UNIT PURCHASE AGREEMENT by and between BOARDWALK PIPELINE PARTNERS, LP and BOARDWALK PIPELINES HOLDING CORP.
Exhibit
10.1
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by
and between
and
BOARDWALK
PIPELINES HOLDING CORP.
TABLE
OF CONTENTS
ARTICLE I
DEFINITIONS
1
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Section
1.1
Definitions...................................................................................................................................................................................................................................................................1
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ARTICLE II AGREEMENT
TO SELL AND
PURCHASE 4
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Section
2.1 Sale and
Purchase.....................................................................................................................................................................................................................................................
4
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Section
2.2
Closing.........................................................................................................................................................................................................................................................................4
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Section
2.3 Mutual
Conditions.....................................................................................................................................................................................................................................................4
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Section
2.4 The Purchaser’s
Conditions......................................................................................................................................................................................................................................5
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Section
2.5 Boardwalk’s
Conditions............................................................................................................................................................................................................................................5
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Section
2.6 Boardwalk
Deliveries.................................................................................................................................................................................................................................................5
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Section
2.7 Purchaser
Deliveries..................................................................................................................................................................................................................................................6
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
BOARDWALK 7
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Section
3.1 Existence......................................................................................................................................................................................................................................................................7
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Section
3.2 No
Conflict..................................................................................................................................................................................................................................................................7
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Section
3.3 No
Default...................................................................................................................................................................................................................................................................8
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Section
3.4
Authority.....................................................................................................................................................................................................................................................................8
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Section
3.5 Due
Authorization......................................................................................................................................................................................................................................................8
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Section
3.7 No Preemptive or Registration
Rights.....................................................................................................................................................................................................................9
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Section
3.8 Periodic
Reports..........................................................................................................................................................................................................................................................9
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Section
3.9
Litigation......................................................................................................................................................................................................................................................................9
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Section
3.10 Certain
Fees.................................................................................................................................................................................................................................................................9
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Section
3.11 No Side
Agreements..................................................................................................................................................................................................................................................9
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Section
3.12 No
Registration.........................................................................................................................................................................................................................................................10
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Section
3.13 No
Integration...........................................................................................................................................................................................................................................................10
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ARTICLE IV REPRESENTATIONS
AND WARRANTIES OF THE
PURCHASER 10
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Section
4.1
Existence.....................................................................................................................................................................................................................................................................10
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Section
4.2 Authorization,
Enforceability..................................................................................................................................................................................................................................10
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Section
4.3 No
Breach...................................................................................................................................................................................................................................................................10
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Section
4.4 Certain
Fees................................................................................................................................................................................................................................................................11
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Section
4.5 No Side
Agreements.................................................................................................................................................................................................................................................11
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Section
4.6
Investment..................................................................................................................................................................................................................................................................11
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Section
4.7 Nature of
Purchaser...................................................................................................................................................................................................................................................11
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Section
4.8 Restricted
Securities..................................................................................................................................................................................................................................................11
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Section
4.9
Legend.........................................................................................................................................................................................................................................................................12
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i
ARTICLE V
COVENANTS
12
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Section
5.2 Payment of
Expenses..............................................................................................................................................................................................................................................12
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ARTICLE VI
MISCELLANEOUS
12
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Section
6.1 Interpretation and Survival of
Provisions...........................................................................................................................................................................................................12
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Section
6.2 Survival of
Provisions............................................................................................................................................................................................................................................13
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Section
6.3 No Waiver; Modifications in
Writing..................................................................................................................................................................................................................13
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Section
6.4 Binding Effect;
Assignment..................................................................................................................................................................................................................................13
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Section
6.5
Communications......................................................................................................................................................................................................................................................14
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Section
6.6 Removal of
Legend.................................................................................................................................................................................................................................................14
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Section
6.7 Entire
Agreement....................................................................................................................................................................................................................................................14
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Section
6.8 Governing
Law........................................................................................................................................................................................................................................................15
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Section
6.9 Execution in
Counterparts.....................................................................................................................................................................................................................................15
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Section
6.10 Termination..............................................................................................................................................................................................................................................................15
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Section
6.11 Recapitalization, Exchanges, Etc. Affecting the
Units......................................................................................................................................................................................15
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ii
This UNIT
PURCHASE AGREEMENT, dated as of June 23, 2009 (this “Agreement”), is by
and between BOARDWALK PIPELINE PARTNERS, LP, a Delaware limited partnership
(“Boardwalk”),
and BOARDWALK PIPELINES HOLDING CORP., a Delaware corporation (the “Purchaser”).
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions
. Capitalized
terms used but not defined herein have the meanings assigned to such terms in
the Partnership Agreement (as hereinafter defined). As used in this
Agreement, and unless the context requires a different meaning, the following
terms have the meanings indicated:
“Affiliate” means,
with respect to any Person, any other Person that directly or indirectly through
one or more intermediaries controls, is controlled by or is under common control
with, the Person in question. As used herein, the term “control” means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
“Agreement” has the
meaning set forth in the introductory paragraph.
“BGL” means Boardwalk
GP, LLC, a Delaware limited liability company.
“Boardwalk” has the
meaning set forth in the introductory paragraph.
“Boardwalk Entity”
means Boardwalk and its Subsidiaries.
1
“Business Day” means
Monday through Friday of each week, except that a legal holiday recognized as
such by the government of the United States of America or the State of Kentucky
shall not be regarded as a Business Day.
“Closing” has the
meaning specified in Section
2.2.
“Closing Date” has the
meaning specified in Section
2.2.
“Commission” means the
United States Securities and Exchange Commission.
“Common Units” means
the common units representing limited partner interests in
Boardwalk.
“Delaware LP Act” has
the meaning specified in Section
3.1.
“Delaware LLC Act” has
the meaning specified in Section
3.1.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time, and the rules
and regulations of the Commission promulgated thereunder.
“General Partner”
means Boardwalk GP, LP, a Delaware limited partnership.
“Governmental
Authority” means, with respect to a particular Person, any country,
state, county, city and political subdivision in which such Person or such
Person’s Property is located or that exercises valid jurisdiction over any such
Person or such Person’s Property, and any court, agency, department, commission,
board, bureau or instrumentality of any of them and any monetary authority that
exercises valid jurisdiction over any such Person or such Person’s
Property. Unless otherwise specified, all references to Governmental
Authority herein with respect to Boardwalk means a Governmental Authority having
jurisdiction over Boardwalk, its Subsidiaries or any of their respective
Properties.
“Law” means any
federal, state, local or foreign order, writ, injunction, judgment, settlement,
award, decree, statute, law, rule or regulation.
“Lien” means any
interest in Property securing an obligation owed to, or a claim by, a Person
other than the owner of the Property, whether such interest is based on the
common law, statute or contract, and whether such obligation or claim is fixed
or contingent, and including but not limited to the lien or security interest
arising from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purpose of this Agreement, a Person shall be deemed
to be the owner of any Property that it has acquired or holds subject to a
conditional sale agreement, or leases under a financing lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person in a transaction intended to create a
financing.
“Material Adverse
Effect” has the meaning specified in Section
3.1.
“NYSE” means The New
York Stock Exchange, Inc.
2
“Operative Documents”
means, collectively, this Agreement, the Registration Rights Agreement and any
other agreements or instruments executed and delivered by the Parties on even
date herewith or at the Closing relating to the issuance and sale of the Units,
or any amendments, supplements, continuations or modifications
thereto.
“Partnership
Agreement” means the Third Amended and Restated Agreement of Limited
Partnership of Boardwalk dated June 17, 2008, as amended from time to
time.
“Partnership
Securities” means any class or series of equity interest in Boardwalk
(but excluding any options, rights, warrants and appreciation rights relating to
an equity interest in Boardwalk), including without limitation any Common Units,
Class B Units and Incentive Distribution Rights (as defined in the Partnership
Agreement).
“Person” means an
individual or a corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization, association, government agency or
political subdivision thereof or other entity.
“Property” means any
interest in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible.
“Purchase Price” means
an amount equal to the product of the number of Units multiplied by the Unit
Price.
“Purchaser” has the
meaning set forth in the introductory paragraph.
“Registration Rights
Agreement” means the Second Amended and Restated Registration Rights
Agreement, to be entered into at the Closing, between Boardwalk and the
Purchaser in the form attached hereto as Exhibit
A.
“Representatives” of
any Person means the officers, directors, managers, employees, agents, counsel,
accountants, investment bankers and other representatives of such
Person.
“Securities Act” means
the Securities Act of 1933, as amended from time to time, and the rules and
regulations of the Commission promulgated thereunder.
“Subsidiary” means,
with respect to any Person, (a) a corporation of which more than 50% of the
voting power of shares entitled (without regard to the occurrence of any
contingency) to vote in the election of directors or other governing body of
such corporation is owned, directly or indirectly, at the date of determination,
by such Person, by one or more Subsidiaries of such Person or a combination
thereof, (b) a partnership (whether general or limited) in which such Person or
a Subsidiary of such Person is, at the date of determination, a general or
limited partner of such partnership, but only if more than 50% of the
partnership interests of such partnership (considering all of the partnership
interests of the partnership as a single class) is owned, directly or
indirectly, at the date of determination, by such Person, by one or more
Subsidiaries of such Person, or a combination thereof, or (c) any other Person
(other than a corporation or a partnership) in which such Person, one or more
Subsidiaries of such Person, or a combination thereof, directly or indirectly,
at the date of determination, has (i) at least a majority ownership interest or
(ii) the power to elect or direct the election of a majority of the directors or
other governing body of such Person.
3
“Unitholders” means
the unitholders of Boardwalk.
“Unit Price” has the
meaning specified in Section
2.1(b).
“Units” has the
meaning set forth in the recitals to this Agreement.
“Waiver and Consent
Agreement” means the Waiver and Consent of Lender, dated as of the date
hereof, between the Purchaser and Boardwalk Pipelines, LP.
ARTICLE
II
AGREEMENT
TO SELL AND PURCHASE
Section
2.1
Sale and
Purchase.
(a) Subject
to the terms and conditions hereof, Boardwalk hereby agrees to issue and sell to
the Purchaser and the Purchaser hereby agrees to purchase from Boardwalk,
6,684,857 Common Units, and the Purchaser agrees to pay Boardwalk the Unit Price
for each Purchased Unit as set forth in paragraph (b) below.
(b) The
amount per Unit the Purchaser will pay to Boardwalk to purchase the Units (the
“Unit Price”)
hereunder shall be $21.99.
Section
2.2
Closing
. Subject
to the terms and conditions hereof, the consummation of the purchase and sale of
the Units hereunder (the “Closing”) shall take
place at the offices of Xxxxxx & Xxxxxx L.L.P., 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx on June 26, 2009 or such other date mutually agreed by
the parties (the date of such closing, the “Closing
Date”).
Section
2.3
Mutual
Conditions
. The
respective obligations of each party to consummate the purchase and issuance and
sale of the Units shall be subject to the satisfaction on or prior to the
Closing Date of each of the following conditions (any or all of which may be
waived by a party on behalf of itself in writing, in whole or in part, to the
extent permitted by applicable Law):
(a) no Law
shall have been enacted or promulgated, and no action shall have been taken, by
any Governmental Authority of competent jurisdiction that temporarily,
preliminarily or permanently restrains, precludes, enjoins or otherwise
prohibits the consummation of the transactions contemplated hereby or makes the
transactions contemplated hereby illegal; and
(b) there
shall not be pending any suit, action or proceeding by any Governmental
Authority seeking to restrain, preclude, enjoin or prohibit the transactions
contemplated by this Agreement.
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Section
2.4
The Purchaser’s
Conditions. The
obligation of the Purchaser to consummate the purchase of the Units shall be
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions (any or all of which may be waived by the Purchaser in
writing, in whole or in part, to the extent permitted by applicable
Law):
(a) Boardwalk
shall have performed and complied with the covenants and agreements contained in
this Agreement that are required to be performed and complied with by Boardwalk
on or prior to the Closing Date;
(b) The
representations and warranties of Boardwalk contained in this Agreement that are
qualified by materiality or a Material Adverse Effect shall be true and correct
when made and as of the Closing Date and all other representations and
warranties of Boardwalk shall be true and correct in all material respects when
made and as of the Closing Date, in each case as though made at and as of the
Closing Date (except that representations made as of a specific date shall be
required to be true and correct as of such date only);
(c) The NYSE
shall have authorized, upon official notice of issuance, the listing of the
Units.
(d) No notice
of delisting from the NYSE shall have been received by Boardwalk with respect to
the Common Units; and
(e) Boardwalk
shall have delivered, or caused to be delivered, to the Purchaser at the
Closing, Boardwalk’s closing deliveries described in Section
2.6.
Section
2.5
Boardwalk’s
Conditions
. The
obligation of Boardwalk to consummate the sale of the Units to the Purchaser
shall be subject to the satisfaction on or prior to the Closing Date of each of
the following conditions with respect to the Purchaser (any or all of which may
be waived by Boardwalk in writing, in whole or in part, to the extent permitted
by applicable Law):
(a) the
representations and warranties of the Purchaser contained in this Agreement that
are qualified by materiality shall be true and correct when made and as of the
Closing Date and all other representations and warranties of the Purchaser shall
be true and correct in all material respects as of the Closing Date (except that
representations of the Purchaser made as of a specific date shall be required to
be true and correct as of such date only);
(b) the
Purchaser shall have delivered, or caused to be delivered, to Boardwalk at the
Closing the Purchaser’s closing deliveries described in Section 2.7;
and
(c) Boardwalk
and the General Partner shall have received an opinion from Xxxxxx & Xxxxxx
L.L.P., legal counsel to Boardwalk, dated as of the Closing, in form and
substance reasonably acceptable to Boardwalk and the General
Partner.
Section
2.6
Boardwalk
Deliveries. At
the Closing, subject to the terms and conditions hereof, Boardwalk will deliver,
or cause to be delivered, to the Purchaser:
5
(a) A
certificate or certificates representing the Units (bearing the legend set forth
in Section 4.9) and
meeting the requirements of the Partnership Agreement, free and clear of any
Liens, other than transfer restrictions under the Partnership Agreement and
applicable federal and state securities laws;
(b) A
certificate of the Secretary of State of the State of Delaware, dated a recent
date, to the effect that Boardwalk is in good standing;
(c) A
cross-receipt executed by Boardwalk and delivered to the Purchaser certifying
that it has received the Purchase Price from the Purchaser as of the Closing
Date;
(d) An
opinion addressed to the Purchaser from Xxxxxx & Xxxxxx L.L.P., legal
counsel to Boardwalk, dated as of the Closing, in form and substance reasonably
acceptable to the Purchaser;
(e) The
Registration Rights Agreement, which shall have been duly executed by
Boardwalk;
(f) A
certificate, dated the Closing Date and signed by the Chief Executive Officer
and the Chief Financial Officer of BGL, in their capacities as such, stating
that:
(i) Boardwalk
has performed and complied with the covenants and agreements contained in this
Agreement that are required to be performed and complied with by Boardwalk on or
prior to the Closing Date; and
(ii) The
representations and warranties of Boardwalk contained in this Agreement that are
qualified by materiality or Material Adverse Effect are true and correct as of
the Closing Date and all other representations and warranties of Boardwalk are
true and correct in all material respects as of the Closing Date (except that
representations made as of a specific date shall be required to be true and
correct as of such date only); and
(g) A
certificate of the Secretary or Assistant Secretary of BGL, on behalf of
Boardwalk, certifying as to (1) the Partnership Agreement, as amended, (2) board
resolutions authorizing the execution and delivery of the Operative Documents
and the consummation of the transactions contemplated thereby, including the
issuance of the Units and (3) its incumbent officers authorized to execute the
Operative Documents, setting forth the name and title and bearing the signatures
of such officers.
Section
2.7
Purchaser
Deliveries. At
the Closing, subject to the terms and conditions hereof, the Purchaser will
deliver, or cause to be delivered, to Boardwalk:
(a) Payment
to Boardwalk of the Purchase Price by wire transfer of immediately available
funds to an account designated by Boardwalk in writing at least two Business
Days prior to the Closing Date;
(b) The
Registration Rights Agreement, which shall have been duly executed by the
Purchaser;
6
(c) A
cross-receipt executed by the Purchaser and delivered to Boardwalk certifying
that it has received the Units as of the Closing Date;
(d) Such
documents and instruments that may be required by the General Partner pursuant
to Section 10.4 of the Partnership Agreement (including a properly completed
Taxation Certification), which shall have been duly executed by the Purchaser;
and
(e) A
certificate from the Purchaser, dated the Closing Date and signed by an
appropriate officer of the Purchaser, in his or her capacity as such, stating
that:
(i) The
Purchaser has performed and complied with the covenants and agreements contained
in this Agreement that are required to be performed and complied with by it on
or prior to the Closing Date; and
(ii) The
representations and warranties of the Purchaser contained in this Agreement that
are qualified by materiality are true and correct as of the Closing Date and all
other representations and warranties of the Purchaser are true and correct in
all material respects as of the Closing Date (except that representations made
as of a specific date shall be required to be true and correct as of such date
only).
(f) A copy of
the Waiver and Consent Agreement executed by the Purchaser.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF BOARDWALK
Boardwalk
represents and warrants to the Purchaser as follows:
Section
3.1 Existence. Each
of the General Partner, BGL and the Boardwalk Entities has been duly formed and
is validly existing and in good standing as a limited partnership under the
Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”) or
a limited liability company under the Delaware Limited Liability Company Act
(the “Delaware LLC
Act”), as applicable, has the full partnership or limited liability
company power and authority necessary to own or hold its properties and assets
and to conduct the businesses in which it is engaged, and is duly registered or
qualified to do business and in good standing as a foreign limited partnership
or limited liability company in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such qualification,
except where the failure to so register or qualify could not reasonably be
expected to (i) have a material adverse effect on the condition (financial
or other), results of operations, securityholders’ equity, properties or
business of the Boardwalk Entities taken as a whole (a “Material Adverse
Effect”) or (ii) subject the limited partners of Boardwalk to any
material liability or disability.
Section
3.2
No
Conflict. Assuming
the Waiver and Consent Agreement is duly executed and delivered by the
Purchaser, none of the offering, issuance and sale by Boardwalk of the Units and
the application of the proceeds therefrom, the execution, delivery and
performance of the Operative Documents by Boardwalk, or the consummation of the
transactions contemplated hereby or thereby (i) conflicts or will conflict
with, or constitutes or will constitute a violation of, the certificate or
agreement of limited partnership, certificate of formation, limited liability
company agreement or other organizational documents of the Boardwalk Entities,
(ii) conflicts or will conflict with, or constitutes or will constitute a
breach or violation of or a default under (or an event that, with notice or
lapse of time or both, would constitute such a breach or violation of or default
under), any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which any of the Boardwalk Entities is a party, by
which any of them is bound or to which any of their respective properties or
assets is subject, (iii) violates or will violate any statute, law,
ordinance, regulation, order, judgment, decree or injunction of any court or
governmental agency or body to which any of the Boardwalk Entities or any of
their respective properties or assets may be subject or (iv) will result in
the creation or imposition of any Lien upon any property or assets of any
Boardwalk Entity which conflicts, breaches, violations, defaults or Liens, in
the case of clauses (ii), (iii) or (iv), would, individually or in the
aggregate, have a Material Adverse Effect.
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Section
3.3
No
Default. None
of the Boardwalk Entities (i) is in violation of its certificate or
agreement of limited partnership, certificate of formation or limited liability
company agreement, or other organizational documents, (ii) is in breach of
or default under any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party, by which it is bound or to which any of its properties
or assets is subject (and no event has occurred that, with notice or lapse of
time or both, would constitute such a breach or default), (iii) is in
violation of any statute, law, ordinance, rule, regulation, order, judgment,
decree or injunction of any court or governmental agency or body to which it or
its property or assets may be subject or (iv) has failed to obtain any
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business, except, in the case of clauses (ii) or (iv), as could not reasonably
be expected to have a Material Adverse Effect.
Section
3.4
Authority. On
the Closing Date, Boardwalk will have all requisite 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 Partnership
Agreement. On the Closing Date, all corporate, partnership or limited
liability company action, as the case may be, required to be taken by the
General Partner, BGL and Boardwalk for the authorization, issuance, sale and
delivery of the Units, the execution and delivery of the Operative Documents and
the consummation of the transactions contemplated hereby and thereby shall have
been validly taken.
Section
3.5
Due
Authorization. Each
of the Operative Documents has been duly and validly authorized and has been or,
with respect to the Operative Documents to be delivered at the Closing Date,
will be, validly executed and delivered by Boardwalk and constitutes, or will
constitute, the legal, valid and binding obligations of Boardwalk, enforceable
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer and similar laws affecting
creditors’ rights generally or by general principles of equity, including
principles of commercial reasonableness, fair dealing and good
faith.
Section
3.6
Valid
Issuance. The
Units to be issued and sold by Boardwalk to the Purchaser hereunder have been
duly authorized in accordance with the Partnership Agreement and, when issued
and delivered against payment therefor pursuant to this Agreement, will be
validly issued in accordance with the Partnership Agreement, fully paid (to the
extent required under the Partnership Agreement) and non-assessable (except as
such nonassessability may be affected by matters described in Sections
17-303, 17-607 and 17-804 of the Delaware LP Act).
8
Section
3.7
No Preemptive or
Registration Rights. Except
as set forth in the Partnership Agreement, there are no preemptive rights or
other rights to subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any capital stock or partnership or membership interests
of any of the Boardwalk Entities, in each case pursuant to any other agreement
or instrument to which any of such entities is a party or by which any one of
them may be bound. Except as contemplated by this Agreement and the
Registration Rights Agreement or provided for in the Partnership Agreement, (i)
neither the execution of this Agreement, nor the issuance of the Units as
contemplated by this Agreement gives rise to any rights for or relating to the
registration of any Partnership Securities, and (ii) there are no contracts,
agreements or understandings between any Boardwalk Entity and any person
granting such person the right to require Boardwalk to file a registration
statement under the Securities Act with respect to any securities of Boardwalk
owned or to be owned by such person, or to require Boardwalk to include such
securities in any securities registered or to be registered pursuant to any
registration statement filed by or required to be filed by Boardwalk under the
Securities Act.
Section
3.8
Periodic
Reports. Boardwalk
has filed all forms, reports, schedules and statements required to be filed by
it under the Exchange Act subsequent to December 31, 2008 and when they were
filed with the Commission, each such form, report, schedule and statement
conformed in all material respects to the requirements of the Exchange Act and
did 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.
Section
3.9
Litigation. Except
as described in Boardwalk’s Annual Report on Form 10-K for the year ended
December 31, 2008 or any other forms, reports, schedules and statements required
to be filed by it under the Exchange Act subsequent to December 31, 2008, there
are no legal or governmental proceedings pending to which any Boardwalk Entity
is a party or to which any property or asset of any Boardwalk Entity is subject
that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or a material adverse effect on the performance of this
Agreement or the consummation of the transactions contemplated hereby, and to
the knowledge of Boardwalk, no such proceedings are threatened by Governmental
Authorities or others.
Section
3.10 Certain
Fees. No
fees or commissions are or will be payable by Boardwalk to brokers, finders, or
investment bankers with respect to the sale of any of the Units or the
consummation of the transaction contemplated by this
Agreement. Boardwalk agrees that it will indemnify and hold harmless
the Purchaser from and against any and all claims, demands, or liabilities for
broker’s, finder’s, placement, or other similar fees or commissions incurred by
Boardwalk or alleged to have been incurred by Boardwalk in connection with the
sale of the Units or the consummation of the transactions contemplated by this
Agreement.
Section
3.11 No Side
Agreements. There
are no agreements by, among or between Boardwalk or any of its Affiliates, on
the one hand, and the Purchaser or any of its Affiliates, on the other hand,
with respect to the transactions contemplated hereby other than the Operative
Documents or the Waiver and Consent Agreement nor promises or inducements for
future transactions between or among any of such parties.
9
Section
3.12 No
Registration. Assuming
the accuracy of the representations and warranties of the Purchaser contained in
Section 4.6 and Section 4.7, the
issuance and sale of the Units pursuant to this Agreement is exempt from
registration requirements of the Securities Act of 1933, as
amended.
Section
3.13 No
Integration. Neither
Boardwalk nor any of its Subsidiaries have, directly or indirectly through any
agent, sold, offered for sale, solicited offers to buy or otherwise negotiated
in respect of, any “security” (as defined in the Securities Act of 1933, as
amended) that is or will be integrated with the sale of the Units in a manner
that would require registration under the Securities Act of 1933, as
amended.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
Purchaser hereby represents and warrants to Boardwalk that:
Section
4.1
Existence. The
Purchaser is duly organized and validly existing and in good standing as a
corporation under the laws of the State of Delaware, with all corporate power
and authority to own properties and to conduct its business as currently
conducted.
Section
4.2
Authorization,
Enforceability. The
Purchaser has all necessary corporate power and authority to execute, deliver
and perform its obligations under this Agreement, the Registration Rights
Agreement and the Waiver and Consent Agreement and to consummate the
transactions contemplated thereby, and the execution, delivery and performance
by the Purchaser of this Agreement, the Registration Rights Agreement and the
Waiver and Consent Agreement has been duly authorized by all necessary action on
the part of the Purchaser; and this Agreement, the Registration Rights Agreement
and the Waiver and Consent Agreement constitute the legal, valid and binding
obligations of the Purchaser, enforceable in accordance with their terms, except
as such enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer and similar laws affecting creditors’ rights generally or by general
principles of equity, including principles of commercial reasonableness, fair
dealing and good faith.
Section
4.3
No Breach. The
execution, delivery and performance of this Agreement, the Registration Rights
Agreement and the Waiver and Consent Agreement by the Purchaser and the
consummation by the Purchaser of the transactions contemplated hereby and
thereby will not (a) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any material
agreement to which the Purchaser is a party or by which the Purchaser is bound
or to which any of the property or assets of the Purchaser is subject,
(b) conflict with or result in any violation of the provisions of the
organizational documents of the Purchaser, or (c) violate any statute, order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Purchaser or the property or assets of the Purchaser,
except in the cases of clauses (a) and (c), for such conflicts, breaches,
violations or defaults as would not prevent the consummation of the transactions
contemplated by this Agreement, the Registration Rights Agreement and the Waiver
and Consent Agreement.
10
Section
4.4
Certain
Fees. No
fees or commissions are or will be payable by the Purchaser to brokers, finders,
or investment bankers with respect to the purchase of any of the Units or the
consummation of the transaction contemplated by this Agreement. The
Purchaser agrees that it will indemnify and hold harmless Boardwalk from and
against any and all claims, demands, or liabilities for broker’s, finder’s,
placement, or other similar fees or commissions incurred by the Purchaser or
alleged to have been incurred by the Purchaser in connection with the purchase
of the Units or the consummation of the transactions contemplated by this
Agreement.
Section
4.5
No Side
Agreements. There
are no other agreements by, among or between the Purchaser and any of its
Affiliates, on the one hand, and Boardwalk or any of its Affiliates, on the
other hand, with respect to the transactions contemplated hereby other than the
Operative Documents or the Waiver and Consent Agreement nor promises or
inducements for future transactions between or among any of such
parties.
Section
4.6
Investment. The
Units are being acquired for the Purchaser’s own account and with no intention
of distributing the Units or any part thereof, and the Purchaser has no present
intention of selling or granting any participation in or otherwise distributing
the same in any transaction in violation of the securities laws of the United
States or any state, without prejudice, however, to the Purchaser’s right at all
times to sell or otherwise dispose of all or any part of the Units under a
registration statement under the Securities Act and applicable state securities
laws or under an exemption from such registration available thereunder
(including, without limitation, if available, Rule 144 promulgated
thereunder). If the Purchaser should in the future decide to dispose
of any of the Units, the Purchaser understands and agrees (a) that it may
do so only in compliance with the Securities Act and applicable state securities
law, as then in effect, which may include a sale contemplated by any
registration statement pursuant to which such securities are being offered, and
(b) that stop-transfer instructions to that effect will be in effect with
respect to such securities.
Section
4.7
Nature of
Purchaser. The
Purchaser represents and warrants to, and covenants and agrees with, Boardwalk
that, (a) it is an “accredited investor” within the meaning of Rule 501 of
Regulation D promulgated by the Commission pursuant to the Securities Act and
(b) by reason of its business and financial experience it has such knowledge,
sophistication and experience in making similar investments and in business and
financial matters generally so as to be capable of evaluating the merits and
risks of the prospective investment in the Units, is able to bear the economic
risk of such investment and, at the present time, would be able to afford a
complete loss of such investment.
Section
4.8
Restricted
Securities. The
Purchaser understands that the Units are characterized as “restricted
securities” under the federal securities Laws inasmuch as they are being
acquired from Boardwalk in a transaction not involving a public offering and
that under such Laws and applicable regulations such securities may be resold
without registration under the Securities Act only in certain limited
circumstances. In this connection, the Purchaser represents that it
is knowledgeable with respect to Rule 144 of the Commission promulgated under
the Securities Act.
11
Section
4.9
Legend. It
is understood that the certificates evidencing the Units will bear the legend
required by the Partnership Agreement as well as the following
legend: “These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold or offered
for sale in the absence of a registration statement in effect with respect to
the securities under such Act or an opinion of counsel satisfactory to the
Company that such registration is not required or unless sold pursuant to
Rule 144 of such Act. These securities may be pledged in
connection with a bona fide margin account or other loan secured by such
securities.”
ARTICLE
V
COVENANTS
Section
5.1
Taking of Necessary
Action. Each
of the Parties hereto shall use its commercially reasonable efforts promptly to
take or cause to be taken all action and promptly to do or cause to be done all
things necessary, proper or advisable under applicable Law and regulations to
consummate and make effective the transactions contemplated by this
Agreement. Such actions may include, but shall not be limited to,
promptly executing and delivering any further agreements, documents and
instruments, and taking or forbearing to take any such further action as the
other party may reasonably request in order to more effectively carry out the
provisions of the Agreement.
Section
5.2
Payment of
Expenses. Boardwalk
hereby agrees to reimburse the Purchaser, upon demand, for its reasonable
out-of-pocket expenses incurred in connection with (i) the preparation of the
Operative Documents, (ii) the issue, sale and delivery of the Units and (iii)
any listing of the Units on any securities exchange or qualification of the
Units for quotation on the NYSE.
ARTICLE
VI
MISCELLANEOUS
Section
6.1
Interpretation and Survival
of Provisions. Article,
Section and Exhibit references are to this Agreement, unless otherwise
specified. All references to instruments, documents, contracts, and agreements
are references to such instruments, documents, contracts, and agreements as the
same may be amended, supplemented, and otherwise modified from time to time,
unless otherwise specified. The word “including” shall mean “including but not
limited to.” Whenever any party has an obligation under the Operative Documents,
the expense of complying with that obligation shall be an expense of such party
unless otherwise specified. Whenever any determination, consent, or approval is
to be made or given by the Purchaser, such action shall be in the Purchaser’s
sole discretion unless otherwise specified in this Agreement. If any
provision in the Operative Documents is held to be illegal, invalid, not
binding, or unenforceable, such provision shall be fully severable and the
Operative Documents shall be construed and enforced as if such illegal, invalid,
not binding, or unenforceable provision had never comprised a part of the
Operative Documents, and the remaining provisions shall remain in full force and
effect. The Operative Documents have been reviewed and
negotiated by sophisticated parties with access to legal counsel and shall not
be construed against the drafter.
12
Section
6.2
Survival of
Provisions. The
representations and warranties set forth in Sections 3.1, 3.4, 3.6, 3.7, 3.10, 3.11, 3.12, 4.4, 4.5, 4.7, 4.8 and 4.9 hereunder
shall survive the execution and delivery of this Agreement indefinitely, and the
other representations and warranties set forth herein shall survive for a period
of twelve (12) months following the Closing Date regardless of any investigation
made by or on behalf of Boardwalk or the Purchaser. The covenants
made in this Agreement or any other Operative Document shall survive the Closing
of the transactions described herein and remain operative and in full force and
effect regardless of acceptance of any of the Units and payment therefor and
repayment, conversion, exercise or repurchase thereof.
Section
6.3
No Waiver; Modifications in
Writing.
(a) Delay. No
failure or delay on the part of any party in exercising any right, power, or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power, or remedy preclude any other or
further exercise thereof or the exercise of any other right, power, or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to a party at law or in equity or
otherwise.
(b) Specific
Waiver. Except as otherwise provided herein, no amendment,
waiver, consent, modification, or termination of any provision of this Agreement
or any other Operative Document shall be effective unless signed by each of the
parties hereto or thereto affected by such amendment, waiver, consent,
modification, or termination. Any amendment, supplement or
modification of or to any provision of this Agreement or any other Operative
Document, any waiver of any provision of this Agreement or any other Operative
Document, and any consent to any departure by Boardwalk from the terms of any
provision of this Agreement or any other Operative Document shall be effective
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this Agreement, no notice
to or demand on Boardwalk in any case shall entitle Boardwalk to any other or
further notice or demand in similar or other circumstances.
Section
6.4
Binding Effect;
Assignment.
(a) Binding
Effect. This Agreement shall be binding upon Boardwalk, the
Purchaser, and their respective successors and permitted assigns. Except as
expressly provided in this Agreement, this Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and permitted assigns.
(b) Assignment of
Rights. All or any portion of the rights and obligations of
the Purchaser under this Agreement may be transferred by the Purchaser to any
Affiliate of the Purchaser without the consent of Boardwalk. No
portion of the rights and obligations of the Purchaser under this Agreement may
be transferred by the Purchaser to a non-Affiliate without the written consent
of Boardwalk (which consent shall not be unreasonably withheld by
Boardwalk).
13
Section
6.5
Communications. All
notices and demands provided for hereunder shall be in writing and shall be
given by registered or certified mail, return receipt requested, telecopy, air
courier guaranteeing overnight delivery or personal delivery to the following
addresses:
(a) If to the
Purchaser:
Boardwalk
Pipelines Holding Corp.
0
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
with a
copy to:
Loews
Corporation
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
(b) If to
Boardwalk:
0
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
or to
such other address as Boardwalk or the Purchaser may designate in writing. All
notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; at the time of transmittal, if sent
via electronic mail; upon actual receipt if sent by certified mail, return
receipt requested, or regular mail, if mailed; when receipt acknowledged, if
sent via facsimile; and upon actual receipt when delivered to an air courier
guaranteeing overnight delivery.
Section
6.6
Removal of
Legend. The
Purchaser may request Boardwalk to remove the legend described in Section 4.9 from
the certificates evidencing the Units by submitting to Boardwalk such
certificates, together with an opinion of counsel to the effect that such legend
is no longer required under the Securities Act or applicable state laws, as the
case may be. Boardwalk shall cooperate with the Purchaser to effect the removal
of such legend.
Section
6.7
Entire
Agreement. This
Agreement, the other Operative Documents and the other agreements and documents
referred to herein are intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or the other
Operative Documents with respect to the rights granted by Boardwalk or any of
its Affiliates or the Purchaser or any of its Affiliates set forth herein or
therein. This Agreement, the other Operative Documents and the other
agreements and documents referred to herein or therein supersede all prior
agreements and understandings between the parties with respect to such subject
matter.
14
Section
6.8
Governing
Law. THIS AGREEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW
YORK.
Section
6.9
Execution in
Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
6.10
Termination.
(a) Notwithstanding
anything herein to the contrary, this Agreement may be terminated at any time at
or prior to the Closing by either party, upon a breach in any material respect
by the other party of any covenant or agreement set forth in this
Agreement.
(b) Notwithstanding
anything herein to the contrary, this Agreement shall automatically terminate at
any time at or prior to the Closing if a statute, rule, order, decree or
regulation shall have been enacted or promulgated, or if any action shall have
been taken by any Governmental Authority of competent jurisdiction that
permanently restrains, permanently precludes, permanently enjoins or otherwise
permanently prohibits the consummation of the transactions contemplated by this
Agreement or makes the transactions contemplated by this Agreement
illegal.
(c) In the
event of the termination of this Agreement as provided in this Section 6.10,
this Agreement shall forthwith become null and void. In the event of
such termination, there shall be no liability on the part of any party hereto;
provided that nothing
herein shall relieve any party from any liability or obligation with respect to
any willful breach of this Agreement.
Section
6.11
Recapitalization, Exchanges,
Etc. Affecting the Units. The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all units of Boardwalk or any successor or assign of
Boardwalk (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for or in substitution of, the Units,
and shall be appropriately adjusted for combinations, recapitalizations and the
like occurring after the date of this Agreement and prior to the
Closing.
[Signature
page follows.]
15
|
|
By:
|
BOARDWALK
GP, LP
|
|
|
(its
General Partner)
|
|
|
By:
|
BOARDWALK
GP, LLC
|
|
|
(its
General Partner)
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxxx
|
|
|
Name: Xxxxx
X. Xxxxxxx
|
|
|
Title: Chief
Financial Officer
|
|
|
BOARDWALK
PIPELINES HOLDING CORP.
|
|
|
By:
|
/s/ Xxxxx X.
Xxxxxxx
|
|
|
Name: Xxxxx
X. Xxxxxxx
|
|
|
Title: Chief
Financial Officer
|
Signature Page to Unit Purchase Agreement
Exhibit
A – Form of Second Amended and Restated Registration Rights
Agreement
[See
Attached]
Exhibit
A to Purchase Agreement
SECOND
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made
and entered into as of June 26, 2009 by and between Boardwalk Pipeline
Partners, LP, a Delaware limited partnership (the “Partnership”), and
Boardwalk Pipelines Holding Corp., a Delaware corporation (the “Purchaser”).
WHEREAS,
the Partnership and the Purchaser previously entered into a Registration Rights
Agreement (the “Original Agreement”)
dated as of June 17, 2008 in connection with the closing of the issuance and
sale of Class B Units pursuant to the Class B Unit Purchase Agreement, dated as
of April 24, 2008, by and between the Partnership and the Purchaser (the “Class B Purchase
Agreement”);
WHEREAS,
the Partnership and the Purchaser previously entered into an Amended and
Restated Registration Rights Agreement (the “Amended and Restated
Agreement”) dated as of November 4, 2008 in connection with the
closing of the issuance and sale of Common Units pursuant to the Unit Purchase
Agreement, dated as of October 30, 2008, by and between the Partnership and
the Purchaser (the “October 2008 Purchase
Agreement”);
WHEREAS,
this Agreement is made to amend and restate the Amended and Restated Agreement
in connection with the closing of the issuance and sale of Common Units pursuant
to the Unit Purchase Agreement, dated as of June 23, 2009, by and
between the Partnership and the Purchaser (the “June 2009 Purchase
Agreement”);
ARTICLE
I
“Agreement” has the
meaning given to such term in the introductory paragraph.
“Class B Units” has
the meaning given to such term in the Partnership Agreement.
Exhibit
A to Purchase Agreement
“Effectiveness Period”
has the meaning given to such term in Section 2.01 of this
Agreement.
“Holder” means the
record holder of (i) any Registrable Securities and (ii) Class B Units prior to
their conversion into Common Units.
“June 2009 Purchase
Agreement” has the meaning given to such term in the Recitals of this
Agreement.
“Losses” has the
meaning given to such term in Section 2.07(a) of this
Agreement.
“Managing Underwriter”
means, with respect to any Underwritten Offering, the book-running lead manager
of such Underwritten Offering.
“Purchaser” has the
meaning given to such term in the introductory paragraph of this
Agreement.
“Registrable
Securities” means an amount of Common Units equal to the aggregate number
of Common Units issued pursuant to the June 2009 Purchase Agreement, the
October 2008 Purchase Agreement and the aggregate number of Common Units
into which the Class B Units issued pursuant to the Class B Purchase Agreement
are convertible, which Registrable Securities are subject to the rights provided
herein until such rights terminate pursuant to the provisions
hereof.
“Registration
Expenses” has the meaning given to such term in Section 2.06(b) of this
Agreement.
“Selling Expenses” has
the meaning given to such term in Section 2.06(b) of this
Agreement.
“Selling Holder” means
a Holder who is selling Registrable Securities pursuant to a registration
statement.
“Registration
Statement” has the meaning given to such term in Section 2.01 of this
Agreement.
“Underwritten
Offering” means an offering (including an offering pursuant to a
Registration Statement) in which Common Units are sold to one or more
underwriters on a firm commitment basis for reoffering to the public or an
offering that is a “bought deal” with one or more investment banks.
Exhibit
A to Purchase Agreement
2
ARTICLE
II
Exhibit
A to Purchase Agreement
3
Exhibit
A to Purchase Agreement
4
(a) prepare
and file with the Commission such amendments and supplements to
each Registration Statement and the prospectus used in connection therewith
as may be necessary to keep each Registration Statement effective for the
Effectiveness Period and as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
covered by such Registration Statement;
(b) if
a prospectus supplement will be used in connection with the marketing of an
Underwritten Offering from a Registration Statement and the Managing
Underwriter at any time shall notify the Partnership in writing that, in the
sole judgment of such Managing Underwriter, inclusion of detailed information to
be used in such prospectus supplement is of material importance to the success
of the Underwritten Offering, the Partnership shall use its commercially
reasonable efforts to include such information in such prospectus
supplement;
(c) furnish
to each Selling Holder (i) as far in advance as reasonably practicable before
filing a Registration Statement or any supplement or amendment thereto,
upon request, copies of reasonably complete drafts of all such documents
proposed to be filed (including exhibits and each document incorporated by
reference therein to the extent then required by the rules and regulations of
the Commission), and provide each such Selling Holder the opportunity to object
to any information pertaining to such Selling Holder and its plan of
distribution that is contained therein and make the corrections reasonably
requested by such Selling Holder with respect to such information prior to
filing a Registration Statement or supplement or amendment thereto, and
(ii) such number of copies of such Registration Statement and the
prospectus included therein and any supplements and amendments thereto as such
Selling Holder may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities covered by such Registration
Statement;
(d) if
applicable, use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by a Registration Statement under the
securities or blue sky laws of such jurisdictions as the Selling Holders or, in
the case of an Underwritten Offering, the Managing Underwriter, shall reasonably
request; provided,
however, that the Partnership will not be required to qualify generally
to transact business in any jurisdiction where it is not then required to so
qualify or to take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject;
(e) promptly
notify each Selling Holder and each underwriter, at any time when a prospectus
relating to the offering of Registrable Securities is required to be
delivered under the Securities Act, of (i) the filing of a Registration
Statement or any prospectus or prospectus supplement to be used in connection
therewith, or any amendment or supplement thereto, and, with respect to such
Registration Statement or any post-effective amendment thereto, when the same
has become effective; and (ii) any written comments from the Commission with
respect to any filing referred to in clause (i) and any written request by the
Commission for amendments or supplements to a Registration Statement or any
prospectus or prospectus supplement thereto;
Exhibit
A to Purchase Agreement
5
(f) immediately
notify each Selling Holder and each underwriter, at any time when a prospectus
relating to the offering of Registrable Securities is required to be delivered
under the Securities Act, of (i) the happening of any event as a result of which
the prospectus or prospectus supplement contained in a Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of the prospectus
contained therein, in the light of the circumstances under which a statement is
made); (ii) the issuance or threat of issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement, or the
initiation of any proceedings for that purpose; or (iii) the receipt by the
Partnership of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction. Following the
provision of such notice, the Partnership agrees to, as promptly as practicable,
amend or supplement the prospectus or prospectus supplement or take other
appropriate action so that the prospectus or prospectus supplement does not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing and to take such
other reasonable action as is necessary to remove a stop order, suspension,
threat thereof or proceedings related thereto;
(g) upon
request and subject to appropriate confidentiality obligations, furnish to each
Selling Holder copies of any and all transmittal letters or other correspondence
with the Commission or any other governmental agency or self-regulatory body or
other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering of Registrable Securities;
(h) in
the case of an Underwritten Offering, furnish upon request, (i) an opinion of
counsel for the Partnership dated the date of the closing under the underwriting
agreement, and (ii) a “cold comfort” letter, dated the pricing date of such
Underwritten Offering (to the extent available) and a letter of like kind
dated the date of the closing under the underwriting agreement, in each case,
signed by the independent public accountants who have certified the
Partnership’s financial statements included or incorporated by reference into
the applicable registration statement, and each of the opinion and the “cold
comfort” letter shall be in customary form and covering substantially the same
matters with respect to such registration statement (and the prospectus and any
prospectus supplement included therein) as have been customarily covered in
opinions of issuer’s counsel and in accountants’ letters delivered to the
underwriters in Underwritten Offerings of securities by the Partnership and such
other matters as such underwriters and Selling Holders may reasonably
request;
(i) otherwise
use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
Exhibit
A to Purchase Agreement
6
(j) make
available to the appropriate representatives of the Managing Underwriter and
Selling Holders access to such information and Partnership personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act;
(k) cause
all such Registrable Securities registered pursuant to this Agreement to be
listed on each securities exchange or nationally recognized quotation system on
which similar securities issued by the Partnership are then listed;
(l) use
its commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Partnership
to enable the Selling Holders to consummate the disposition of such Registrable
Securities;
(m) provide
a transfer agent and registrar for all Registrable Securities covered by a
Registration Statement not later than the effective date of such Registration
Statement; and
(n) enter
into customary agreements and take such other actions as are reasonably
requested by the Selling Holders or the underwriters, if any, in order to
expedite or facilitate the disposition of such Registrable
Securities.
Each
Selling Holder, upon receipt of notice from the Partnership of the happening of
any event of the kind described in subsection (f) of this Section 2.04, shall forthwith
discontinue disposition of the Registrable Securities until such Selling
Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (f) of this Section 2.04 or until it is
advised in writing by the Partnership that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings
incorporated by reference in the prospectus, and, if so directed by the
Partnership, such Selling Holder will, or will request the managing underwriter
or underwriters, if any, to deliver to the Partnership (at the Partnership’s
expense) all copies in their possession or control, other than permanent file
copies then in such Selling Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
Exhibit
A to Purchase Agreement
7
(b) Certain
Definitions. “Registration
Expenses” means all expenses incident to the Partnership’s performance
under or compliance with this Agreement to effect the registration of
Registrable Securities on a Registration Statement pursuant to Section 2.01 and/or
in connection with an Underwritten Offering pursuant to Section 2.02(a), and
the disposition of such Registrable Securities, including, without limitation,
all registration, filing, securities exchange listing and New York Stock
Exchange fees, all registration, filing, qualification and other fees and
expenses of complying with securities or blue sky laws, fees of the Financial
Industry Regulatory Authority, fees of transfer agents and registrars, all word
processing, duplicating and printing expenses, any transfer taxes and the fees
and disbursements of counsel and independent public accountants for the
Partnership, including the expenses of any special audits or “cold comfort”
letters required by or incident to such performance and
compliance. “Selling Expenses”
means underwriting fees, discounts and selling commissions allocable to the sale
of the Registrable Securities.
Exhibit
A to Purchase Agreement
8
Exhibit
A to Purchase Agreement
9
(a) make
and keep public information regarding the Partnership available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
from and after the date hereof;
(b) file
with the Commission in a timely manner all reports and other documents required
of the Partnership under the Exchange Act at all times from and after the date
hereof; and
(c) so
long as a Holder owns any Registrable Securities, furnish to such Holder
forthwith upon request a copy of the most recent annual or quarterly report of
the Partnership, and such other reports and documents so filed as such Holder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
Exhibit
A to Purchase Agreement
10
ARTICLE
III
(a) if
to the Purchaser:
Boardwalk
Pipelines Holding Corp.
0
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
with a
copy to:
Loews
Corporation
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
Exhibit
A to Purchase Agreement
11
(b) if
to a transferee of the Purchaser, to such Holder at the address provided
pursuant to Section
2.09;
and
(c) if
to the Partnership:
0
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: Corporate
Secretary
Facsimile:
(000) 000-0000
All such
notices and communications shall be deemed to have been received at the time
delivered by hand, if personally delivered; when receipt acknowledged, if sent
via facsimile or sent via Internet electronic mail; and when actually received,
if sent by courier service or any other means.
Exhibit
A to Purchase Agreement
12
Section
3.07 Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
Section
3.08 Governing Law. THIS AGREEMENT WILL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
Exhibit
A to Purchase Agreement
13
Exhibit
A to Purchase Agreement
14