EXHIBIT 4.G
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of November 27, 2002 (this
"AGREEMENT") is by and between El Paso Corporation, a Delaware corporation (the
"SELLER"), and El Paso Energy Partners, L.P., a Delaware limited partnership
("BUYER").
WHEREAS, the Seller is acquiring certain Series C Units (the "UNITS")
to be issued by Buyer pursuant to that certain Contribution, Purchase and Sale
Agreement dated as of November 21, 2002 by and between Buyer and Seller;
WHEREAS, the ability of the Seller to freely trade the Units may be
limited by applicable United States federal securities laws; and
WHEREAS, in order to improve the transferability of the Units, Buyer is
willing to provide certain registration rights with respect thereto.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein and other good and valuable
consideration (the receipt and sufficiency of which are hereby confirmed and
acknowledged), the parties hereto stipulate and agree as follows:
1. Securities Subject to this Agreement.
a. "REGISTRABLE SECURITIES" means the Units, as adjusted in the
event of unit splits, unit dividends or similar transactions
(and shall include any common units of Parent issued in
redemption of the Units).
b. "RESTRICTED SECURITIES" means each Registrable Security until
(i) a registration statement covering such Registrable
Security has been declared effective and it has been disposed
of pursuant to such effective registration statement, (ii) it
has been distributed pursuant to Rule 144 (or any similar
provisions then in force) under the Securities Act of 1933 (as
amended from time to time, the "ACT") or (iii) it has been
otherwise transferred and Parent has delivered a new
certificate or other evidence of ownership for it is not
subject to any legal or other restriction on transfer under
the Act or under state securities laws and is not bearing the
following legend (or one substantially similar thereto):
The securities represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933, as
amended, or the securities laws of any state. Without
such registration, such securities may not be sold,
pledged, hypothecated, or otherwise transferred,
except upon delivery to the Company of an opinion of
counsel satisfactory to the Company that registration
is not required for such transfer or the submission
to the Company of such other evidence as may be
satisfactory to the Company to the effect that any
such transfer shall not be in violation of the
Securities Act of 1933, as amended, or applicable
state securities laws or any rule or regulation
promulgated thereunder.
2. Demand Registration.
a. Request for Registration. Subject to the limitations contained
in this Agreement (including, but not limited to, Section 5),
at any time on or after the date of issuance of the
Registrable Securities, any holder or holders of a majority in
aggregate number of Restricted Securities then outstanding may
make a written request to Buyer for registration under the Act
pursuant to this Section 2 of all or part of its or their
Restricted Securities (a "DEMAND REGISTRATION"). Such request
will specify the aggregate number of Restricted Securities
proposed to be sold and will also specify the intended method
of disposition thereof. Within 10 days after receipt of such
request, Buyer will give written notice of such registration
request to all other holders of the Restricted Securities and
include in such registration all Restricted Securities with
respect to which Buyer has received written requests for
inclusion therein within 10 days after the receipt by the
applicable holder of Buyer's notice. Each such request will
also specify the aggregate number of Restricted Securities to
be registered and the intended method of disposition thereof.
No other party, including Buyer (but excluding another holder
of a Restricted Security) shall be permitted to offer
securities under any such Demand Registration unless (i)
holders of a majority of the Restricted Securities requesting
to participate in the Demand Registration shall consent in
writing or (ii) Buyer has an obligation to include such
securities in such registration.
b. Required Registrations. Subject to Section 5, Buyer is
obligated to effect only three (3) Demand Registrations
pursuant to this Section 2 (in addition to any registration in
which holders of Restricted Securities may participate
pursuant to the other provisions of this Agreement).
c. Effective Registration and Expenses. A registration will not
count as a Demand Registration for the purposes of Section
2(b) until it has become effective. In any registration
initiated as a Demand Registration, Buyer will pay all
Registration Expenses (as hereinafter defined) in connection
therewith, whether or not it becomes effective; provided,
however, that if (i) one (1) Demand Registration has
previously become effective with respect to any Registrable
Securities and (ii) a subsequent registration is initiated as
a Demand Registration with respect to any Restricted
Securities and such Demand Registration could have become
effective but does not solely because of holders withdrawing
their Restricted Securities, such withdrawing holders shall
pay the Registration Expenses (pro rata on the basis of the
Restricted Securities being withdrawn by each).
Notwithstanding the first sentence of this Section 2(c), any
such noneffective registration shall not constitute a Demand
Registration for the purposes of Section 2(b) unless each
holder of Restricted Securities then outstanding (whether or
not included in such registration) consents to such
noneffective registration counting as a Demand Registration,
in which case Buyer shall pay the Registration Expenses.
d. Priority on Demand Registrations. If the holders of a majority
in aggregate number of Restricted Securities to be registered
in a Demand
2
Registration so elect, the offering of such Restricted
Securities pursuant to such Demand Registration shall be in
the form of an underwritten offering. In such event, if the
managing underwriter or underwriters of such offering advise
Buyer and the holders in writing that in their opinion the
aggregate number of Restricted Securities requested to be
included in such offering is sufficiently large to materially
and adversely affect the success or offering price of such
offering, Buyer will include in such registration the
aggregate number of such Restricted Securities which in the
opinion of such managing underwriter or underwriters can be
sold without any such material adverse effect, and such
securities shall be allocated pro rata among the holders of
Restricted Securities on the basis of the number of Restricted
Securities requested to be included in such registration by
their holders.
e. Selection of Underwriters. If any Demand Registration is in
the form of an underwritten offering, the holders of a
majority in aggregate number of Restricted Securities to be
registered will select and obtain the investment banker or
investment bankers and manager or managers that will
administer the offering; provided, however, that such
investment bankers and managers must be reasonably
satisfactory to Buyer.
f. Periods Where no Registration is Required. Notwithstanding
anything to the contrary in this Section 2, Buyer will not be
required to register any Restricted Securities pursuant to
this Section 2: (i) during a reasonable period of time, not to
exceed 90 days, following the distribution of other securities
pursuant to a registered underwritten public offering if such
offering was commenced prior to the time Buyer receives the
request contemplated by Section 2(a) or (ii) during a
reasonable period of time, not to exceed 60 days, after which
the Board of Directors of El Paso Energy Partners Company, a
Delaware corporation and the general partner of Buyer (the
"GENERAL PARTNER"), acting in its capacity as general partner,
has determined that a registration of Restricted Securities
pursuant to this Section 2 would adversely affect Buyer
because of a material non-public acquisition or other material
transaction that is pending at the time Buyer receives the
request contemplated by Section 2(a).
3. Piggy-Back Registration. Subject to the limitations contained in this
Agreement (including, but not limited to, Section 5), if Buyer proposes
to file a registration statement under the Act with respect to an
offering by it for its own account of any class of security (other than
a registration statement on Form S-4 or S-8 or successor forms thereto
or filed in connection with an exchange offer or an offering of
securities solely to Buyer's existing unitholders), then Buyer shall in
each case give written notice of such proposed filing to the holders of
Restricted Securities at least 30 days before the anticipated filing
date, and such notice shall offer such holders the opportunity to
register such number of Restricted Securities as each such holder may
request. Upon the written request of any holder of Restricted
Securities made within 20 days of receipt of such notice, Buyer shall
use its Best Efforts (as hereinafter defined) to cause the managing
underwriter or underwriters of a proposed underwritten offering to
permit the holders of Restricted Securities requested to be included in
the registration of such offering to include such securities in such
offering on the same terms and conditions as any similar securities of
3
Buyer included therein. Notwithstanding the foregoing, if in the
managing underwriter's or underwriters' opinion, the total amount or
kind of securities which the holders of Restricted Securities, Buyer
and any other persons or entities intend to include in such offering is
sufficiently large to materially and adversely affect the success or
offering price of such offering, then the amount or kind of securities
to be offered for the accounts of holders of Restricted Securities
shall be reduced pro rata to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount
recommended by such managing underwriter; provided, however, that if
securities are being offered for the account of other persons or
entities as well as Buyer, such reduction shall not represent a greater
fraction of the number of securities intended to be offered by holders
of Restricted Securities than the fraction of similar reductions
imposed on such other persons or entities other than Buyer over the
amount of securities they intended to offer. In connection with a
piggyback registration pursuant to this Section 3, Buyer will bear all
Registration Expenses; provided, however, that Buyer will not have any
obligation pursuant to this sentence to persons or entities who do not
hold Restricted Securities. "BEST EFFORTS" as used herein means best
efforts in accordance with reasonable commercial practice and without
the incurrence of unreasonable expense.
4. Holdback Agreement.
a. Restrictions on Sale by Holder of Registrable Securities.
(i) Each holder of Registrable Securities agrees not to
sell, transfer or otherwise dispose of any
Registrable Securities in violation of the Act, or
any other applicable securities law.
(ii) To the extent not inconsistent with applicable law,
each holder of Registrable Securities whose
securities are included in a registration statement
agrees not to effect any sale or distribution of the
securities being registered or a similar security of
Buyer, or any securities convertible into or
exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 under the Act,
during the 7 days prior to, and during the 90 day
period beginning on, the effective date of such
registration statement (except as part of such
registration), if and to the extent requested by
Buyer in the case of a non-underwritten public
offering or if and to the extent requested by the
managing underwriter or underwriters in the case of
an underwritten public offering.
b. Restrictions on Sale by Buyer and Others. Buyer agrees not to
effect any sale or distribution of any securities similar to
those being registered, or any securities convertible into or
exchangeable or exercisable for such securities (other than
any such sale or distribution of such securities in connection
with any merger, conversion or consolidation by Buyer or any
subsidiary thereof or the acquisition by Buyer or a subsidiary
thereof of the capital stock or other equity or all or
substantially all of the assets or any other person or entity
or in connection with an employee stock option or benefit
plan), during the 7 days prior to, and during the 90 day
period beginning on, the effective date of any registration
statement in
4
which the holders of Registrable Securities are participating
(except as part of such registration), if and to the extent
requested by the holders in the case of a non-underwritten
public offering or if and to the extent requested by the
managing underwriter or underwriters in the case of an
underwritten public offering.
5. Registration Procedures. Whenever the holders of Restricted Securities
have requested that any Restricted Securities be registered pursuant to
Section 2 or Section 3 of this Agreement, Buyer will use its Best
Efforts to effect the registration of such Restricted Securities upon
the terms and conditions hereof to permit the sale of such Restricted
Securities by holders thereof in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with
any such request, Buyer will as expeditiously as possible:
a. in connection with a request pursuant to Section 2, prepare
and file with the Securities and Exchange Commission (the
"COMMISSION"), not later than 45 days after receipt of a
request to file a registration statement with respect to such
Restricted Securities, a registration statement on any form
for which Buyer then qualifies or which counsel for Buyer
shall deem appropriate and which form shall be available for
the sale of such Restricted Securities in accordance with the
intended method of distribution thereof, and use their Best
Efforts to cause such registration statement to become
effective as promptly as practicable thereafter; provided,
however, that if Buyer shall furnish to the holders making
such a request a certificate signed by the Chief Executive
Officer of Buyer stating that in the good faith judgment of
the Board of Directors of the General Partner it would be
significantly disadvantageous to Buyer and its unitholders for
such a registration statement to be filed on or before the
date filing would be required or would become effective, Buyer
shall have an additional period of not more than 30 days
within which to file (or before which they request the
effectiveness of) such registration statement; and, provided
further, that not less than 5 days before filing a
registration statement or prospectus or any amendments or
supplements thereto, Buyer will (i) furnish to one (1) counsel
selected by the holders of a majority in aggregate number of
the Restricted Securities covered by such registration
statement copies of all such documents proposed to be filed
which documents will be subject to the review of such counsel,
and the Buyer shall not file any such document which such
counsel shall have reasonably objected to in writing (if such
objection has been delivered prior to the expiration of such
five-day review period) on the grounds that such document does
not comply (explaining why) in any material respect with the
requirements of the Act or the rules and regulations
thereunder and (ii) notify each seller of Restricted
Securities of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered;
b. in connection with a registration pursuant to Section 2,
prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than
90 days or such shorter period which will terminate when all
Restricted Securities covered by
5
such registration statement have been sold (but not before the
expiration of the 90 day period referred to in Section 4(3) of
the Act and Rule 174 thereunder, if applicable), and comply
with the provisions of the Act with respect to the disposition
of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such
registration statement;
c. as soon as reasonably possible, furnish to each seller of
Restricted Securities to be included in a registration
statement, without charge, copies of such registration
statement as filed and each amendment and supplement thereto
(in each case including all exhibits thereto), the prospectus
included in such registration statement (including each
preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the
disposition of the Restricted Securities owned by such seller
in accordance with the intended method or methods of
distribution thereof;
d. use its Best Efforts to register or qualify such Restricted
Securities under such other securities or blue sky laws of
such jurisdictions as any seller reasonably requests and do
any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Restricted Securities
owned by such seller in accordance with the intended method or
methods of distribution thereof; provided, however, that Buyer
will not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required
to qualify but for this Section 5(d), (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
e. use its Best Efforts to cause the Restricted Securities
covered by such registration statement 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 Buyer to enable the seller or sellers thereof to consummate
the disposition of such Restricted Securities;
f. notify each seller of such Restricted Securities at any time
when a prospectus relating thereto is required to be delivered
under the Act, of the happening of any event as a result of
which the prospectus included in such registration statement
contains 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 in light of the
circumstances being made not misleading, and Buyer will
prepare a supplement or amendment to such prospectus so that,
as thereafter delivered to the purchasers of such Restricted
Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein in light of the circumstances being made
not misleading;
g. enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as
are reasonably required in order to
6
expedite or facilitate the disposition of such Restricted
Securities in accordance with the intended method or methods
of distribution thereof;
h. use its Best Efforts to make available for inspection by any
seller of Restricted Securities, any underwriter participating
in any disposition pursuant to such registration statement,
and any attorney, accountant or other agent retained by any
such seller or underwriter (collectively, the "INSPECTORS"),
all financial and other records, pertinent corporate documents
and properties of Buyer (collectively, the "RECORDS"), and
cause Buyer's officers and employees to supply all information
reasonably requested by any such Inspector, as shall be
reasonably necessary to enable them to exercise their due
diligence responsibility, in connection with such registration
statement. Records or other information which Buyer
determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such
Records or other information is necessary to avoid or correct
a misstatement or omission in the registration statement or
(ii) the release of such Records or other information is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. The seller of Restricted Securities
agrees that it will, upon learning that disclosure of such
Records or other information is sought in a court or competent
jurisdiction, give notice to Buyer and allow Buyer, at Buyer's
expense, to undertake appropriate action to prevent disclosure
of the Records or other information deemed confidential;
i. use its Best Efforts to obtain a comfort letter from Buyer's
independent public accountants and an opinion from the Buyer's
outside counsel in customary form and covering such matters of
the type customarily covered by comfort letters or opinions as
the holders of a majority in aggregate number of Restricted
Securities being sold reasonably request;
j. otherwise use its Best 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 covering a period of 12 months, beginning
within 3 months after the effective date of the registration
statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act;
k. if underwritten, use its Best Efforts to make appropriate
officers of Parent available to the underwriters for meetings
with prospective purchasers of the Restricted Securities and
prepare and present to potential investors customary "road
show" material in a manner consistent with other new issuances
of other securities similar to the Restricted Securities; and
l. if so required by applicable listing requirements, cause all
such Restricted Securities to be listed on each securities
exchange on which similar securities issued by Buyer are then
listed, provided that the applicable listing requirements are
satisfied.
7
(i) Buyer may require each seller of Restricted
Securities as to which any registration is being
effected to furnish to Buyer such information
regarding the distribution of such securities as
Parent may from time to time reasonably request in
writing.
(ii) Each holder of Restricted Securities agrees that,
upon receipt of any notice from Buyer of the
happening of any event of the kind described in
Section 5(f), such holder will forthwith discontinue
disposition of such Restricted Securities pursuant to
the registration statement covering such Restricted
Securities until such holder's receipt of the copies
of the supplemented or amended prospectus
contemplated by Section 5(f), and, if so directed by
Buyer, such holder will deliver to Buyer (at Buyer's
expense) all copies, other than permanent file copies
then in such holder's possession, of the prospectus
covering such Restricted Securities current at the
time of receipt of such notice. If Buyer shall give
any such notice, Buyer shall extend the period during
which such registration statement shall be maintained
effective pursuant to this Agreement (including the
period referred to in Section 5(b)) by the number of
days during the period from and including the date of
the giving of such notice pursuant to Section 5(f) to
and including the date when each seller of Restricted
Securities covered by such registration statement
shall have received the copies of the supplemented or
amended prospectus contemplated by Section 5(f).
6. Expiration. The obligation of Buyer to register any Restricted
Securities pursuant to this Agreement shall expire on December 31, 2012
with respect to Demand Registrations and on December 31, 2012 with
respect to piggyback registrations.
7. Registration Expenses. All expenses incident to Buyer's performance of
or compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of
Buyer's counsel in connection with blue sky qualifications of the
Restricted Securities), rating agency fees, printing expenses,
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the fees and expenses incurred
in connection with the listing of the securities to be registered on
each securities exchange on which similar securities issued by Buyer
are then listed, and fees and disbursements of counsel for Buyer and
its independent certified public accountants (including the expenses of
any special audit or "comfort" letters required by or incident to such
performance), securities acts liability insurance (if Buyer elects to
obtain such insurance), the fees and expenses of any special experts
retained by Buyer in connection with such registration, fees and
expenses of other persons retained by Buyer, reasonable fees and
expenses of one (1) counsel (who shall be reasonably acceptable to
Buyer) for the holders of Restricted Securities incurred in connection
with each registration hereunder (but not including any underwriting
discounts or commissions or transfer taxes attributable to the sale of
Restricted Securities) and any reasonable out-of-pocket expenses of the
holders of Restricted Securities (or the agents who manage their
accounts) excluding fees of counsel other than those fees specifically
referred to in this
8
Section 7 and excluding travel expenses (all such expenses being herein
called "REGISTRATION EXPENSES"), will be borne by Buyer.
8. Indemnification; Contribution.
a. Indemnification by Buyer. Buyer agrees to RELEASE, DEFEND,
INDEMNIFY, PROTECT AND HOLD HARMLESS, to the full extent
permitted by law, each holder of Registrable Securities, its
officers, directors and agents and each person or entity who
controls such holder (within the meaning of the Act) against
all losses, claims, damages, liabilities and expenses caused
by any untrue or alleged untrue statement of material fact
contained in any registration statement (or an amendment
thereto), prospectus or preliminary prospectus (or an
amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in
case of a prospectus or preliminary prospectus, in the light
of the circumstances under which they were made) not
misleading, except insofar as the same are caused by or
contained in any information with respect to such holder
furnished in writing to Buyer by such holder expressly for use
therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or
supplements thereto after Buyer's compliance with Section 5(c)
hereof. Buyer will also indemnify any underwriters of the
Registrable Securities, their officers and directors and each
person or entity who controls such underwriters (within the
meaning of the Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable
Securities.
b. Indemnification by Holder of Restricted Securities. In
connection with any registration statement in which a holder
of Restricted Securities is participating, each such holder
will furnish to Buyer in writing such information with respect
to such holder as is required to be included therein for use
in connection with any such registration statement or
prospectus and agrees to RELEASE, DEFEND, INDEMNIFY, PROTECT
AND HOLD HARMLESS, to the extent permitted by law, Buyer, the
General Partner, and each of their (as applicable), directors
and officers, and affiliates of any of them (within the
meaning of the Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged
untrue statement of a material fact or any omission or alleged
omission of a material fact required to be stated in the
registration statement (or an amendment thereto), prospectus
or preliminary prospectus (or an amendment or supplement
thereto) or any amendment thereof or supplement thereto or
necessary to make the statements therein (in the case of a
prospectus or preliminary prospectus, in the light of the
circumstances under which they were made) not misleading, to
the extent, but only to the extent, that such untrue statement
or omission is contained in any information with respect to
such holder so furnished in writing by such holder, provided,
however, that the aggregate amount which any such holder shall
be required to pay pursuant to this Section 8(b) and Section
8(c) shall in no case be greater than the amount of the net
proceeds received by
9
such person upon the sale of the Restricted Securities
pursuant to the registration statement giving rise to such
claim.
c. Conduct of Indemnification Proceedings. Any person or entity
entitled to indemnification hereunder agrees to give prompt
written notice to the indemnifying party after the receipt by
such person or entity of any written notice of the
commencement of any action, suit, proceeding or investigation
or threat thereof made in writing for which such person or
entity will claim indemnification or contribution pursuant to
this Agreement and, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between
such indemnified party and the indemnifying party with respect
to such claim, permit the indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to
such indemnified party. Whether or not such defense is assumed
by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its
consent (but such consent will not be unreasonably withheld).
No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. If the
indemnifying party is not entitled to, or elects not to,
assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one (1) counsel with
respect to such claim, unless in the reasonable judgment of
any indemnified party a conflict of interest may exist between
such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
d. Contribution. If for any reason the indemnity provided for in
this Section 8 is unavailable to, or is insufficient to hold
harmless, an indemnified party, then the indemnifying party
shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party
on the other or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, or provides a lesser
sum to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to reflect
not only the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other
but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable
considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such
indemnifying party or indemnified parties; and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of
the losses, claims, damages, abilities and
10
expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 8(c), any legal or
other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding to the extent
such party would have been indemnified for such fees or
expenses if the indemnification provided for in Section 8 was
available to such party in accordance with its terms.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. No person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person or
entity who was not guilty of such fraudulent
misrepresentation.
If indemnification is available under this Section 8, the
indemnifying parties shall indemnify each indemnified party to
the full extent provided in Section 8(a) and Section 8(b)
without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable
consideration provided for in this Section 8(d).
Notwithstanding anything in this Section 8(d) to the contrary,
no indemnifying party (other than the Company) shall be
required pursuant to this Section 8(d) to contribute any
amount in excess of the net proceeds received by such
indemnifying party for the sale of Restricted Securities in
the offering to which the losses, claims, damages or
liabilities of the indemnified parties relate, less the amount
of any indemnification payment made by such indemnifying party
pursuant to Sections 8(b) and (c).
9. Participation in Underwritten Registrations. No person or entity may
participate in any underwritten registration hereunder unless such
person or entity (a) agrees to sell such person's or entity's
securities on the basis provided in any underwriting arrangements
approved by the persons or entities entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
10. Representations and Warranties. The Seller hereby represents and
warrants to Buyer as follows:
a. It is a "sophisticated investor" as such term is contemplated
by applicable securities laws (including the related
jurisprudence);
b. The Registrable Securities are being acquired solely for its
own account for investment and not with a view toward, or for
resale in connection with, any "distribution" (as such term is
used in the Act and the rules and regulations thereunder) of
all or any portion thereof;
11
c. It understands and agrees that the Registrable Securities may
not be sold, pledged, hypothecated or otherwise transferred
unless they are registered under the Act and applicable state
securities laws or an exemption from such registration is
available;
d. It has adequate means of providing for its current needs and
possible contingencies, is able to bear the economic risks of
this investment and has a sufficient net worth to sustain a
loss of its entire investment in Buyer if such loss should
occur;
e. It has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of
an investment in Buyer; and
f. It has made its own inquiry and investigation into and based
thereon has formed an independent judgment concerning Parent
and the Registrable Securities, and has been furnished with or
given adequate access to such information about Buyer and the
Registrable Securities as it has requested.
11. Rule 144. If the Units are registered under the Act, from and after
such date of registration, Buyer covenants that it will file the
reports required to be filed by it under the Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder; and
it will take such further action as any holder of Restricted Securities
may reasonably request, all to the extent required from time to time to
enable such holder to sell Restricted Securities without registration
under the Act within the limitation of the exemptions provided by (a)
Rule 144 under the Act, as such Rule may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Restricted Securities,
Buyer will deliver to such holder a written statement as to whether it
has complied with such requirements.
12. Assignment of Registration Rights. The rights of the Seller under this
Agreement with respect to any Restricted Securities may be assigned to
any person or entity who acquires all or a portion of such Restricted
Securities. Any assignment of registration rights pursuant to this
Section 12 shall be effective upon receipt by Buyer of (i) written
notice from the assignor (A) stating the name and address of any
assignee, (B) describing the manner in which the assignee acquired the
Restricted Securities from the assignor and (C) identifying the
Restricted Securities with respect to which the rights under this
Agreement are being assigned, (ii) a certificate signed by the assignee
assuming all obligations of the assignor under this Agreement and (iii)
any other certificate or document that Buyer might reasonably require.
13. Miscellaneous.
a. Entire Agreement. This Agreement and the other agreements
executed in connection and contemporaneously herewith
constitute the entire agreement and supersede all prior (oral
and written) or contemporaneous proposals or agreements, all
previous negotiations and all other communications or
12
understandings between the parties hereto with respect to the
subject matter hereof.
b. Parties Bound by Agreement. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and,
subject to Section 12, their respective successors and
assigns.
c. Counterparts. This Agreement may be executed in multiple
counterparts, each of which, when executed, shall be deemed an
original, and all of which shall constitute but one and the
same instrument.
d. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT
UNDER, AND SHALL BE CONSTRUED, INTERPRETED AND GOVERNED BY AND
ACCORDING TO, THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT OF LAWS PRINCIPLES WHICH, IF APPLIED, MIGHT PERMIT OR
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
e. No Inconsistent Agreements. Buyer will not hereafter enter
into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement.
f. Remedies. Each holder of Registrable Securities, in addition
to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Buyer agrees
that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive (to the
extent permitted by law) the defense in any action for
specific performance that a remedy of law would be adequate.
g. Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified
or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless Parent has
obtained the written consent of holders of at least a majority
in aggregate number of Restricted Securities then outstanding
affected by such amendment, modification, supplement, waiver
or departure.
h. Further Assurances. Subject to the terms and conditions set
forth in this Agreement, each of the parties hereto agrees to
use all reasonable efforts to take, or to cause to be taken,
all actions, and to do, or to cause to be done, all things
necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement. If, at any time after the
execution of this Agreement, any further action is necessary
or desirable to carry out its purposes, the proper officers or
directors of the parties hereto shall take or cause to be
taken all such necessary action.
i. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall be
ineffective as to such jurisdiction, to the
13
extent of such invalidity or unenforceability, without
rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any terms or provisions of this Agreement in
any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable. A
bankruptcy or similar trustee must accept or, to the extent
permitted by law, reject this Agreement in its entirety.
j. Waivers. Neither action taken (including, without limitation,
any investigation by or on behalf of either party hereto) nor
inaction pursuant to this Agreement, shall be deemed to
constitute a waiver of compliance with any representation,
warranty, covenant or agreement contained herein by the party
not committing such action or inaction. A waiver by either
party hereto of a particular right, including, without
limitation, breach of any provision of this Agreement, shall
not operate or be construed as a subsequent waiver of that
same right or a waiver of any other right.
k. No Third Party Beneficiaries. Except to the extent a third
party is expressly given rights herein, any agreement herein
contained, expressed or implied, shall be only for the benefit
of the parties hereto and their respective legal
representatives and permitted successors and assigns, and such
agreements shall not inure to the benefit of any other person
whomsoever, it being the intention of the parties hereto that
no person shall be deemed a third party beneficiary of this
Agreement except to the extent a third party is expressly
given rights herein.
l. Termination. This Agreement shall terminate on December 31,
2012.
m. Notices. All notices and other communications provided or
permitted hereunder shall be made by hand-delivery or
registered first-class mail:
(i) if to the Seller:
El Paso Corporation
Attn: President
El Paso Building
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
(ii) if to a permitted successor holder of Restricted
Securities at the most current address, and with a copy to be sent to each
additional address, given by such holder to Buyer, in writing; and
(ii) if to Buyer:
El Paso Energy Partners, L.P.
Attn: President
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
14
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth in the preamble of this Agreement.
EL PASO CORPORATION
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: Vice President and Treasurer
--------------------------------
EL PASO ENERGY PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
---------------------------------
Title: Vice President and Chief
Financial Officer
--------------------------------
Series C Registration Rights Agreement Signature Page
