COMMON UNIT REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN PLAINS ALL AMERICAN PIPELINE, L.P. AND VULCAN GAS STORAGE LLC
Exhibit 4.1
COMMON UNIT
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
PLAINS ALL AMERICAN PIPELINE, L.P.
AND
VULCAN GAS STORAGE LLC
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
September 3, 2009, by and between PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited
partnership (the “Partnership”) and Vulcan Gas Storage LLC, a Delaware limited liability
company (“Gas Storage”).
WHEREAS, the Partnership and Gas Storage are parties to that certain Membership Interest
Purchase Agreement, dated August 27, 2009 (the “Purchase Agreement”), pursuant to which
Plains Marketing, L.P., a Texas limited partnership and subsidiary of the Partnership, will
purchase from Gas Storage, all of Gas Storage’s Membership Interests in PAA/Vulcan Gas Storage,
LLC, a Delaware limited liability company (the “Company”), as further described therein;
WHEREAS, pursuant to the Purchase Agreement, a portion of the purchase price to be paid to Gas
Storage for all of Gas Storage’s Membership Interests in the Company shall be the Closing Common
Units; and
WHEREAS, the Partnership has agreed to provide the registration and other rights set forth in
this Agreement for the benefit of Gas Storage.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by
each party hereto, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used herein without definition shall have
the meanings given to them in the Purchase Agreement. The terms set forth below are used herein as
so defined:
“Agreement” has the meaning specified therefor in the Recitals of this Agreement.
“Closing Common Units” has the meaning specified therefor in the Purchase Agreement.
“Commission” means the United States Securities and Exchange Commission.
“Common Units” means the common units of the Partnership.
“Company” has the meaning specified therefor in the Recitals of this Agreement.
“Effectiveness Period” has the meaning specified therefore in Section 2.01(a) of this
Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Holder” means the record holder of any Registrable Securities.
“Gas Storage” has the meaning specified therefor in the Recitals of this Agreement.
“Losses” has the meaning specified therefor in Section 2.06(a) of this Agreement.
“Managing Underwriter” means, with respect to any Underwritten Offering, the book
running lead manager of such Underwritten Offering.
“Partnership” has the meaning specified therefor in the Recitals of this Agreement.
“Person” means any individual, corporation, company, voluntary association,
partnership, joint venture, trust, limited liability company, unincorporated organization,
government or any agency, instrumentality or political subdivision thereof, or any other form of
entity.
“Purchase Agreement” has the meaning specified therefor in the Recitals of this
Agreement.
“Registrable Securities” means the Closing Common Units until such time as such
securities cease to be Registrable Securities pursuant to Section 1.02 hereof.
“Registration Expenses” has the meaning specified therefor in Section 2.05(a) of this
Agreement.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Selling Expenses” has the meaning specified therefor in Section 2.05(a) of this
Agreement.
“Selling Holder” means a Holder who is selling Registrable Securities pursuant to a
registration statement.
“Shelf Registration” has the meaning specified therefor in Section 2.01(a) of this
Agreement.
“Shelf Registration Statement” has the meaning specified therefor in Section 2.01(a)
of this Agreement.
“Underwritten Offering” means an offering (including an offering pursuant to a Shelf
Registration Statement) in which Common Units are sold to an underwriter on a firm commitment basis
for reoffering to the public or an offering that is a “bought deal” with one or more investment
banks.
Section 1.02 Registrable Securities. Any Registrable Security will cease to be a
Registrable Security when (a) a registration statement covering such Registrable Security has been
declared effective by the Commission and such Registrable Security has been sold or disposed of
pursuant to such effective registration statement; (b) such Registrable Security has
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been disposed of pursuant to any section of Rule 144 (or any similar provision then in force
under the Securities Act); (c) such Registrable Security is held by the Partnership or one of its
subsidiaries; or (d) such Registrable Security becomes saleable under Rule 144 of the Securities
Act without regard to any volume limitation requirement under Rule 144 of the Securities Act.
ARTICLE II.
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 2.01 Shelf Registration.
(a) Shelf Registration. As soon as practicable following the Closing of the purchase
of the Common Units pursuant to the terms of the Purchase Agreement, but in any event within 120
days of the Closing, the Partnership shall prepare and file a registration statement under the
Securities Act to permit the public resale of the Registrable Securities from time to time as
permitted by Rule 415 of the Securities Act (the “Shelf Registration Statement”). The
Partnership shall use its commercially reasonable efforts to cause the Shelf Registration Statement
to become effective no later than 240 days after the date of the Closing (the “Shelf
Registration”). The Shelf Registration Statement filed pursuant to this Section 2.01(a) shall
be on such appropriate registration form of the Commission as shall be selected by the Partnership;
provided, however, that if a prospectus supplement will be used in connection with
the marketing of an Underwritten Offering from the Shelf Registration Statement and the Managing
Underwriter at any time shall notify 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 of such Registrable Securities,
the Partnership shall use its commercially reasonable efforts to include such information in the
prospectus. The Partnership will cause the Shelf Registration Statement filed pursuant to this
Section 2.01(a) to be continuously effective under the Securities Act until all Registrable
Securities covered by the Shelf Registration Statement have been distributed in the manner set
forth and as contemplated in the Shelf Registration Statement or there are no longer any
Registrable Securities outstanding (the “Effectiveness Period”). The Shelf Registration
Statement when declared effective (including the documents incorporated therein by reference) will
comply as to form with all applicable requirements of the Securities Act and the Exchange Act and
will not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
(b) Delay Rights. Notwithstanding anything to the contrary contained herein, the
Partnership may, upon written notice to any Selling Holder whose Registrable Securities are
included in the Shelf Registration Statement, suspend such Selling Holder’s use of any prospectus
which is a part of the Shelf Registration Statement (in which event the Selling Holder shall
discontinue sales of the Registrable Securities pursuant to the Shelf Registration Statement) if
(i) the Partnership is pursuing an acquisition, merger, reorganization, disposition or other
similar transaction and the Partnership determines in good faith that the Partnership’s ability to
pursue or consummate such a transaction would be materially adversely affected by any required
disclosure of such transaction in the Shelf Registration Statement or (ii) the Partnership has
experienced some other material non-public event the disclosure of which would, in the good faith
judgment of the Partnership, be materially detrimental to the Partnership or its business
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prospects. Upon disclosure of such information or the termination of the condition described
above, the Partnership shall provide prompt notice to the Selling Holders whose Registrable
Securities are included in the Shelf Registration Statement, and shall promptly terminate any
suspension of sales it has put into effect and shall take such other actions to permit registered
sales of Registrable Securities as contemplated in this Agreement.
Section 2.02 Underwritten Offering.
(a) Shelf Registration. In the event that a Selling Holder elects to dispose of
Registrable Securities under the Shelf Registration Statement pursuant to an Underwritten Offering,
the Partnership shall enter into an underwriting agreement in customary form with the Managing
Underwriter or Underwriters, which shall include, among other provisions, indemnities to the effect
and to the extent provided in Section 2.06, and shall take all such other reasonable actions as are
requested by the Managing Underwriter in order to expedite or facilitate the registration and
disposition of the Registrable Securities; provided, however, the participation of
the Partnership’s management in connection with an Underwritten Offering for the benefit of Selling
Holders shall consist of not more than sixteen hours of teleconferences for the benefit of Gas
Storage annually; and provided further, that these marketing obligations are not transferable to
any other Holders other than Affiliates of Gas Storage, notwithstanding the provisions of Section
2.08 hereof.
(b) General Procedures. In connection with any Underwritten Offering under this
Agreement, the Partnership shall be entitled to select the Managing Underwriter or Underwriters.
In connection with an Underwritten Offering under Section 2.01 hereof, each Selling Holder and the
Partnership shall be obligated to enter into an underwriting agreement which contains such
representations, covenants, indemnities and other rights and obligations as are customary in
underwriting agreements for firm commitment offerings of securities. No Selling Holder may
participate in such Underwritten Offering unless such Selling Holder agrees to sell its Registrable
Securities on the basis provided in such underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities and other documents reasonably required under the
terms of such underwriting agreement. Each Selling Holder may, at its option, require that any or
all of the representations and warranties by, and the other agreements on the part of, the
Partnership to and for the benefit of such underwriters also be made to and for such Selling
Holder’s benefit and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement also be conditions precedent to its obligations. No
Selling Holder shall be required to make any representations or warranties to or agreements with
the Partnership or the underwriters other than representations, warranties or agreements regarding
such Selling Holder and its ownership of the securities being registered on its behalf and its
intended method of distribution and any other representation required by law. If any Selling
Holder disapproves of the terms of an underwriting, such Selling Holder may elect to withdraw
therefrom by notice to the Partnership and the Managing Underwriter; provided,
however, that such withdrawal must be made during the time period up to and including the
time of pricing of such offering to be effective. No such withdrawal or abandonment shall affect
the Partnership’s obligation to pay Registration Expenses.
Section 2.03 Registration Procedures. In connection with its obligations contained in
Section 2.01, the Partnership will, as expeditiously as possible:
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(a) prepare and file with the Commission such amendments and supplements to the Shelf
Registration Statement and the prospectus used in connection therewith as may be necessary to keep
the Shelf Registration Statement effective for the Effectiveness Period and as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition of all securities
covered by the Shelf Registration Statement;
(b) furnish to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Shelf Registration Statement or any supplement or amendment thereto, upon request,
copies of reasonably complete drafts of all such documents proposed to be filed (including exhibits
and each document incorporated by reference therein to the extent then required by the rules and
regulations of the Commission), and provide each such Selling Holder the opportunity to object to
any information pertaining to such Selling Holder and its plan of distribution that is contained
therein and make the corrections reasonably requested by such Selling Holder with respect to such
information prior to filing the Shelf Registration Statement or supplement or amendment thereto,
and (ii) such number of copies of the Shelf Registration Statement and the prospectus included
therein and any supplements and amendments thereto as such Persons may reasonably request in order
to facilitate the public sale or other disposition of the Registrable Securities covered by such
Shelf Registration Statement or other registration statement;
(c) if applicable, use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by the Shelf 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 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 which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(d) promptly notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of (i) the filing of the
Shelf Registration Statement or any prospectus or prospectus supplement to be used in connection
therewith, or any amendment or supplement thereto, and, with respect to such Shelf Registration
Statement, when the same has become effective; and (ii) any written comments from the Commission
with respect to any filing referred to in clause (i) and any written request by the Commission for
amendments or supplements to the Shelf Registration Statement or any prospectus or prospectus
supplement thereto;
(e) immediately notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of (i) the happening of any
event as a result of which the prospectus or prospectus supplement contained in the Shelf
Registration Statement, as then in effect, includes an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; (ii) the issuance or threat
of issuance by the Commission of any stop order suspending the effectiveness of the Shelf
Registration Statement, or 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
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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 action as is necessary to remove a stop order, suspension, threat
thereof or proceedings related thereto;
(f) furnish to each Selling Holder copies of any and all transmittal letters or other
correspondence with the Commission or any other governmental agency or self-regulatory body or
other body having jurisdiction (including any domestic or foreign securities exchange) relating to
such offering of Registrable Securities;
(g) in the case of an Underwritten Offering, furnish upon request, (i) an opinion of counsel
for the Partnership, dated the effective date of the applicable registration statement or the date
of any amendment or supplement thereto, and a letter of like kind dated the date of the closing
under the underwriting agreement, and (ii) a “cold comfort” letter, dated the effective date of the
applicable registration statement or the date of any amendment or supplement thereto and a letter
of like kind dated the date of the closing under the underwriting agreement, in each case, signed
by the independent public accountants who have certified 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) and as are customarily covered in opinions of issuer’s counsel and in
accountants’ letters delivered to the underwriters in Underwritten Offerings of securities, such
other matters as such underwriters may reasonably request;
(h) otherwise use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least 12 months, but not more than 18
months, beginning with the first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 promulgated thereunder;
(i) make available to the appropriate representatives of the Managing Underwriter and Selling
Holders access to such information and Partnership personnel as is reasonable and customary to
enable such parties to establish a due diligence defense under the Securities Act; provided that
the Partnership need not disclose any information to any such representative unless and until such
representative has entered into a confidentiality agreement with the Partnership;
(j) cause all such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange or nationally recognized quotation system on which similar securities
issued by the Partnership are then listed;
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(k) use its commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Partnership to enable the Selling Holders to
consummate the disposition of such Registrable Securities;
(l) provide a transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration statement; and
(m) enter into customary agreements and take such other actions as are reasonably requested by
the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition
of such Registrable Securities.
Each Selling Holder, upon receipt of notice from the Partnership of the happening of any event
of the kind described in subsection (e) of this Section 2.03, 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 (e) of this Section 2.03 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.
Section 2.04 Cooperation by Holders. The Partnership shall have no obligation to
include in the Shelf Registration Statement units of a Holder who has failed to timely furnish such
information which, in the opinion of counsel to the Partnership, is reasonably required in order
for the Shelf Registration Statement or any prospectus or prospectus supplement thereto, as
applicable, to comply with the Securities Act.
Section 2.05 Expenses.
(a) 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 in a Shelf Registration, and the disposition of such securities,
including, without limitation, all registration, filing, securities exchange listing and NYSE 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, transfer taxes and fees of
transfer agents and registrars, all word processing, duplicating and printing expenses, the fees
and disbursements of counsel and independent public accountants for the Partnership, including the
expenses of any special audits or “cold comfort” letters required by or incident to such
performance and compliance. Except as otherwise provided in Section 2.06 hereof, the Partnership
shall not be responsible for legal fees incurred by Holders in connection with the exercise of such
Holders’ rights hereunder. In addition, the Partnership shall not be responsible for any
“Selling Expenses,” which means all underwriting fees, discounts and selling commissions
allocable to the sale of the Registrable Securities.
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(b) Expenses. The Partnership will pay all Registration Expenses in connection with
the Shelf Registration Statement filed pursuant to Section 2.01(a) of this Agreement, whether or
not the Shelf Registration Statement becomes effective or any sale is made pursuant to the Shelf
Registration Statement. Each Selling Holder shall pay all Selling Expenses in connection with any
sale of its Registrable Securities hereunder.
Section 2.06 Indemnification.
(a) By the Partnership. In the event of a registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Partnership will indemnify and hold
harmless each Selling Holder thereunder, its directors and officers, and each underwriter, pursuant
to the applicable underwriting agreement with such underwriter, of Registrable Securities
thereunder and each Person, if any, who controls such Selling Holder or underwriter within the
meaning of the Securities Act and the Exchange Act, against any losses, claims, damages, expenses
or liabilities (including reasonable attorneys’ fees and expenses) (collectively,
“Losses”), joint or several, to which such Selling Holder or underwriter or controlling
Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such
Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any material fact
contained in the Shelf Registration Statement, any preliminary prospectus or final prospectus
contained therein, or any “issuer free writing prospectus” (as defined in Securities Act Rule 433),
or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in light of the circumstances under which they
were made) not misleading, and will reimburse each such Selling Holder, its directors and officers,
each such underwriter and each such controlling Person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such Loss or actions or
proceedings; provided, however, that the Partnership will not be liable in any such
case if and to the extent that any such Loss arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity with information
furnished by such Selling Holder, such underwriter or such controlling Person in writing
specifically for use in the Shelf Registration Statement or any prospectus contained therein or any
amendment or supplement thereof. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Selling Holder or any such director, officer or
controlling Person, and shall survive the transfer of such securities by such Selling Holder.
(b) By Each Selling Holder. Each Selling Holder agrees severally and not jointly to
indemnify and hold harmless the Partnership, its directors and officers, and each Person, if any,
who controls the Partnership within the meaning of the Securities Act or of the Exchange Act to the
same extent as the foregoing indemnity from the Partnership to the Selling Holders, but only with
respect to information regarding such Selling Holder furnished in writing by or on behalf of such
Selling Holder expressly for inclusion in the Shelf Registration Statement or any prospectus
contained therein or any amendment or supplement thereof relating to the Registrable Securities;
provided, however, that the liability of each Selling Holder shall not be greater
in amount than the dollar amount of the proceeds (net of any Selling Expenses) received
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by such Selling Holder from the sale of the Registrable Securities giving rise to such
indemnification.
(c) Notice. Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party other than under this Section 2.06. In any action brought
against any indemnified party, it shall notify the indemnifying party of the commencement thereof.
The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified
party and, after notice from the indemnifying party to such indemnified party of its election so to
assume and undertake the defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 2.06 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; provided, however, that, (i)
if the indemnifying party has failed to assume the defense and employ counsel or (ii) if the
defendants in any such action include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have concluded that there may be reasonable defenses
available to the indemnified party that are different from or additional to those available to the
indemnifying party, or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, then the indemnified party shall have the
right to select a separate counsel and to assume such legal defense and otherwise to participate in
the defense of such action, with the reasonable expenses and fees of such separate counsel and
other reasonable expenses related to such participation to be reimbursed by the indemnifying party
as incurred. Notwithstanding any other provision of this Agreement, no indemnified party shall
settle any action brought against it with respect to which it is entitled to indemnification
hereunder without the consent of the indemnifying party, unless the settlement thereof imposes no
liability or obligation on, and includes a complete and unconditional release from all liability
of, the indemnifying party.
(d) Contribution. If the indemnification provided for in this Section 2.06 is held by
a court or government agency of competent jurisdiction to be unavailable to the Partnership or any
Selling Holder or is insufficient to hold them harmless in respect of any Losses, then each such
indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Losses as between the Partnership on
the one hand and such Selling Holder on the other, in such proportion as is appropriate to reflect
the relative fault of the Partnership on the one hand and of such Selling Holder on the other in
connection with the statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations; provided, however, that in no event shall such
Selling Holder be required to contribute an aggregate amount in excess of the dollar amount of
proceeds (net of Selling Expenses) received by such Selling Holder from the sale of Registrable
Securities giving rise to such indemnification. The relative fault of the Partnership on the one
hand and each Selling Holder on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact has been made by, or relates to, information supplied by such
party, and the parties’ relative intent, knowledge, access to
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information and opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant to this paragraph
were to be determined by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the first sentence of this paragraph.
The amount paid by an indemnified party as a result of the Losses referred to in the first sentence
of this paragraph shall be deemed to include any legal and other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any Loss which is the subject
of this paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of
such fraudulent misrepresentation.
(e) Other Indemnification. The provisions of this Section 2.06 shall be in addition
to any other rights to indemnification or contribution which an indemnified party may have pursuant
to law, equity, contract or otherwise.
Section 2.07 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the Registrable
Securities to the public without registration, the Partnership agrees to use its commercially
reasonable efforts to:
(a) Make and keep public information regarding the Partnership available, as those terms are
understood and defined in Rule 144 of the Securities Act, at all times from and after the date
hereof;
(b) File with the Commission in a timely manner all reports and other documents required of
the Partnership under the Securities Act and the Exchange Act at all times from and after the date
hereof; and
(c) So long as a Holder owns any Registrable Securities, furnish 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.
Section 2.08 Transfer or Assignment of Registration Rights. The rights to cause the
Partnership to register Registrable Securities granted to Gas Storage by the Partnership under this
Article II may be transferred or assigned by Gas Storage to one or more transferee(s) or
assignee(s) of such Registrable Securities, provided that (a) unless such transferee is an
Affiliate of Gas Storage, each such transferee or assignee, collectively with its or their
affiliates after giving effect to any transfer or assignment or series of transfers or assignments,
holds Registrable Securities representing at least 15% of the number of Closing Common Units sold
to Gas Storage pursuant to the terms of the Purchase Agreement, (b) the Partnership is given
written notice prior to any said transfer or assignment, stating the name and address of each such
transferee and identifying the securities with respect to which such registration rights are being
transferred or assigned, and (c) each such transferee assumes in writing responsibility for its
portion of the obligations of Gas Storage under this Agreement.
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ARTICLE III.
MISCELLANEOUS
MISCELLANEOUS
Section 3.01 Communications. All notices and other communications provided for or
permitted hereunder shall be made in writing by facsimile, courier service or personal delivery:
(a) if to Gas Storage, at the most current address given by Gas Storage to the Partnership in
accordance with the provisions of this Section 3.01, which addresses initially are, with respect to
Gas Storage, the address set forth in the Purchase Agreement,
(b) if to a transferee of Gas Storage, to such Holder at the address provided pursuant to
Section 2.08 above, and
(c) if to the Partnership, at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, 00000, Attention:
Xxx Xxxxx, with a copy which shall not constitute notice to D. Xxxx Xxxx, Jr., 0000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, notice of which is given in accordance with the provisions of
this Section 3.01.
All such notices and communications shall be deemed to have been received at the time
delivered by hand, if personally delivered; when receipt acknowledged, if sent via facsimile or
sent via Internet electronic mail; and when actually received, if sent by any other means.
Section 3.02 Successor and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties, including subsequent Holders of
Registrable Securities to the extent permitted herein.
Section 3.03 Assignment of Rights. All or any portion of the rights and obligations
of Gas Storage under this Agreement may be transferred or assigned by Gas Storage in accordance
with Section 2.08 hereof.
Section 3.04 Recapitalization, Exchanges, etc. Affecting the Closing Common Units.
The provisions of this Agreement shall apply to the full extent set forth herein with respect to
any and all units of the Partnership or any successor or assign of the Partnership (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange
for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for
combinations, recapitalizations and the like occurring after the date of this Agreement.
Section 3.05 Specific Performance. Damages in the event of breach of this Agreement
by a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed
that each such Person, in addition to and without limiting any other remedy or right it may have,
will have the right to an injunction or other equitable relief in any court of competent
jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions
hereof, and each of the parties hereto hereby waives any and all defenses it may have on the ground
of lack of jurisdiction or competence of the court to grant such an injunction or other equitable
relief. The existence of this right will not preclude any such Person from pursuing any other
rights and remedies at law or in equity which such Person may have.
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Section 3.06 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 3.07 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. The laws of the State of Delaware shall govern this
Agreement without regard to principles of conflict of laws.
Section 3.09 Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof or affecting or impairing the validity or enforceability of such provision in any other
jurisdiction.
Section 3.10 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the rights granted by the Partnership set forth herein.
This Agreement supersedes all prior agreements and understandings between the parties with respect
to such subject matter.
Section 3.11 Amendment. This Agreement may be amended only by means of a written
amendment signed by the Partnership and the Holders of a majority of the then outstanding
Registrable Securities; provided, however, that no such amendment shall materially
and adversely affect the rights of any Holder hereunder without the consent of such Holder.
Section 3.12 No Presumption. In the event any claim is made by a party relating to
any conflict, omission, or ambiguity in this Agreement, no presumption or burden of proof or
persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the
request of a particular party or its counsel.
[The remainder of this page is intentionally left blank.]
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| PLAINS ALL AMERICAN PIPELINE, LP. |
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| By: | PAA GP LLC its General Partner |
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| By: | Plains AAP, L.P., its Sole Member |
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| By: | Plains All American GP LLC, its General Partner |
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| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| VULCAN GAS STORAGE LLC |
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| By: | Vulcan Capital Private Equity I LLC, its Manager |
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| By: | Vulcan Capital Private Equity Management I LLC, its Manager |
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| By: | Vulcan Capital Private Equity Inc., its Managing Member |
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| By: | /s/ Xxxxxxx X. XxXxxxx | |||
| Name: | Xxxxxxx X. XxXxxxx | |||
| Title: | Vice President | |||
[Signature Page to Common Unit Registration Rights Agreement]
