Exhibit 10.4
INVESTORS RIGHTS AGREEMENT
THIS INVESTORS RIGHTS AGREEMENT ("Agreement") is made as of January 12,
2001, by and among Inergy Partners, LLC, a Delaware limited liability company,
(the "Company") and the persons and entities listed on the signature pages
hereof (each, an "Investor" and, collectively, the "Investors").
WHEREAS, KCEP VENTURES II, L.P. ("KCEP") made a 10% preferred interest
investment (the "KCEP 1999 Interests") in the Company pursuant to a Securities
Purchase Agreement dated December 31, 1999, between the Company and KCEP.
WHEREAS, the Investors are making an 11% preferred interest investment in
the Company pursuant to a Securities Purchase Agreement dated January 12, 2001,
by and among the Company, the Investors, and the Warrant Investors that are
signatory thereto (the "Securities Purchase Agreement").
WHEREAS, the KCEP 1999 Interests are, and the Class A Preferred Interests
(as defined in Securities Purchase Agreement) to be acquired by the Investors
under the Securities Purchase Agreement, as well as any securities into which or
for which the KCEP 1999 Interests and the Class A Preferred Interests may be
converted or exchanged in the future, will be "restricted securities" as defined
in Rule 144 under the Securities Act of 1933, as amended. As a result, there
will be significant restrictions on the ability of the holders of such
securities to resell those securities in the absence of registration under
applicable federal and state securities laws.
WHEREAS, the Company may in the future conduct a public offering of common
units (the "Common Units") representing limited partner units in a master
limited partnership (the "Qualified IPO"), and upon successful completion of the
Qualified IPO, the KCEP 1999 Interests and the Class A Preferred Interests will
be converted into senior subordinated units of the master limited partnership
(the "Senior Subordinated Units").
WHEREAS, pursuant to the terms of the master limited partnership agreement,
the Senior Subordinated Units from time to time will be released from
subordination such that they may be converted into common units of the master
limited partnership (the "Common Units").
WHEREAS, the execution and delivery of this Agreement by the parties hereto
is a condition precedent to the Investors' obligation to purchase the Class A
Preferred Interests under the Securities Purchase Agreement.
NOW THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereby agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Securities Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
(a) "Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
(b) "Blackout Period" means any period
(A) beginning on the date on which the Company notifies the Holders
(as defined below) that (i) the Board of Directors of the Company, in its good
faith judgment, has determined that there are material developments with respect
to the Company such that it would be seriously detrimental to the Company and
its unitholders to utilize a registration statement pursuant to this Agreement;
or (ii) the Board of Directors of the Company, in its good faith judgment, has
determined that financial statements with respect to the Company, which may be
required to utilize a registration statement pursuant to this Agreement, are
unavailable; and
(B) ending on the date (1) with respect to clause (i) above, as soon
as practicable but not more than 30 days after the date on which the Company
notifies the Holders of the Board of Directors' determination; and (2) with
respect to clause (ii) above, as soon as financial statements sufficient to
permit the Company to file or permit the utilization of a registration statement
under the Act have become available.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
(d) "Final Subordination Release Date" shall mean the Subordination
Release Date on which all Senior Subordinated Units that remain outstanding and
that have not previously been released from subordination are released from
subordination pursuant to the master limited partnership agreement, such that
they may be converted into Common Units.
(e) "Holder" or "Holders" shall mean any holder of outstanding
Registrable Securities (as defined below) or anyone who holds outstanding
Registrable Securities to whom the registration rights conferred by this
Agreement have been transferred in compliance with this Agreement.
(f) "Initiating Holders" shall mean any Holder or Holders of at least
fifty percent (50%) of the then-outstanding Registrable Securities.
(g) "Maximum Includable Securities" shall mean the maximum number of each
type or class of the Company's securities that the managing underwriter, in its
good faith judgment, deems practicable to offer and sell at that time in a firm
commitment underwritten offering without materially and adversely affecting the
marketability or price of the securities of the Company to be offered. When more
than one type or class of the Company's securities are to be included in a
registration, the managing underwriter of the offering shall designate the
maximum number of each such type or class of securities that is included in the
Maximum Includable Securities.
(h) "Minimum Demand Amount" shall mean
(i) following the first Subordination Release Date and prior to the
second Subordination Release Date, the Minimum Demand Amount shall be
$5,000,000;
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(ii) following the second Subordination Release Date (if such a
Subordination Release Date occurs) and prior to the third Subordination Release
Date, the Minimum Demand Amount shall be $10,000,000; and
(iii) at all times following the third Subordination Release Date (if
such a Subordination Release Date occurs) the Minimum Demand Amount shall be
$15,000,000.
(i) "Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement or document.
(j) "Registrable Securities" shall mean
(i) Common Units held by the Investors that were issued (A) upon
conversion of the Senior Subordinated Units or (B) as a result of a stock split
or dividend or recapitalization with respect to such Common Units or (C) as a
result of any merger, consolidation or reorganization with respect to such
Common Units; and
(ii) any other successor securities received in respect of any of the
securities described in Section 1(j)(i).
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As to any particular Registrable Securities, such securities will cease to be
Registrable Securities (y) when they have been distributed to the public
pursuant to an offering registered under the Act, or (z) when they have been
sold to the public through a broker, dealer, or market-maker in compliance with
Rule 144 under the Act.
(k) "SEC" means the Securities and Exchange Commission.
(l) "Subordination Release Date" shall mean each date on which Senior
Subordinated Units are released from subordination pursuant to the master
limited partnership agreement, such that they may be converted into Common
Units.
(m) "Violation" means any of the following statements, omissions, or
violations: (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation by the Company of any rule or
regulation promulgated under the Act or any state securities law applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration.
2. Demand Registration Rights.
(a) If, at any time after the expiration of any lock-up agreements
between the Holders and the managing underwriter of a Qualified IPO, the Company
shall receive a written request from the Initiating Holders requesting the
registration of at least fifty percent (50%) of the Registrable Securities then
outstanding (or a lesser percentage if the anticipated aggregate offering price,
net of underwriting discounts and commissions, would exceed the then-current
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Minimum Demand Amount), then the Company shall, within 10 days of the receipt
thereof, give written notice of such request to all Holders in accordance with
the notice provisions of Section 14(b) hereof. Subject to the limitations of
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Section 2(b), the Company shall effect as soon as practicable, and in any event
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within 150 days of the receipt of such request, the registration under the Act
of all Registrable Securities that the Holders request to be registered within
20 days of the mailing of such notice by the Company.
(b) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting registration of the Registrable Securities pursuant to this
Section 2 a certificate signed by the President of the Company stating that a
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Blackout Period is in effect, the Company shall have the right to defer such
filing during the term of such Blackout Period; provided, that the Company may
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not file a registration statement for securities to be issued and sold for its
own account or for the account of any other person during any Blackout Period
and further provided that the Company may not utilize this right more than twice
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in any 12-month period or in a manner that results in Blackout Periods pursuant
to any and all provisions of this Agreement aggregating more than 180 days
during any 12-month period.
(c) If the Initiating Holders give written notice requesting registration
of their Registrable Securities pursuant to this Section 2, and if the Company
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at that time is not eligible to register its securities on Form S-3, the Company
shall prepare and file a registration statement on such other form for the
general registration of securities as may be appropriate in accordance with the
terms and conditions set forth in this Section 2.
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(d) The Company may propose to include additional Common Units or other
securities ("Additional Units") to be sold by the Company and/or by other
holders of Common Units or other securities in any registration statement to be
filed pursuant to this Section 2. The Initiating Holders shall have the right to
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reduce the number of Additional Units requested to be registered by other
securityholders pursuant to this Section 2(d) (including, if necessary, to zero)
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if, in the good faith opinion of the underwriter or underwriters of such
offering, the inclusion of such Additional Units would materially and adversely
affect the marketability or price of the Registrable Securities to be offered by
the Holders in such registration.
(e) The Company shall be obligated to effect one registration pursuant to
this Section 2 for each Subordination Release Date that occurs, provided that
the Company shall not be obligated to effect more than one registration pursuant
to this Section 2 in any 12-month period.
(f) The Initiating Holders shall have the right to select the managing
underwriter or underwriters, subject to the approval of the Company, which
approval shall not be unreasonably withheld, that will undertake the sale and
distribution of the Shares to be included in a registration statement filed
under the provisions of this Section 2. If the managing underwriter advises the
Company in writing that marketing factors require a limitation of the number of
Registrable Securities to be underwritten, then the Company shall furnish all
Holders of Registrable Securities that would otherwise be underwritten with a
written statement of the managing underwriter as to the Maximum Includable
Securities. In such event, the number of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders requesting
registration on a pro rata basis, with the number of Registrable Securities of
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each Holder thereof included in the registration to be that number determined by
multiplying the total number of such type or class of security included in the
Maximum Includable Securities by a fraction, the numerator of which shall be the
total number of such type or class of security that such Holder owns, and the
denominator of which shall be the total number of such type or class of security
owned by all Holders that have requested inclusion of such type or class of
security in the registration. Any reduction of more than 50% of the Registrable
Securities sought to be registered will not be considered a registration under
this Section 2.
3. Registration on Form S-3.
(a) In addition to the registration rights provided pursuant to
Section 2 of this Agreement, if at any time that the Company is eligible to
register its securities on Form S-3 (or any successor to Form S-3) the Company
shall receive a written request from the Initiating Holders that the Company
file a registration statement under the Act on Form S-3 to register for resale
at least thirty-three and one-third percent (33 1/3%) of the Registrable
Securities then outstanding (or a lessor percentage if the anticipated aggregate
offering price, net of underwriting discounts and commissions, would exceed
$3,000,000), then the Company shall, within 10 days of receipt thereof, give
written notice of such request to all Holders in accordance with the notice
provisions of Section 14(b) hereof. The Company shall effect as soon as
practicable, and in any event within 120 days of the receipt of such request,
the registration on Form S-3 under the Act of all Registrable Securities that
the Holders request to be registered within 20 days of the mailing of such
notice by the Company.
(b) The Company shall be obligated to effect only one such
registration pursuant to this Section 3 in each 12-month period; provided
further, the Company shall not be obligated to effect any registrations pursuant
to this Section 3 during any 12-month period following the effective date of a
registration under Section 2.
(c) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 3 a
certificate signed by the President of the Company stating that a Blackout
Period is in effect, the Company shall have the right to defer such filing
during the term of such Blackout Period; provided, that the Company may not file
a registration statement for securities to be issued and sold for its own
account or for the account of any other person during any Blackout Period and
further provided, that the Company may not utilize this right more than twice in
any 12-month period or in a manner that results in Blackout Periods pursuant to
any and all provisions of this Agreement aggregating more than 180 days during
any 12-month period.
(d) If the Company shall furnish to Holders whose Registrable
Securities have been registered pursuant to this Section 3 a certificate signed
by the President of the Company stating that a Blackout Period is in effect, the
Holders shall not sell any Registrable Securities during such Blackout Period,
notwithstanding the fact that such Registrable Securities may otherwise be sold
pursuant to the effective registration statement or otherwise.
(e) If any proposed registration pursuant to this Section 3 is to be
an underwritten offering, the provisions of Sections 2(d) and 2(f) shall apply.
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4. Piggy-Back Registration Rights.
(a) If, following the effective date of the first registration statement
for a qualified IPO (but without any obligation to do so), the Company proposes
to file on its behalf and/or on behalf of any of its securityholders a
registration statement under the Act with respect to any of its securities, the
Company shall give each Holder written notice at least 20 days before the filing
with the SEC of such registration statement. If any Holder desires to have
Registrable Securities registered pursuant to this Section 4, such Holder shall
so advise the Company in writing within 15 days after the date of delivery of
such notice. The Company shall thereupon include in such filing the number of
Registrable Securities for which registration is so requested, subject to its
right to reduce the number of Registrable Securities as hereinafter provided,
and shall use its best efforts to effect registration under the Act of such
Registrable Securities. Notwithstanding the foregoing, the Company shall not be
required to provide notice of filing of a registration statement and to include
therein any Registrable Securities if the proposed registration is
(i) a registration on Form S-8, or other comparable form then in
effect, of stock options, compensatory stock purchases, compensation or
incentive plans, or of securities issued or issuable pursuant to any such plan,
or a dividend reinvestment plan; or
(ii) a registration of securities proposed to be issued in exchange
for securities or assets of, or in connection with, a merger or consolidation
with another corporation.
(b) In the event the offering in which any Holder's Registrable Securities
are to be included pursuant to this Section 4 is to be underwritten, the Company
shall furnish the Holders with a written statement of the managing underwriter
as to the Maximum Includable Securities as soon as practicable after the
expiration of the 15-day period provided for in Section 4(a). The managing
underwriter may exclude Registrable Securities entirely from such registration,
provided that the managing underwriter also excludes from such registration and
underwriting all securities held by any other person. If the total number of
securities proposed to be included in such registration statement is in excess
of the Maximum Includable Securities, the number of securities to be included
within the coverage of such registration statement shall be reduced to the
Maximum Includable Securities as follows:
(i) no reduction shall be made in the number of securities to be
registered for the account of the Company or for the benefit of any of the
Company's securityholders that have the right to require the Company to initiate
the registration of such securities; and
(ii) the number of Registrable Securities and other securities that
may be included in the registration, if any, shall be allocated among the
Holders of Registrable Securities and holders of other securities (the "Other
Holders") requesting inclusion on a pro rata basis, with the number of each type
or class of securities of each Holder and Other Holder thereof included in the
registration to be that number determined by multiplying (A) the total number of
such type or class of security included in the Maximum Includable Securities
less (B) the number of such type or class of security to be registered for the
account of the Company or other securityholders that have the right to require
the Company to initiate the registration, by a
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fraction, the numerator of which will be the total number of such type or class
of security that such Holder or Other Holder owns, and the denominator of which
will be the total number of such type or class of security owned by all Holders
and Other Holders that have requested inclusion of such type or class of
security in the registration.
(c) The Company or securityholders having the right to require the
Company to register their shares, as the case may be, shall, in its or their
sole discretion, select the managing underwriter or underwriters, if any, that
are to undertake the sale and distribution of the Registrable Securities to be
included in a registration statement filed under the provisions of this Section
3.
(d) The right to registration provided in this Section 4 is in addition
to and not in lieu of the registration rights provided in Sections 2 and 3.
5. Obligations of the Company. Whenever required to effect the registration
of any Registrable Securities under this Agreement, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement on such form
as the Company deems appropriate with respect to such Registrable Securities and
use its best efforts to cause such registration statement to become effective.
With respect to registration statements filed pursuant to Sections 2 or 4 of
this Agreement, upon the request of the Holders of a majority of the Registrable
Securities registered thereunder the Company shall keep such registration
statement effective for up to 180 days, or such shorter period as is reasonably
required to dispose of all securities covered by such registration statement;
provided that the Company shall keep a registration statement filed pursuant to
Section 2 effective for an additional 90 days if reasonably required to dispose
of all securities covered by such registration statement. With respect to any
registration statement filed pursuant to Section 3 hereof, which Registrable
Securities are intended to be offered on a continuous or delayed basis, such
180-day period shall be extended, if necessary, to keep the registration
statement effective until all such Registrable Securities are sold, provided
that Rule 415, or any successor rule under the Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules under
the Act governing the obligation to file a post-effective amendment permit, in
lieu of filing a post-effective amendment which (i) includes any prospectus
required by Section 10(a)(3) of the Act, or (ii) reflects facts or events
representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (i) and (ii) above to be contained in periodic
reports filed pursuant to Section 13 or 15(d) of the 1934 Act in the
registration statement.
(b) Permit the Holders to participate through counsel reasonably
acceptable to the Company in the preparation of such registration statement and,
if specifically requested by such counsel, in discussions between the Company
and the SEC or its staff with respect to such registration statement, and to
include in such registration statement material, furnished to the Company in
writing, that such counsel reasonably deems necessary to include in order to
avoid potential liability for the Holders;
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(c) Make available for inspection by any selling Holder of Registrable
Securities, any managing underwriter participating in any disposition pursuant
to such registration statement, and any attorney, accountant or other agent
retained by the Company or managing underwriter, all financial and other records
and pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such selling Holder, underwriter,
attorney, accountant or agent in connection with such registration statement;
(d) Notify the Holders promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or of
additional information;
(e) Prepare and file with the SEC, and promptly notify the Holders of the
filing of, such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement and as may
be necessary to keep such registration statement effective for that period of
time specified in Section 5(a) of this Agreement.
(f) Prepare and file with the SEC promptly upon the request of any such
Holders, any amendments or supplements to such registration statement or
prospectus which, in the reasonable opinion of counsel for such Holders, is
required under the Act or the rules and regulations thereunder in connection
with the distribution of the Registrable Securities by such Holders.
(g) Not file any amendment or supplement to the registration statement or
prospectus to which any Holders shall reasonably object after having been
furnished a copy a reasonable time prior to the filing thereof.
(h) Notify the Holders promptly after it has received notice of the time
when such registration statement has become effective or any supplement to any
prospectus forming a part of such registration statement has been filed.
(i) Advise each Holder promptly after it has received notice or obtained
knowledge thereof of the issuance of any stop order by the SEC suspending the
effectiveness of any such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued.
(j) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(k) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business, to file a general consent
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to service of process, or to become subject to tax liability in any such states
or jurisdictions, or to agree to any restrictions as to the conduct of its
business in the ordinary course thereof.
(l) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering, together with each Holder
participating in such underwritten offering, as provided in Section 6(c).
(m) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement 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, as then in effect, includes an untrue statement of a
material fact or omits 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.
(n) Prepare and promptly file with the SEC, and promptly notify such
Holders or their counsel of the filing of, any amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event has occurred as
the result of which any such prospectus must be amended in order that it does
not make any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(o) In case any of such Holders or any underwriter for any such Holders
is required to deliver a prospectus at a time when the prospectus then in effect
may no longer be used under the Act, prepare promptly upon request such
amendment or amendments to such registration statement and such prospectus as
may be necessary to permit compliance with the requirements of the Act.
(p) If any of the Registrable Securities are then listed on any
securities exchange, approved for quotation on The Nasdaq Stock Market, Inc. or
other trading market, the Company will cause all such Registrable Securities
covered by such registration statement to be listed or approved for quotation on
such exchange, The Nasdaq Stock Market, Inc. or other trading market.
(q) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion of the counsel representing the
Company for the purposes of such registration, addressed to the underwriters and
in form and substance as is customarily given to underwriters in an underwritten
public offering, and (ii) a letter from the independent certified public
accountants of the Company addressed to the underwriters, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering.
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6. Obligations of Holders. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
each of the selling Holders shall:
(a) Furnish to the Company such information regarding themselves, the
Registrable Securities held by them, the intended method of sale or other
disposition of such securities, the identity of and compensation to be paid to
any underwriters proposed to be employed in connection with such sale or other
disposition if the registration is pursuant to Section 2 or 3, and such other
information as may reasonably be required to effect the registration of their
Registrable Securities.
(b) Notify the Company, at any time when a prospectus relating to
Registrable Securities covered by a registration statement is required to be
delivered under the Act, of the happening of any event with respect to such
selling Holder as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits 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.
(c) In the event of any underwritten public offering, the right of any
Holder to include his, her, or its Registrable Securities in such registration
shall be conditioned upon such Holder participating in such underwriting, and
each participating Holder shall enter into and perform its obligations under the
underwriting agreement for such offering, and if requested to do so by the
underwriters managing such offering, each Holder shall enter into a customary
holdback agreement.
7. Registration Expenses. The Company shall bear and pay all expenses
incurred in connection with registrations, filings, or qualifications pursuant
to this Agreement (other than underwriting discounts and commissions with
respect to Registrable Securities included in such registration and any fees and
costs of the Holders' legal counsel or other advisors), including (without
limitation) all registration, filing, and qualification fees, Blue Sky fees and
expenses, printers' and accounting fees, costs of approval of quotation on The
Nasdaq Stock Market, Inc. or listing on other securities exchange or trading
market, costs of furnishing such copies of each preliminary prospectus, final
prospectus, and amendments thereto as each Holder may reasonably request, and
fees and disbursements of counsel for the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2 or 3 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case the Holders participating
in such offering and favoring such withdrawal shall bear such expenses);
provided further, however, that if such registration request has been withdrawn
by virtue of a material adverse change in the condition, business, or prospects
of the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such expenses and shall retain
their rights pursuant Section 2 or 3.
8. Indemnification and Contribution. In the event any Registrable
Securities are included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder, the
officers and directors of each Holder, any underwriter (as defined in the Act)
for such Holder, and each
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person, if any, who controls such Holder or underwriter within the meaning of
the Act or the Exchange Act, for, from, and against any losses, claims, damages,
or liabilities (joint or several) to which such person or persons may become
subject under the Act, the Exchange Act, or other federal or state law, insofar
as such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any Violation, and the Company will reimburse
each such Holder, officer or director, underwriter, or controlling person for
any legal or other expenses reasonably incurred by such person or persons in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the Company shall not be liable in
any such loss, claim, damage, liability, or action to the extent that it arises
out of or is based upon a Violation that occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, underwriter, or controlling person.
(b) Each selling Holder will indemnify and hold harmless the Company,
each of its officers and directors, and each person, if any, who controls the
Company within the meaning of the Act, any underwriter, and any other Holder
selling securities in such registration statement or any of its directors or
officers or any person who controls such other Holder, for, from, and against
any losses, claims, damages, or liabilities (joint or several) to which the
Company or any such officer, director, controlling person, or underwriter or
controlling person or other Holder may become subject, under the Act, the
Exchange Act, or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such officer, director, controlling
person, underwriter or controlling person, other Holder, officer, director, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Holder (such consent not to be
unreasonably withheld). Notwithstanding anything to the contrary herein
contained, a Holder's indemnity obligation, in such person's capacity as a
Holder, shall be limited to the net proceeds received by such Holder from the
offering out of which the indemnity obligation arises.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 8, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnified party, except
that such fees and expenses shall be paid by the indemnifying party if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the
11
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 8, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 8.
(d) To the extent the indemnification from the indemnifying party
provided for in this Section 8 is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the 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, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and indemnified party on the other hand in connection with
the statements, omissions, or actions which resulted in such losses, claims,
damages, liabilities, or expenses, as well as any other relevant equitable
considerations. The relative fault of the such indemnifying party and the
indemnified party 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 party, and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities,
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 8(c), any legal and other fees and expenses
reasonably incurred by such indemnified party in connection with any
investigation or proceedings. 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 this Section 8(d).
Notwithstanding the provisions of this Section 8(d), no Holder of Registrable
Securities shall be required to contribute any amount in excess of the amount by
which the total proceeds from the sale of Registrable Securities by such Holder
(net of all underwriting discounts and commissions) pursuant to the registration
statement that gives rise to such obligation to contribute exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. To the extent indemnification is available under this Section
8, the indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 8(a) or (b), as the case may be, without regard to
the relative fault of said indemnifying parties or indemnified party or any
other equitable consideration provided for in this Section 8(d).
(e) The provisions of this Section 8 shall be applicable to each
registration pursuant to this Agreement, shall be in addition to any liability
that any party may have to any other party, and shall be a continuing right and
shall survive the registration and sale of any of the Registrable Securities
hereunder and the expiration or termination of this Agreement.
9. Reports Under the 1934 Act. With a view to making available to the
Holders the benefits of Form S-3 and Rule 144 promulgated under the Act, the
Company agrees at all times after ninety (90) days after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public to use its best efforts to:
12
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Act and the Exchange Act; and
(c) furnish to any Holder, as long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, the Act, and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC that permits the selling of any such
securities without registration or pursuant to such form.
10. Limitation on Subsequent Registration Rights. From and after the date
hereof, the Company shall not, without the prior written consent of the Holders
of a majority of the outstanding Registrable Securities, enter into any
agreement with any holder or prospective holder of any securities of the Company
that would allow such holder or prospective holder to require the Company to
include shares or securities in any registration initiated under this Agreement,
unless under the terms of such agreement such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of such securities will not reduce the amount of Registrable
Securities that is included in such registration.
11. Amendment and Waiver. This Agreement may not be modified or amended
other than by an agreement in writing. Any amendment or waiver of any provision
under this Agreement may be effected only with the written consent of the
Company and the Holders of at least a majority of the Registrable Securities
then outstanding.
12. Remedies.
(a) The Company agrees that time is of the essence of each of the
covenants contained herein and that, in the event of a dispute hereunder, this
Agreement is to be interpreted and construed in a manner that will enable the
Holders to sell their Registrable Securities as quickly as possible after such
Holders have indicated to the Company that they desire to have their Registrable
Securities registered. Any delay on the part of the Company not expressly
permitted under this agreement or waived by the Holders, whether material or
not, shall be deemed a material breach of this Agreement.
(b) The parties hereto acknowledge and agree that the breach of any part
of this Agreement may cause irreparable harm and that monetary damages alone may
be inadequate. The parties therefore agree that any party shall be entitled to
injunctive relief or such other applicable remedy as a court of competent
jurisdiction may provide. Nothing contained herein will be construed to limit
any party's right to any remedies at law, including recovery of damages for
breach of any part of this Agreement.
13. Joinder of Warrant Investors. Upon execution and delivery by a Warrant
Investor of a Joinder Agreement and Warrant Investor Amendment to LLC Agreement
upon
13
exercise of such Warrant Investor's Warrant, such Warrant Investor shall be
deemed to be an "Investor" under this Agreement, shall be entitled to all of the
rights and privileges, and shall be bound by all of the obligations, of an
Investor under this Agreement, as though such Warrant Investor had executed this
Agreement as of the date hereof.
14. Miscellaneous.
(a) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of the state of Missouri, notwithstanding
any Missouri or other conflict-of-law provisions to the contrary.
(b) Notices. All notices, requests, demands, and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made, and received when delivered against
receipt, upon receipt of a facsimile transmission, or upon actual receipt of
registered or certified mail, postage prepaid, return receipt requested,
addressed to the Company at its principal corporate offices, and addressed to
any Holder at the address of such Holder as it appears in the stock or other
securities ledger of the Company. Any party may alter the address to which
communications or copies are to be sent by giving notice of such change to each
of the other parties hereto in conformity with the provisions of this paragraph
for the giving of notice.
(c) Binding Nature of Agreement; Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective partners, shareholders, heirs, personal representatives, successors,
and assigns, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities; provided, however,
that any subsequent Holders of Registrable Securities shall receive such
assigned rights subject to all of the terms and conditions of this Agreement and
no assignment of rights hereunder shall increase the obligations of the Company
hereunder.
(d) Entire Agreement. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
(e) Section Headings. The section headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.
(f) Gender. Words used herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
(g) Indulgences, Not Waivers. Neither the failure nor any delay on the
part of a party to exercise any right, remedy, power, or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power, or privilege
14
preclude any other or further exercise of the same or any other right, remedy,
power, or privilege, nor shall any waiver of any right, remedy, power, or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power, or privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by the party asserted
to have granted such waiver.
(h) Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any facsimile, photographic or xerographic copy of this Agreement,
with all signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as of it were an executed counterpart of this
Agreement.
(i) Provisions Separable. The provisions of this Agreement are
independent and separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any reason any
other or others of them may be invalid or unenforceable in whole or in part.
(j) Termination. The rights granted pursuant to Sections 2 and 3 of this
Agreement shall terminate upon the third anniversary of the Final Subordination
Release Date, and the rights granted pursuant to Section 4 shall expire upon the
fifth anniversary of the Final Subordination Release Date.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, this Investors Rights Agreement has been duly executed
as of the day and year specified at the beginning hereof.
INERGY PARTNERS, LLC
/s/ XXXX X. XXXXXXX
By:______________________________
Xxxx X. Xxxxxxx, President and
Managing Member
KCEP VENTURES II, L.P.
By: KCEP II, L.C., its general partner
/s/ XXXXX X. XXXXXXX
By:_____________________________
Xxxxx X. Xxxxxxx
Managing Director of KCEP II, L.C.
MORAMERICA CAPITAL CORPORATION
By: InvestAmerica Investment Advisors, Inc.,
Agent
/s/ XXXXX X. XXXXXXX
By:_____________________________
Xxxxx X. Xxxxxxx, Vice President
NDSBIC, L.P.
By: InvestAmerica ND, L.L.C., General Partner
By: InvestAmerica ND Management, Inc.
/s/ XXXXX X. XXXXXXX
By:_____________________________
Xxxxx X. Xxxxxxx, Vice President
SIGNATURE PAGE TO
INVESTORS RIGHTS AGREEMENT
KANSAS VENTURE CAPITAL, INC., a Kansas
corporation
/s/ XXXX X. XXXXXX
By:_____________________________
Xxxx X. Xxxxxx, President
MIDSTATES CAPITAL, L.P., a Kansas limited
partnership
By: Midstates Partners, L.L.C., its general
partner
/s/ XXXX X. XXXXXXX
By:_____________________________
Xxxx X. Xxxxxxx, Principal
DIAMOND STATE VENTURES, L.P.
By: DSV Management LLC, its general partner
/s/ XXX X. XXXX
By:_____________________________
Xxx X. Xxxx, President
ROCKY MOUNTAIN MEZZANINE FUND, II LP
By: Rocky Mountain Capital Partners, LLP, as
general partner
/s/ XXXX X. XXXXX, XX.
By:_____________________________
Xxxx X. Xxxxx, Xx., Partner
FIRSTAR CAPITAL CORPORATION, an
Ohio corporation
/s/ XXXX XXXXXXX
By:_____________________________
Xxxx Xxxxxxx
SIGNATURE PAGE TO
INVESTORS RIGHTS AGREEMENT
EAGLE FUND I, LP
By: Eagle Fund, LLC, its general partner
By: Mississippi Valley Capital Company, its sole
member
/s/ XXXXX X. XXXXXX
By: ______________________________
Xxxxx X. Xxxxxx, President
RNG INVESTMENTS, L.P., a Delaware Limited
Partnership
/s/ XXXXXXX X. XXXXX, XX.
By: _________________________________
Xxxxxxx X. Xxxxx, Xx., Managing General
Partner
SIGNATURE PAGE TO
INVESTORS RIGHTS AGREEMENT
