano Field Facilities/Rocky Mountains, LLC
|
Delaware | |
Copano Field Services/Agua Dulce, L.P.
|
Texas | |
Copano Field Services/Central Gulf Coast, L.P.
|
Texas | |
Copano Field Services/Xxxxxx, X.X.
|
Texas | |
Copano Field Services/Live Oak, L.P.
|
Texas | |
Copano Field Services/North Texas, L.L.C.
|
Delaware | |
Copano Field Services/Rocky Mountains, LLC
|
Delaware | |
Copano Field Services/South Texas, L.P.
|
Texas | |
Copano Field Services/Upper Gulf Coast, L.P.
|
Texas | |
Copano NGL Services, L.P.
|
Texas | |
Copano NGL Services (Markham), L.L.C.
|
Delaware | |
Copano Pipelines/Hebbronville, L.P.
|
Texas | |
Copano Pipelines/North Texas, L.L.C.
|
Delaware | |
Copano Pipelines/Rocky Mountains, LLC
|
Delaware | |
Copano Pipelines/South Texas, L.P.
|
Texas | |
Copano Pipelines/Texas Gulf Coast, LLC
|
Delaware | |
Copano Pipelines/TGC, L.P.
|
Texas | |
Copano Pipelines/Upper Gulf Coast, L.P.
|
Texas | |
Copano Pipelines/Victoria, L.L.C.
|
Delaware | |
Copano Processing/Louisiana, LLC
|
Oklahoma | |
Copano Processing, L.P.
|
Texas | |
Copano Risk Management, L.P.
|
Texas | |
Copano/Xxxx-Xxxxx Pipeline, L.P.
|
Delaware | |
CPNO Services, L.P.
|
Texas | |
Fort Union Gas Gathering, L.L.C. (37.04% limited liability
company interest)
|
Delaware | |
Greenwood Gathering, L.L.C.
|
Delaware | |
River View Pipelines, L.L.C.
|
Delaware | |
ScissorTail Energy, LLC
|
Delaware | |
Southern Dome, LLC (majority limited liability company interest)
|
Delaware | |
Xxxx/Duval Gathers (62.5% partnership interest)
|
Texas |
Schedule III
SCHEDULE IV
Pricing Information:
Number of Units:
|
6,475,000 Firm Units or, if the Underwriters exercise in full their option to purchase 971,250 additional Units pursuant to Section 2 hereof, 7,446,250 Units. | |
Public Offering Price:
|
$23.10 per Unit. |
III-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
________, 2010
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Fargo Securities, LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Fargo Securities, LLC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated and Xxxxx Fargo Securities, LLC (the “Managers”) propose to enter into an
Underwriting Agreement (the “Underwriting Agreement”) with Copano Energy, L.L.C., a Delaware
limited liability company (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters, including the Managers (the “Underwriters”), of 6,475,000
common units representing limited liability company interests (the “Units”) in the Company (the
“Common Units”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of the Managers, on behalf of the Underwriters, he or she will not, during
the period commencing on the date hereof and ending 60 days after the date of the final prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or
establish a put equivalent position or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect
to, any Common Units or any securities convertible into or exercisable or exchangeable for Common
Units, (2) enter into any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Common Units, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common Units or such other
securities, in cash or otherwise, or (3) publicly announce an intention to effect any transaction
specified in clause (1) or (2). The foregoing sentence shall not apply to (a) transactions
relating to the Common Units or other securities acquired in open market transactions after the
completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act
shall be required or shall be voluntarily made in connection with subsequent sales of Common Units
or other securities acquired in such open market transactions, (b) transfers of Common Units or any
security convertible into Common Units as a bona fide gift; provided that in the case of any
transfer pursuant to clause (b), (i) each donee shall sign and deliver a lock-up letter
substantially in the form of this letter and (ii) no filing under Section 16(a) of the Exchange
Act, reporting a reduction in beneficial ownership of
A - 1
EXHIBIT A
the Common Units, shall be required or shall be voluntarily made during the restricted period
referred to in the foregoing sentence, (c) dispositions to any trust for the direct or indirect
benefit of the undersigned and/or the immediate family of the undersigned, provided that such trust
agrees in writing with the Underwriters to be bound by the terms of this letter and further
provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be
voluntarily made during the 60-day restricted period, (d) exercises of options to purchase Common
Units issued to the undersigned pursuant to employee benefits plans, qualified unit option plans
and other employee compensation plans described in the Registration Statement (as defined in the
Underwriting Agreement) (excluding the exhibits thereto), the Time of Sale Prospectus (as defined
in the Underwriting Agreement) and the Prospectus and held by the undersigned as of the date
hereof, (e) the establishment of a trading plan pursuant to Rule 10b5-1 (each, a “10b5-1 Plan”)
under the Exchange Act for the transfer of the Common Units, provided that such plan does not
provide for the transfer of Common Units during the restricted period, (f) the transfer of Common
Units pursuant to existing 10b5-1 Plans outstanding on the date hereof, (g) pledges existing on the
date hereof and transfers pursuant to pledges existing on the date hereof or (h) dispositions to
the Company of Common Units necessary to satisfy tax withholding obligations due upon the receipt
or vesting of an award of Common Units under the LTIP (as defined in the Underwriting Agreement).
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Units in connection with the filing of a registration statement relating to
the Public Offering and agrees that, without the prior written consent of the Managers, on behalf
of the Underwriters, he or she will not, during the period commencing on the date hereof and ending
60 days after the date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any Common Units or any security convertible into or exercisable or
exchangeable for Common Units or warrants or other rights to purchase Common Units or any such
securities. The undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of the undersigned’s Common
Units except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
If (i) the Company notifies you in writing that it does not intend to proceed with the Public
Offering or (ii) for any reason the Underwriting Agreement shall be terminated prior to the Time of
Sale (as defined in the Underwriting Agreement), this lock-up letter shall be terminated and the
undersigned shall be released from his or her obligations hereunder.
A - 2
EXHIBIT A
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
| Very truly yours, | ||||
A - 3
EXHIBIT A-1
List of Parties to Execute Lock-Up Letters
| Name | Position | |
1. Copano Partners Trust
|
Delaware statutory trust | |
2. R. Xxxxx Xxxxxxxxx
|
President and Chief Executive Officer | |
3. Xxxxxx Xxxxxxxx
|
Senior Vice President; President and Chief Operating Officer, Oklahoma | |
4. Xxxx Xxxxxxx
|
Senior Vice President, Controller and Principal Accounting Officer | |
5. Xxxxxxx X. Xxxxxx
|
Executive Vice President, General Counsel and Secretary | |
6. Xxxx X. Xxxx
|
Senior Vice President and Chief Financial Officer | |
7. Xxxx X. Xxxxx
|
Executive Vice President; President and Chief Operating Officer, Rocky Mountains | |
8. Xxxxx X. Xxxxx
|
Director | |
9. Xxxxx X. Xxxxxx
|
Director | |
10. Xxxxx X. Xxxxxxxxx
|
Director | |
11. Xxxxxxx X. Xxxxxxx
|
Director | |
12. T. Xxxxxxx Xxxxxx
|
Director | |
13. Xxxxxxx X. Xxxxxxx
|
Director |
A-1 - 1
EXHIBIT B
OPINION OF XXXXXX & XXXXXX L.L.P.
(a) Formation and Qualification of Copano Group. Each of (i) Copano Energy, L.L.C., a
Delaware limited liability company (the “Company”), (ii) Copano Pipelines Group, L.L.C., a Delaware
limited liability company (“CPG”), (iii) Copano/Xxxx-Xxxxx Pipeline GP, L.L.C., a Delaware limited
liability company (“CWDPL”), (iv) CWDPL LP Holdings, L.L.C., a Delaware limited liability company
(“CWDPL Holdings”), (v) Copano Houston Central, L.L.C., a Delaware limited liability company
(“CHC”), (vi) Copano Energy/Mid-Continent, L.L.C., a Delaware limited liability company
(“Mid-Continent”), and (vii) Copano Energy/Rocky Mountains, L.L.C., a Delaware limited liability
company (“Rocky Mountains”) (the Company, CPG, CHC, CWDPL, CWDPL Holdings, Mid-Continent and Rocky
Mountains, the “Copano Group”), has been duly formed and is validly existing as a limited liability
company in good standing under the laws of its jurisdiction of formation with all limited liability
company power and authority necessary to own or lease its properties and to conduct its business,
in each case in all material respects as described in the Registration Statement, the Time of Sale
Prospectus and the Prospectus. Each member of the Copano Group is duly registered or qualified to
do business and is in good standing as a foreign limited liability company in each jurisdiction set
forth under its name on Appendix 1 to this opinion letter.
(b) Ownership of the Copano Group. Except as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, the Company owns 100% of the limited liability
company interests of each of CPG, CHC, CWDPL, CWDPL Holdings, Mid-Continent and Rocky Mountains.
All such limited liability company interests (including the common units representing limited
liability company interests in the Company) have been duly authorized and validly issued in
accordance with the applicable limited liability company agreements of the Copano Group (the
“Copano Group Operating Agreements”) and are fully paid (to the extent required under the
applicable Copano Group Operating Agreements) and non-assessable (except as such nonassessability
may be affected by Section 18-607 of the Delaware LLC Act); and all such interests are owned free
and clear of all liens, encumbrances (except restrictions on transferability as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus), security interests,
equities, charges and other claims (other than those arising under the Credit Agreement or the Fort
Union Credit Agreement) (i) in respect of which a financing statement under the Uniform Commercial
Code of the State of Delaware naming the Company is on file as of a recent date in the office of
the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the Delaware LLC Act.
(c) Valid Issuance of the Units. The Units to be issued and sold to the Underwriters
by the Company pursuant to this Agreement and the limited liability company interests represented
thereby have been duly authorized in accordance with the Limited Liability Company Agreement and,
when issued and delivered against payment therefor in accordance with this Agreement, will be
validly issued, fully paid (to the extent required under the Limited Liability Company Agreement)
and non-assessable (except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act).
B - 1
EXHIBIT B
(d) No Preemptive Rights, Registration Rights or Options. Except as described in the
Registration Statement (excluding exhibits thereto), the Time of Sale Prospectus and the
Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any equity securities in any member of the Copano Group
pursuant to the any of the Copano Group Operating Agreements or any agreement or other instrument
filed as an exhibit to the Registration Statement. To the knowledge of such counsel, neither the
filing of the Registration Statement nor the offering or sale of the Units as contemplated by this
Agreement gives rise to any rights relating to the registration of any Units or other securities of
the Company other than as have been waived. To the knowledge of such counsel, except as described
in the Registration Statement (excluding exhibits thereto), the Time of Sale Prospectus and the
Prospectus and except for options granted pursuant to the Company’s employee benefit or other
compensation plans, there are no outstanding options or warrants to purchase any membership or
partnership interests in or capital stock of any of the other Copano Entities.
(e) Authority. The Company has all requisite limited liability company power and
authority to issue, sell and deliver the Units, in accordance with and upon the terms and
conditions set forth in this Agreement and the Limited Liability Company Agreement.
(f) Authorization, Execution and Delivery of Agreement. This Agreement has been duly
authorized and validly executed and delivered by the Company.
(g) Enforceability of Copano Group Operating Agreements. Each of the Copano Group
Operating Agreements has been duly authorized, executed and delivered by the respective member of
the Copano Group that is a party thereto, as applicable, and is a valid and legally binding
agreement of the respective member of the Copano Group that is a party thereto, enforceable against
the respective member of the Copano Group that is a party thereto in accordance with their
respective terms; provided that the enforceability thereof may be limited by (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws from
time-to-time in effect relating to or affecting creditors’ rights and remedies generally and by
general principles of equity (regardless of whether such principles are considered in a proceeding
in equity or at law) and (ii) public policy, applicable law relating to fiduciary duties,
indemnification and contribution and an implied covenant of good faith and fair dealing.
(h) Effectiveness of Registration Statement. The Registration Statement has become
effective under the Securities Act and, to the knowledge of such counsel, no stop order proceedings
with respect thereto are pending or threatened under the Securities Act, and any required filing of
the Prospectus and any supplement thereto pursuant to Rule 424 or Rule 430B under the Securities
Act has been made in the manner and within the time period required by such Rule 424 and in
compliance with Rule 430B under the Securities Act.
(i) Form of Documents. The Registration Statement, the Time of Sale Prospectus and
the Prospectus (except as to the financial statements and the notes and schedules thereto, and
other financial data and statistical data derived from financial data, contained in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, as to which such counsel
expresses no opinion) appear on their face to comply as to form in all material respects with the
B - 2
EXHIBIT B
requirements of the Securities Act (including, in the case of the Prospectus, Section 10(a) of
the Securities Act). Each Incorporated Document, at the time such document was filed with the
Commission or at the time such document became effective, as applicable, appeared on its face to
comply as to form in all material respects with the requirements of the Exchange Act (except as to
the financial statements and the notes and schedules, and other financial data and statistical data
derived from financial data, contained in such document, as to which such counsel expresses no
opinion).
(j) No Conflicts. None of the offering, issuance and sale by the Company of the
Units, the execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby will conflict with, result in a breach or violation (and no event
has occurred that, with notice or lapse of time or otherwise, would constitute such an event) or
imposition of any lien, charge or encumbrance upon any property or assets of the Copano Group
pursuant to (i) the applicable Copano Group Operating Agreements, (ii) any other agreement, lease
or other instrument filed as an exhibit to the Registration Statement or any document incorporated
by reference in the Time of Sale Prospectus or the Prospectus or (iii) the Delaware LLC Act or
federal law, which breaches, violations, defaults or liens, in the case of clause (ii) or (iii),
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
provided that no opinion is expressed pursuant to this paragraph with respect to federal or state
securities laws or other anti-fraud laws.
(k) No Consents. No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having jurisdiction over any of the
Copano Group or any of their respective properties is required in connection with the offering,
issuance and sale by the Company of the Units, the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions contemplated
hereby, except (i) for such consents required under the Securities Act, the Exchange Act and state
securities or “Blue Sky” laws, as to which such counsel need not express any opinion, (ii) for such
consents that have been obtained or made, (iii) for such consents which, if not obtained, could not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (iv)
as disclosed in the Registration Statement (excluding exhibits thereto), the Time of Sale
Prospectus and the Prospectus.
(l) Descriptions and Summaries. The statements and descriptions in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, as applicable (including any
Incorporated Documents), under the captions “The Offering,” (excluding Use of Proceeds)
“Description of Our Common Units,” “Cash Distribution Policy,” “Material Tax Consequences,”
“Business—Regulation,” “Business—Environmental Matters,” and “Certain Relationships and Related
Transactions,” insofar as such statements or descriptions constitute descriptions of contracts or
refer to statements of law or legal conclusions, are accurate in all material respects; and the
Common Units conform in all material respects to the descriptions thereof contained therein.
(m) Legal Proceedings or Contracts to be Described or Filed. To the knowledge of such
counsel after due inquiry, except as described in the Registration Statement (excluding exhibits
thereto), the Time of Sale Prospectus and the Prospectus, (i) there are no legal or governmental
proceedings pending or threatened to which any of the Copano Entities is a party,
B - 3
EXHIBIT B
or to which any of their respective properties is subject, that are required to be described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus but are not so
described as required, and (ii) there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement, the Final Prospectus
and the Prospectus or to be filed as exhibits to the Registration Statement by the Securities Act
that are not described or filed as required.
(n) Tax Opinion. The opinion of Xxxxxx & Xxxxxx L.L.P. that is filed as Exhibit 8.1
to the Registration Statement is confirmed and the Underwriters may rely upon such opinion as if it
were addressed to them.
(o) Investment Company. None of the Copano Entities is (i) an “investment company” as
such term is defined in the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that they have participated in conferences with officers
and other representatives of the Company, representatives of the registered independent public
accounting firm of the Company and representatives of the Underwriters at which the contents of the
Time of Sale Prospectus and the Prospectus and related matters were discussed, and although such
counsel did not independently verify, is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Time of Sale Prospectus or the Prospectus (except to the extent specified in
paragraph (l) above), on the basis of the foregoing, no facts have come to the attention of such
counsel that lead them to believe that (i) the Registration Statement, as of its effective time,
contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as
of its date and as of the Closing Date and any Option Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading or (iii) the Time of Sale Prospectus, as of the Time of Sale and any additional Time of
Sale, included or includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case other than (i) the financial statements
included therein, including the notes and schedules thereto and auditors’ reports thereon, and (ii)
the other financial data and statistical data derived from financial data included therein, as to
which such counsel need express no belief).
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Copano Entities and upon information obtained from
public officials, (B) assume that all documents submitted to them as originals are authentic, that
all copies submitted to them conform to the originals thereof, and that the signatures on all
documents examined by them are genuine, (C) state that their opinion is limited to federal laws,
the Delaware LLC Act and the laws of the State of New York (D) with respect to the opinions
expressed in paragraph (a) above as to the due qualification or registration as a foreign limited
liability company, as the case may be, of the Copano Group, state that such opinions are based upon
certificates of foreign qualification or registration provided by the Secretary of State of the
states listed on Appendix 1 (each of which will be dated not more than fourteen days prior
to the Closing Date and any Option Closing Date, and shall be provided to the Underwriters), (E)
state
B - 4
EXHIBIT B
that they express no opinion with respect to any permits to own or operate any real or
personal property, (F) state that they express no opinion with respect to the accuracy or
descriptions of real or personal property and (G) state that they express no opinion with respect
to state or local taxes or tax statutes to which any of the Copano Entities may be subject.
[Insert Appendix 1 listing foreign qualifications of the Copano Group]
B - 5
EXHIBIT C
OPINION OF XXXXXXX X. XXXXXX
(a) Formation and Qualification of the Copano Entities. Each of the subsidiaries
listed in Appendix 1 (the “Copano Entities”) to this opinion letter has been duly formed
and is validly existing as a limited partnership, limited liability company or corporation, as the
case may be, in good standing under the laws of its jurisdiction of formation and with all limited
partnership, limited liability company or corporate, as the case may be, power and authority
necessary to own or lease its properties and to conduct its business, in each case in all material
respects as described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus. Each of the Copano Entities is duly registered or qualified to do business and is in
good standing as a foreign limited partnership, limited liability company or corporation, as the
case may be, in each jurisdiction set forth under its name on Appendix 1 to this opinion
letter.
(b) Ownership of the Subsidiaries. The Company directly or indirectly owns of record
100% of the limited liability company interests, limited partnership interests or capital stock, as
the case may be, of each of the Copano Entities (excluding (i) Xxxx/Xxxxx Gatherers, a Texas
general partnership (“Xxxx/Xxxxx”), as to which the Company owns a 62.5% partnership interest, (ii)
Southern Dome L.L.C., a Delaware limited liability company (“Southern Dome”), as to which the
Company owns a majority limited liability company interest, (iii) Bighorn Gas Gathering L.L.C., a
Delaware limited liability company (“Bighorn”), as to which the Company owns a 51% membership
interest, and (iv) Fort Union Gas Gathering, L.L.C., a Delaware limited liability company (“Fort
Union”), as to which the Company owns a 37.04% membership interest). All such limited liability
company interests, limited partnership interests or capital stock, as the case may be, has been
duly authorized and validly issued in accordance with the limited liability company agreements,
limited partnership agreements or articles of incorporation and bylaws, as the case may be, of such
entity and are fully paid (to the extent required under their respective limited liability company
agreements or limited partnership agreements) and non-assessable (except as such nonassessability
may be affected by: (A) Section 18-607 of the Delaware LLC Act, in the case of a Delaware limited
liability company, (B) Section 17-607 of the Delaware LP Act, in the case of a Delaware limited
partnership, (C) Sections 3.03, 5.02 and 6.07 of the Texas LP Act, in the case of a Texas limited
partnership, (D) Section 5.09 of the Texas LLC Act, in the case of a Texas limited liability
company or (E) Section 2031 of the Oklahoma Limited Liability Company Act, in the case of an
Oklahoma limited liability company); and all such interests are owned free and clear of all liens,
encumbrances (except restrictions on transferability as described in the Registration Statement,
the Time of Sale Prospectus or the Prospectus or, in the case of Xxxx/Xxxxx, Southern Dome, Bighorn
and Fort Union, as set forth in its partnership agreement or limited liability agreement, as the
case may be), security interests, equities, charges and other claims (other than those arising
under the Credit Agreement or the Fort Union Credit Agreement).
(c) No Conflicts. None of the offering, issuance and sale by the Company of the
Units, the execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby will conflict with, result in a breach or violation (and no event
has occurred that, with notice or lapse of time or otherwise, would constitute such an event) or
imposition of any lien, charge or encumbrance upon any property or assets of any of the Copano
Entities pursuant to (i) the applicable Operating Agreement of any of the Copano Entities,
C - 1
EXHIBIT C
(ii) any other agreement, lease or other instrument filed as an exhibit to the Registration
Statement or any document incorporated by reference in the Time of Sale Prospectus or the
Prospectus (other than liens created under the Credit Agreement or the Fort Union Credit Agreement)
or (iii) to the knowledge of such counsel, any order, judgment, decree or injunction of any
federal, Texas or Delaware court or government agency or body having jurisdiction over any of the
Copano Entities or any of their properties in a proceeding to which any of them or their property
is a party, which breaches, violations, defaults or liens, in the case of clause (ii) or (iii),
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
provided, however, that no opinion is expressed pursuant to this paragraph (c) with respect to
federal or state securities laws or other anti-fraud laws.
In addition, such counsel shall state that he has participated in conferences with officers
and other representatives of the Company, representatives of the independent registered public
accounting firm for the Company and representatives of the Underwriters at which the contents of
the Time of Sale Prospectus and the Prospectus and related matters were discussed, and although
such counsel did not independently verify, is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Time of Sale Prospectus or the Prospectus, on the basis of the
foregoing, no facts have come to the attention of such counsel that lead him to believe that (i)
the Registration Statement, as of its effective time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Prospectus, as of its date and as of the Closing Date
and any Option Closing Date, included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading or (iii) the Time of Sale
Prospectus, as of the Time of Sale and any additional Time of Sale, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading (in each case other than (i) the financial statements included therein, including the
notes and schedules thereto and auditors’ reports thereon, and (ii) the other financial data and
statistical data derived from financial data included therein, as to which such counsel need
express no belief).
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Copano Entities and upon information obtained from
public officials, (B) assume that all documents submitted to him as originals are authentic, that
all copies submitted to him conform to the originals thereof, and that the signatures on all
documents examined by him are genuine, (C) state that his opinion is limited to federal laws, the
Delaware LP Act, the Delaware LLC Act, the Delaware General Corporation Law, the Texas LP Act and
the Texas LLC Act, and (D) state that he expresses no opinion with respect to state or local taxes
or tax statutes to which any of the members of the Company or any of the Copano Entities may be
subject.
[Insert Appendix 1 listing foreign qualifications of Copano Entities]
C - 2
EXHIBIT D
| General Partner | Limited Partnerships | |
Copano/Xxxx-Xxxxx Pipeline GP, L.L.C.
|
Copano/Xxxx-Xxxxx Pipeline, L.P. | |
Copano Field Services/Central Gulf Coast
GP, L.L.C.
|
Copano Field Services/Central Gulf Coast, L.P. | |
Copano Field Services GP, L.L.C.
|
Copano Field Services/Copano Bay, L.P. | |
| Copano Field Services/South Texas, L.P. | ||
| Copano Field Services/Agua Dulce, L.P. | ||
| Copano Field Services/Upper Gulf Coast, L.P. | ||
| Copano Field Services/Live Oak, L.P. | ||
| Copano Field Services/Xxxxxx, X.X. | ||
Copano Pipelines GP, L.L.C.
|
Copano Pipelines/South Texas, L.P. | |
| Copano Pipelines/Upper Gulf Coast, L.P. | ||
| Copano Pipelines/Hebbronville, L.P. | ||
Copano Pipelines (Texas) GP, L.L.C.
|
Copano Pipelines/Texas Gulf Coast, L.P. | |
Copano Energy Services GP, L.L.C.
|
Copano Energy Services/Upper Gulf Coast, L.P. | |
Copano Energy Services (Texas) GP, L.L.C.
|
Copano Energy Services/TGC, L.P. | |
Copano NGL Services GP, L.L.C.
|
Copano NGL Services, L.P. | |
Copano Processing GP, L.L.C.
|
Copano Processing, L.P. | |
Copano/Red River Gathering GP, L.L.C.
|
Cimmarron Gathering, LP | |
CPNO Services GP, L.L.C.
|
CPNO Services, L.P. | |
| Copano Risk Management, L.P. |
D-1
