DCP MIDSTREAM PARTNERS, LP 2,500,000 Common Units Representing Limited Partner Interests UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Version
2,500,000 Common Units
Representing Limited Partner Interests
Barclays Capital inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters,
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Wells Fargo Securities, LLC
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
DCP Midstream Partners, LP, a Delaware limited partnership (the “Partnership”), proposes to
issue and sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for
whom you (the “Representatives”) are acting as representatives, the number of common units
representing limited partner interests (“Common Units”) in the Partnership set forth in Schedule I
hereto (said Common Units to be issued and sold by the Partnership being hereinafter called the
“Firm Units”). The Partnership also proposes to grant to the Underwriters an option to purchase up
to the number of additional Common Units set forth in Schedule I hereto to cover over-allotments,
if any (the “Option Units”; the Option Units, together with the Firm Units, being hereinafter
called the “Units”). To the extent there are no additional Underwriters listed on Schedule I other
than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus, the Final Prospectus or the Disclosure Package shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the Registration Statement, the issue
date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, or the Execution
Time with respect to the Disclosure Package, as the case may be; and any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 21 hereof.
This is to confirm the agreement among the Partnership, DCP Midstream GP, LP, a Delaware
limited partnership (the “General Partner”), DCP Midstream GP, LLC, a Delaware limited liability
company (“DCP Midstream GP, LLC” and collectively with the Partnership and the General Partner, the
“DCP Parties”), and the Underwriters concerning the purchase of the Units from the Partnership by
the Underwriters. The Partnership, the General Partner, DCP Midstream GP, LLC, DCP Midstream
Operating, LP, a Delaware limited partnership (the “Operating Partnership”), and DCP Midstream
Operating, LLC, a Delaware limited liability company (the “OLP GP”), are herein collectively
referred to as the “Partnership Entities.” The subsidiaries of the Operating Partnership listed on
Schedule III hereto are referred to collectively as the “Operating Subsidiaries” and individually
as an “Operating Subsidiary”.
1. Representations, Warranties and Agreements of the DCP Parties. Each of the DCP Parties,
jointly and severally, represents, warrants and agrees:
(a) Registration. The Partnership meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration statement (the file
number of which is set forth in Schedule I hereto) on Form S-3, including a related Base
Prospectus, for registration under the Act of the offering and sale of the Units. Such
Registration Statement, including any amendments thereto filed prior to the Execution
Time, has become effective and no stop order suspending the effectiveness of the
Registration Statement, any post-effective amendment thereto or any Rule 462(b)
Registration Statement has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the DCP Parties, threatened by the Commission. The
Partnership may have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Units, each of which has previously been furnished to you.
The Partnership will file with the Commission a Final Prospectus relating to the Units in
accordance with Rule 424(b). As filed, such Final Prospectus shall contain all
information required by the Act and the Rules and Regulations, and, except to the extent
the Representatives shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Partnership has advised you, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) No Material Misstatements or Omissions in Registration Statement or Final
Prospectus. On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein) and on any date on which Option Units are
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purchased, if such date is not the Closing Date (a “settlement date”), the Final
Prospectus (and any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective rules
thereunder; on each Effective Date and at the Execution Time, the Registration Statement
did not and will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements
therein not misleading; and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date and any settlement date, the Final Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
Partnership makes no representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in writing to the
Partnership by or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or any supplement
thereto), it being understood and agreed that the only such information furnished by or
on behalf of any Underwriter consists of the information described as such in Section 8
hereof.
(c) No Material Misstatements or Omissions in Disclosure Package. The Disclosure
Package and each electronic road show, when taken together as a whole with the Disclosure
Package, did not, as of the Execution Time, contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information furnished to the
Partnership by any Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section 8 hereof.
(d) Documents Incorporated by Reference. The documents incorporated by reference in
the Registration Statement or any Preliminary Prospectus did not, and the Final
Prospectus when it is first filed in accordance with Rule 424(b) and any further
documents filed and incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(e) Eligible Issuer. (i) At the earliest time after the filing of the Registration
Statement that the Partnership or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2)) of the Units and (ii) as of the Execution Time
(with such date being used as the determination date for purposes of this clause (ii)),
the Partnership was not and is not an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to Rule 405 that it is not
necessary that the Partnership be considered an Ineligible Issuer.
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(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus does not
include any information that conflicts with the information contained in the Registration
Statement, including any document incorporated therein by reference and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written information furnished to the
Partnership by any Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section 8 hereof.
(g) Free Writing Prospectus Conforms to Requirements of the Act. Each Issuer Free
Writing Prospectus conformed or will conform in all material respects to the requirements
of the Act and the Rules and Regulations on the date of first use, and the Partnership
has complied with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Partnership has not made any offer
relating to the Units that would constitute an Issuer Free Writing Prospectus without the
prior written consent of the Representatives. The Partnership has retained in accordance
with the Rules and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations. The Partnership filed the
Registration Statement before using any Issuer Free Writing Prospectus and each Issuer
Free Writing Prospectus, if any, was accompanied or preceded by a Preliminary Prospectus
satisfying the requirements of Section 10 of the Act. The Partnership has taken all
actions necessary so that any road show (as defined in Rule 433) in connection with the
offering of the Units will not be required to be filed pursuant to the Rules and
Regulations.
(h) Formation and Qualification of the Partnership Entities. Each of the
Partnership Entities has been duly formed or incorporated and is validly existing in good
standing as a limited partnership or limited liability company, as the case may be, under
the laws of the State of Delaware with full partnership or limited liability company
power and authority, as the case may be, necessary to own or lease its properties
currently owned or leased or to be owned or leased on the Closing Date and each
settlement date and to conduct its business as currently conducted or to be conducted on
the Closing Date and each settlement date, in each case in all material respects as
described in the Disclosure Package and the Final Prospectus, and each of them is duly
registered or qualified to do business and is in good standing as a foreign limited
partnership or limited liability company, as the case may be, in each jurisdiction in
which its ownership or lease of property or the conduct of its businesses requires such
registration or qualification, except where the failure so to register or qualify would
not reasonably be expected, individually or in the aggregate, to (i) have a material
adverse effect on the condition (financial or otherwise), partners’ equity, stockholders’
equity, members’ equity, results of operations, properties, business or prospects of the
Partnership Entities and Operating Subsidiaries taken as a whole (a “Material Adverse
Effect”) or (ii) subject the limited partners of the Partnership to any material
liability or disability.
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(i) Formation and Qualification of the Operating Subsidiaries. Each of the
Operating Subsidiaries has been duly formed or incorporated and is validly existing in
good standing as a limited partnership, limited liability company or corporation, as the
case may be, under the laws of its jurisdiction of organization with full partnership,
limited liability company or corporate power and authority, as the case may be, necessary
to own or lease its properties currently owned or leased or to be owned or leased on the
Closing Date and each settlement date and to conduct its business as currently conducted
or to be conducted on the Closing Date and each settlement date, in each case in all
material respects as described in the Disclosure Package and the Final Prospectus, except
where the failure to be in good standing would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect. Each Operating Subsidiary is duly
registered or qualified to do business and is in good standing as a foreign limited
partnership, limited liability company or corporation, as the case may be, in each
jurisdiction in which its ownership or lease of property or the conduct of its businesses
requires such registration or qualification, except where the failure so to register or
qualify would not reasonably be expected, individually or in the aggregate, to (i) have a
Material Adverse Effect or (ii) subject the limited partners of the Partnership to any
material liability or disability.
(j) Power and Authority to Act as a General Partner. The General Partner has, and
on the Closing Date and each settlement date will have, full limited partnership power
and authority to act as general partner of the Partnership in all material respects as
described in the Disclosure Package and Final Prospectus. DCP Midstream GP, LLC has, and
on the Closing Date and each settlement date will have, full limited liability company
power and authority to act as general partner of the General Partner in all material
respects as described in the Disclosure Package and the Final Prospectus. The OLP GP
has, and on the Closing Date and each settlement date will have, full limited liability
company power and authority to act as general partner of the Operating Partnership in all
material respects as described in the Disclosure Package and Final Prospectus.
(k) Ownership of the General Partner Interest in the Partnership. The General
Partner is, and on the Closing Date and each settlement date will be, the sole general
partner of the Partnership with a general partner interest represented by 373,892 general
partner units in the Partnership; such general partner units have been duly authorized
and validly issued in accordance with the agreement of limited partnership of the
Partnership (as the same may be amended or restated at or prior to the Closing Date, the
“Partnership Agreement”); and the General Partner owns such general partner units free
and clear of all liens, encumbrances, security interests, charges and other claims
(collectively, “Liens”) (except restrictions on transferability and other Liens as
described in the Disclosure Package, the Final Prospectus or the Partnership Agreement).
(l) Capitalization; Ownership of the Sponsor Units and the Incentive Distribution
Rights. As of the date hereof (and prior to the issuance of the Firm Units as
contemplated by this Agreement), the issued and outstanding limited
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partnership interests of the Partnership consists of 31,733,183 Common Units and the
incentive distribution rights (as defined in the Partnership Agreement) (the “Incentive
Distribution Rights” and, together with the Common Units, the “Partnership Interests”).
DCP LP Holdings, LLC (“DCP LP Holdings”), a Delaware limited liability company and direct
and indirect wholly owned subsidiary of DCP Midstream, LLC, a Delaware limited liability
company (“DCP Midstream”), owns, and on the Closing Date and each settlement date will
own, 11,478,201 Common Units (the “LP Holdings Sponsor Units”) and the General Partner
owns, and on the Closing Date and each settlement date will own, 268,250 Common Units
(together with the LP Holdings Sponsor Units, the “Sponsor Units”) and 100% of the
Incentive Distribution Rights; all such Sponsor Units and Incentive Distribution Rights
are owned free and clear of all Liens except restrictions on transferability described in
the Disclosure Package and the Final Prospectus or contained in the Partnership
Agreement. All of such Partnership Interests and the limited partner interests
represented thereby have been duly authorized and validly issued in accordance with the
Partnership Agreement, and are fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by Sections
17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the “Delaware
LP Act”)).
(m) Valid Issuance of the Units. At the Closing Date, there will be issued to the
Underwriters the Firm Units (assuming no purchase by the Underwriters of Option Units on
the Closing Date); if the option provided for in Section 2(b) hereof is exercised, at the
Closing Date or the settlement date for the Option Units, as the case may be, the Firm
Units and the Option Units, as the case may be, and the limited partner interests
represented thereby, will be duly and validly authorized by the Partnership Agreement
and, when issued and delivered against payment therefor in accordance with this
Agreement, will be validly issued, fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as such nonassessability may be
affected by Section 17-607 and 17-804 of the Delaware LP Act).
(n) Ownership of the General Partner. DCP Midstream GP, LLC is, and on the Closing
Date and each settlement date will be, the sole general partner of the General Partner,
and DCP Midstream and DCP LP Holdings are, and on the Closing Date and each settlement
date will be, the limited partners of the General Partner; such partnership interests
have been duly authorized and validly issued in accordance with the agreement of limited
partnership of the General Partner (as the same may be amended or restated at or prior to
the Closing Date, the “GP Partnership Agreement”) and, with respect to DCP Midstream’s
and DCP LP Holdings’ limited partnership interests in the General Partner, are fully paid
(to the extent required under the GP Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by Section 17-607 and 17-804 of the Delaware LP
Act); and DCP Midstream GP, LLC, DCP Midstream and DCP LP Holdings each own their
respective partnership interests free and clear of all Liens (except restrictions on
transferability as described in the Final Prospectus or contained in the GP Partnership
Agreement).
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(o) Ownership of DCP Midstream GP, LLC. DCP Midstream is, and on the Closing Date
and each settlement date will be, the sole member of DCP Midstream GP, LLC with a 100%
membership interest in DCP Midstream GP, LLC; such membership interest has been duly
authorized and validly issued in accordance with the limited liability company agreement
of DCP Midstream GP, LLC (as the same may be amended or restated at or prior to the
Closing Date, the “DCP Midstream GP, LLC Limited Liability Company Agreement”) and is
fully paid (to the extent required by the DCP Midstream GP, LLC Limited Liability Company
Agreement) and nonassessable (except as such nonassessability may be affected by Section
18-607 and 18-804 of the Delaware Limited Liability Company Act (the “Delaware LLC
Act”)); and DCP Midstream owns such membership interest free and clear of all Liens
(except restrictions on transferability contained in the DCP Midstream GP, LLC Limited
Liability Company Agreement).
(p) Ownership of the OLP GP. The Partnership is, and on the Closing Date and each
settlement date will be, the sole member of the OLP GP with a 100% membership interest in
the OLP GP; such membership interest has been duly authorized and validly issued in
accordance with the limited liability company agreement of the OLP GP (as the same may be
amended or restated at or prior to the Closing Date, the “OLP GP Limited Liability
Company Agreement”) and is fully paid (to the extent required by the OLP GP Limited
Liability Company Agreement) and nonassessable (except as such nonassessability may be
affected by Section 18-607 and 18-804 of the Delaware LLC Act); and the Partnership owns
such membership interest free and clear of all Liens (except for restrictions on
transferability contained in the OLP GP Limited Liability Company Agreement).
(q) Ownership of the Operating Partnership. OLP GP is, and on the Closing Date and
each settlement date will be, the sole general partner of the Operating Partnership and
the Partnership is, and on the Closing Date and each settlement date will be, the sole
limited partner of the Operating Partnership; such partnership interests have been duly
authorized and validly issued in accordance with the partnership agreement of the
Operating Partnership (as the same may be amended or restated at or prior to the Closing
Date, the “OLP Partnership Agreement”) and, with respect to the Partnership’s limited
partner interest in the Operating Partnership, are fully paid (to the extent required
under the OLP Partnership Agreement) and nonassessable (except as such nonassessability
may be affected by Section 17-607 and 17-804 of the Delaware LP Act); and the OLP GP and
the Partnership each own their respective partnership interests free and clear of all
Liens (except restrictions on transferability as described in the Disclosure Package and
the Final Prospectus or the OLP Partnership Agreement and Liens created pursuant to the
Amended and Restated Credit Agreement, dated June 21, 2007, among the Partnership, the
Operating Partnership and Wachovia Bank, National Association (the “Credit Agreement”)).
(r) Ownership of the Operating Subsidiaries. Except as described in the Disclosure
Package and the Final Prospectus, the Operating Partnership directly or indirectly owns,
and on the Closing Date and each settlement date will own, the respective percentages of
the outstanding membership interests or partnership interests,
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as the case may be, of each of the Operating Subsidiaries set forth on Schedule III;
all such membership interests or partnership interests have been duly authorized and
validly issued in accordance with the certificate of formation and limited liability
company agreement, in the case of a limited liability company, certificate of limited
partnership and partnership agreement, in the case of a limited partnership, or
partnership agreement, in the case of a general partner, of each Operating Subsidiary
(collectively the “Operating Subsidiaries Operative Documents” and, as to each individual
Operating Subsidiary, the “Operating Subsidiary Operative Document”) and (other than the
general partnership interest in Xxxxxxx Pipeline Company, a Michigan general partnership
(“Xxxxxxx Pipeline”)) are fully paid (to the extent required in the applicable Operating
Subsidiaries Operative Documents) and nonassessable (except as such nonassessability may
be affected by Section 18-607 and 18-804 of the Delaware LLC Act or Section 17-607 and
17-804 of the Delaware LP Act, as the case may be). The owners of the Operating
Subsidiaries own all such membership interest or partnership interests listed on Schedule
III free and clear of all Liens (except restrictions on transferability as set forth in
the Operating Subsidiaries Operative Documents and for Liens created pursuant to the
Credit Agreement).
(s) Minority-Owned Entities. The Operating Partnership directly or indirectly owns,
and on the Closing Date and each settlement date will own, 45% of the partnership
interests of Black Lake Pipe Line Company, a Texas general partnership (“Black Lake”),
40% of the membership interests in Discovery Producer Services LLC, a Delaware limited
liability company (“Discovery”), and 50% of the membership interests in Pine Tree Propane
Limited Liability Company, a Maine limited liability company (“Pine Tree”), and Discovery
owns, and on the Closing Date and each settlement date will own, 100% of the membership
interests in Discovery Gas Transmission LLC, a Delaware limited liability company
(“Discovery Sub” and together with Black Lake, Discovery and Pine Tree, the
“Minority-Owned Entities”). To the knowledge of the DCP Parties, the representations and
warranties regarding the Operating Subsidiaries in Sections 1(i), (y), (cc), (gg)-(ll),
(oo)-(qq) and (ww)-(zz), when the term “Operating Subsidiaries” is read to include the
Minority-Owned Entities, are true and correct as of the Execution Time and will be true
and correct as of the Closing Date and each settlement date.
(t) No Other Subsidiaries. Neither the Partnership nor any of its subsidiaries own,
directly or indirectly, any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association or other entity, other
than as set forth in Exhibit 21.1 to the Partnership’s Annual Report on Form 10-K for the
most recent fiscal year. Other than its ownership of its 1.2% general partner interest in
the Partnership, its ownership of 268,250 Common Units and the Incentive Distribution
Rights, the General Partner does not own, and at the Closing Date and each settlement
date will not own, directly or indirectly, any equity or long-term debt securities of any
corporation, partnership, limited liability company, joint venture, association or other
entity.
(u) No Preemptive Rights, Registration Rights or Options. Except as described in
the Disclosure Package and the Final Prospectus, there are no
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preemptive rights or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of any equity securities of, any of the
Partnership Entities. Neither the filing of the Registration Statement nor the offering
or sale of the Units as contemplated by this Agreement gives rise to any rights for or
relating to the registration of any Units or other securities of any of the Partnership
Entities other than as provided in the Disclosure Package and the Final Prospectus and
the Partnership Agreement or as have been waived or satisfied. Except as described in
the Disclosure Package and the Final Prospectus, there are no outstanding options or
warrants to purchase (A) any Common Units or other interests in the Partnership, (B) any
partnership interests in the General Partner or the Operating Partnership, or (C) any
membership interests in DCP Midstream GP, LLC or the OLP GP.
(v) Authority and Authorization. Each of the DCP Parties has all requisite
partnership or limited liability company power and authority, as the case may be, to
execute and deliver this Agreement and perform its respective obligations hereunder. The
Partnership has all requisite partnership power and authority to issue, sell and deliver
the Units, in accordance with and upon the terms and conditions set forth in this
Agreement, the Partnership Agreement, the Disclosure Package and the Final Prospectus.
On the Closing Date and each settlement date, all corporate, partnership and limited
liability company action, as the case may be, required to be taken by the Partnership
Entities or any of their respective stockholders, members or partners for the
authorization, issuance, sale and delivery of the Units, the execution and delivery by
the Partnership Entities of this Agreement and the consummation of the transactions
contemplated by this Agreement shall have been validly taken.
(w) Authorization of this Agreement. This Agreement has been duly authorized,
executed and delivered by each of the DCP Parties.
(x) Enforceability of Other Agreements.
(i) the Partnership Agreement has been duly authorized, executed and delivered
by the General Partner and is a valid and legally binding agreement of the General
Partner, enforceable against the General Partner in accordance with its terms;
(ii) the GP Partnership Agreement has been duly authorized, executed and
delivered by DCP Midstream GP, LLC and DCP Midstream and is a valid and legally
binding agreement of DCP Midstream GP, LLC and DCP Midstream, enforceable against
DCP Midstream GP, LLC and DCP Midstream in accordance with its terms;
(iii) the OLP Partnership Agreement has been duly authorized, executed and
delivered by the OLP GP and the Partnership and is a valid and legally binding
agreement of the OLP GP and the Partnership, enforceable against the Partnership in
accordance with its terms;
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(iv) the DCP Midstream GP, LLC Limited Liability Company Agreement has been
duly authorized, executed and delivered by DCP Midstream and is a valid and legally
binding agreement of DCP Midstream, enforceable against DCP Midstream in accordance
with its terms;
(v) the OLP GP Limited Liability Company Agreement has been duly authorized,
executed and delivered by the Partnership and is a valid and legally binding
agreement of the Partnership, enforceable against the Partnership in accordance with
its terms;
provided that, with respect to each agreement described in this Section 1(x) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
provided further; that the indemnity, contribution and exoneration provisions
contained in any of such agreements may be limited by applicable laws and public
policy.
The Partnership Agreement, the GP Partnership Agreement, the OLP Partnership
Agreement, the DCP Midstream GP, LLC Limited Liability Company Agreement and the OLP
GP Limited Liability Company Agreement, in each case, as they may be amended or
restated at or prior to the Closing Date, are herein collectively referred to as the
“Charter Documents.”
(y) No Conflicts. None of (i) the offering, issuance and sale by the Partnership of
the Units and the application of the net proceeds therefrom as described under “Use of
Proceeds” in the Disclosure Package and the Final Prospectus, (ii) the execution,
delivery and performance of this Agreement, and (iii) the consummation of the
transactions contemplated by this Agreement (A) conflicts or will conflict with or
constitutes or will constitute a violation of the certificate of limited partnership,
certificate of formation or Charter Documents of any of the Partnership Entities or the
Operating Subsidiaries Operative Documents, (B) conflicts or will conflict with or
constitutes or will constitute a breach or violation of, or a default under (or an event
which, with notice or lapse of time or both, would constitute such a default), any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which any of the Partnership Entities or the Operating Subsidiaries is a
party or by which any of them or any of their respective properties may be bound, (C)
violates or will violate any statute, law or regulation or any order, judgment, decree or
injunction of any court or governmental agency or body directed to any of the Partnership
Entities or the Operating Subsidiaries or any of their properties in a proceeding to
which any of them or their property is a party, or (D) results or will result in the
creation or imposition of any Lien upon any property or assets of any of the Partnership
Entities or the Operating Subsidiaries (other than Liens created pursuant to the Credit
Agreement), which conflicts, breaches, violations, defaults or Liens, in the case of
clauses (B), (C) or (D), would have, individually or in the aggregate, a Material Adverse
Effect.
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(z) No Consents. Except for (i) the registration of the Units under the Act, (ii)
such consents, approvals, authorizations, registrations or qualifications as may be
required under the Act, the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Units by the Underwriters, (iii)
such consents that have been, or prior to each settlement date will be, obtained, or, if
not obtained, would not reasonably be expected to have a Material Adverse Effect and (iv)
as disclosed in the Disclosure Package and the Final Prospectus, no consent, approval,
authorization or order of, or filing or registration with, any court or governmental
agency or body having jurisdiction over the Partnership Entities or any of their
respective properties is required in connection with the offering, issuance and sale by
the Partnership of the Units and the application of the net proceeds therefrom as
described under “Use of Proceeds” in the Disclosure Package and the Final Prospectus, the
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.
(aa) No Default. None of the Partnership Entities or any of the Operating
Subsidiaries (i) is in violation of its certificate or agreement of limited partnership,
limited liability company agreement, certificate of incorporation or bylaws or other
organizational documents, (ii) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject, or (iii) is
in violation of any law, statute, ordinance, administrative or governmental rule or
regulation applicable to it or of any order, judgment, decree or injunction of any court
or governmental agency or body having jurisdiction over it, or which default, violation
or failure in the case of clauses (ii) or (iii) would, if continued, have a Material
Adverse Effect, or could materially impair the ability of any of the DCP Parties to
perform their obligations under this Agreement. To the knowledge of the DCP Parties, no
third party to any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which any of the Partnership Entities or Operating Subsidiaries is a
party or by which any of them is bound or to which any of their properties is subject, is
in default under any such agreement, which default would, if continued, have a Material
Adverse Effect.
(bb) Conformity to Description of Units. The Units, when issued and delivered in
accordance with the terms of the Partnership Agreement against payment therefor as
provided herein, will conform in all material respects to the descriptions thereof
contained in the Disclosure Package and the Final Prospectus.
(cc) No Material Adverse Change. No Partnership Entity or Operating Subsidiary has
sustained, since the date of the latest audited financial statements included in the
Disclosure Package and the Final Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order, investigation or decree,
otherwise than as set forth or contemplated in the Disclosure Package and the Final
Prospectus; and, since such date, there has not been
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any change in the capitalization or increase in long-term debt of any Partnership
Entity or Operating Subsidiary or any adverse change, or any development involving, or
which may reasonably be expected to involve, individually or in the aggregate, a
prospective adverse change in or affecting the general affairs, properties, management,
condition (financial or otherwise), stockholders’ equity, partners’ equity, members’
equity, results of operations, properties business or prospects of the Partnership
Entities and Operating Subsidiaries, taken as a whole, in each case otherwise than as set
forth or contemplated in the Disclosure Package and the Final Prospectus or as could not
reasonably be expected to have a Material Adverse Effect. Since the date of the latest
audited financial statements included in the Disclosure Package and the Final Prospectus,
none of the Partnership Entities or Operating Subsidiaries has incurred any liability or
obligation, direct, indirect or contingent, or entered into any transactions, not in the
ordinary course of business, that, individually or in the aggregate, is material to the
Partnership Entities and Operating Subsidiaries, taken as a whole otherwise than as set
forth or contemplated in the Disclosure Package and the Final Prospectus.
(dd) Financial Statements. The historical financial statements (including the
related notes and supporting schedules) included in the Disclosure Package, the Final
Prospectus and the Registration Statement comply in all material respects with the
applicable requirements under the Act and present fairly in all material respects the
financial condition, results of operations and cash flows of the entities purported to be
shown thereby on the basis stated therein, at the dates and for the periods indicated,
and have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved. The other historical
financial and statistical information and data included in the Disclosure Package and the
Final Prospectus are, in all material respects, fairly presented.
(ee) Independent Public Accountants — Deloitte & Touche. Deloitte & Touche LLP, who
has certified certain financial statements of the Partnership Entities and the
Partnership’s predecessor, whose report appears in the Disclosure Package and the Final
Prospectus, was the independent registered public accounting firm with respect to the
Partnership Entities and the Partnership’s predecessor as required by the Act and the
Rules and Regulations and the rules and regulations of the Public Company Accounting
Oversight Board (the “PCAOB”) during the periods covered by the financial statements on
which they reported.
(ff) Independent Public Accountants — Ernst & Young. Ernst & Young LLP, who has
certified certain financial statements of Discovery, whose report appears in the
Disclosure Package and the Final Prospectus, was the independent registered public
accounting firm with respect to Discovery as required by the Act and the Rules and
Regulations and the rules and regulations of the PCAOB during the periods covered by the
financial statements on which they reported.
(gg) Title to Properties. On the Closing Date and each settlement date, the
Operating Partnership and the Operating Subsidiaries will have good and marketable title
to all real property and good title to all personal property (excluding
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easements or rights-of-way) described in the Disclosure Package and the Final
Prospectus to be owned by the Operating Partnership and the Operating Subsidiaries, in
each case free and clear of all Liens except (i) as described, and subject to the
limitations contained, in the Disclosure Package and the Final Prospectus, (ii) that
arise under the Credit Agreement, and (iii) Liens that would not have, individually or in
the aggregate, a Material Adverse Effect; provided that, with respect to any real
property and buildings held under lease by the Operating Partnership and the Operating
Subsidiaries, such real property and buildings are held under valid and subsisting and
enforceable leases with such exceptions as do not materially interfere with the use of
the properties of the Partnership Entities taken as a whole as they have been used in the
past as described in the Disclosure Package and the Final Prospectus and are proposed to
be used in the future as described in the Disclosure Package and the Final Prospectus.
(hh) Rights-of-Way. On the Closing Date and each settlement date, the Operating
Partnership and the Operating Subsidiaries will have such easements or rights-of-way from
each person (collectively, “rights-of-way”) as are necessary to conduct their business in
the manner described, and subject to the limitations contained, in the Disclosure Package
and the Final Prospectus, except for (i) qualifications, reservations and encumbrances
that would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect and (ii) such rights-of-way that, if not obtained, would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; other than as set forth, and subject to the limitations contained, in the
Disclosure Package and the Final Prospectus, the Operating Partnership and the Operating
Subsidiaries have fulfilled and performed all their material obligations with respect to
such rights-of-way and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or would result in any impairment of
the rights of the holder of any such rights-of-way, except for such revocations,
terminations and impairments that would not have a Material Adverse Effect; and, except
as described in the Disclosure Package and the Final Prospectus, none of such
rights-of-way contains any restriction that is materially burdensome to the Operating
Partnership and the Operating Subsidiaries, taken as a whole.
(ii) Insurance. Except as disclosed in the Disclosure Package and the Final
Prospectus, DCP Midstream maintains insurance covering the properties, operations,
personnel and businesses of the Partnership Entities and the Operating Subsidiaries
against such losses and risks and in such amounts as is reasonably adequate for the
conduct of their respective businesses and the value of their respective properties and
generally consistent with the insurance coverage maintained for similarly situated
businesses and properties. Neither DCP Midstream nor any of the Partnership Entities has
received notice from any insurer or agent of such insurer that substantial capital
improvements or other expenditures will have to be made in order to continue such
insurance, and all such insurance is outstanding and duly in force on the date hereof and
will be outstanding and duly in force on the Closing Date and each settlement date.
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(jj) Intellectual Property. Except for such exceptions that would not have,
individually or in the aggregate, a Material Adverse Effect, each of the Partnership
Entities and Operating Subsidiaries owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their respective
businesses and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict with, any
such rights of others.
(kk) Legal Proceedings or Contracts to be Described or Filed. There are no legal or
governmental proceedings pending or, to the knowledge of the DCP Parties, threatened
against any of the Partnership Entities or the Operating Subsidiaries, or to which any of
the Partnership Entities or Operating Subsidiaries is a party, or to which any of their
respective properties is subject, that are required to be described in the Registration
Statement or the Disclosure Package and are not described as required; and there are no
agreements, contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or Disclosure Package or to be filed as exhibits
to the Registration Statement by the Act or by the Rules and Regulations that have not
been described in the Registration Statement or Disclosure Package as required or filed
as exhibits to the Registration Statement as required.
(ll) Certain Relationships and Related Transactions. No relationship, direct or
indirect, exists between or among any Partnership Entity or Operating Subsidiary on the
one hand, and any director, officer, stockholder, affiliate, customer or supplier of any
Partnership Entity or Operating Subsidiary on the other hand that is required to be
described in the Disclosure Package and the Final Prospectus and is not so described.
(mm) Xxxxxxxx-Xxxxx Act of 2002. The Partnership and, to the knowledge of the DCP
Parties, the directors and officers of the General Partner, are in compliance in all
material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002, the
Rules and Regulations thereunder and the rules of the New York Stock Exchange (the
“NYSE”) that are effective and applicable to the Partnership.
(nn) Statistical Data. Any statistical and market-related data included in the
Registration Statement, the Disclosure Package and the Final Prospectus are based on or
derived from sources that the Partnership believes to be reliable and accurate, and the
Partnership has obtained the written consent to the use of such data from such sources to
the extent required.
(oo) No Labor Dispute. No labor dispute with the employees of DCP Midstream or its
affiliates or any Partnership Entity or Operating Subsidiary exists or, to the knowledge
of each DCP Party, is imminent or threatened and none of the DCP
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Parties is aware of any existing, imminent or threatened labor disturbance by the
employees of any of its lessors that would individually or in the aggregate, be
reasonably likely to result in a Material Adverse Effect.
(pp) Tax Returns. Each of the Partnership Entities and Operating Subsidiaries has
filed (or has obtained extensions with respect to) all federal, state and local income
and franchise tax returns required to be filed through the date of this Agreement, which
returns are correct and complete in all material respects, except in any case in which
the failure to so file would not reasonably be expected to have a Material Adverse Effect
and has timely paid all taxes due thereon, other than those (i) that are being contested
in good faith and for which adequate reserves have been established in accordance with
generally accepted accounting principles or (ii) that, if not paid, would not have a
Material Adverse Effect.
(qq) Books and Records. Each Partnership Entity and Operating Subsidiary makes and
keeps books and records which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of assets. The General Partner and the Partnership
maintain systems of “internal control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and
have been designed by, or under the supervision of, their principal executive and
principal financial officers, or persons performing similar functions, to provide
reasonable assurances that (A) receipts and expenditures are made in accordance with
management’s general or specific authorization, (B) transactions are recorded as
necessary to permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain accountability for the Partnership’s
assets, (C) access to the Partnership’s assets is permitted only in accordance with
management’s general or specific authorization and (D) the reported accountability for
the Partnership’s assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(rr) Disclosure Controls. The General Partner and the Partnership have established
and maintain “disclosure controls and procedures” (as such term is defined in Rule
13a-15(e) and 15d-15(e) under the Exchange Act) which (i) are designed to ensure that
material information required to be disclosed by the Partnership in reports that it files
under the Exchange Act is accumulated and communicated to the General Partner’s principal
executive officer and its principal financial officer or persons performing similar
functions, by others within those entities as appropriate to allow timely decisions
regarding required disclosure, and the information required to be disclosed is recorded,
processed, summarized and reported within the time periods specified in the Commission’s
rules and forms; (ii) have been evaluated for effectiveness as of the end of the period
covered by the Partnership’s most recent annual report filed with the Commission; and
(iii) are effective in all material respects in achieving reasonable assurances that the
Partnership’s desired control objectives as described in Item 9A of the Partnership’s
Annual Report on Form 10-K for the period ended December 31, 2008 (the “2008 Annual
Report”) have been met.
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(ss) No Deficiency in Internal Control Over Financial Reporting. Based on the
evaluation of its disclosure controls and procedures conducted in connection with the
preparation and filing of the 2008 Annual Report, neither the Partnership nor the General
Partner is aware of (i) any significant deficiencies or material weaknesses in the design
or operation of the Partnership’s internal control over financial reporting that are
likely to adversely affect the Partnership’s ability to record, process, summarize and
report financial data; or (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Partnership’s internal control over
financial reporting.
(tt) No Changes in Internal Control Over Financial Reporting. Since the date of the
most recent evaluation of the disclosure controls and procedures described in Section
1(rr) hereof, there have been no significant changes in the Partnership’s internal
control over financial reporting that materially affected or are reasonably likely to
materially affect the Partnership’s internal control over financial reporting.
(uu) Foreign Corrupt Practices Act, Etc. No Partnership Entity, nor, to the
knowledge of the DCP Parties, any director, officer, agent, employee or affiliate of any
Partnership Entity or any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the
“FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA.
(vv) Office of Foreign Assets Control. No Partnership Entity, nor, to the knowledge
of the DCP Parties, any director, officer, agent, employee or affiliate of any
Partnership Entity or any of its subsidiaries is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and the Partnership will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by
OFAC.
(ww) Environmental Compliance. Except as disclosed in the Disclosure Package and
the Final Prospectus, the Partnership Entities and the Operating Subsidiaries (i) are in
compliance with any and all applicable federal, state and local laws and regulations
relating to the prevention of pollution or the protection of the environment or imposing
liability or standards of conduct concerning any Hazardous Materials (as defined below)
(“Environmental Laws”), (ii) have received all permits required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) are in compliance with
all terms and conditions of any such
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permits and (iv) do not have any liability in connection with the release into the
environment of any Hazardous Material (as defined below), except where such noncompliance
with Environmental Laws, failure to receive required permits, failure to comply with the
terms and conditions of such permits or liability in connection with such releases would
not, individually or in the aggregate, have a Material Adverse Effect. The term
“Hazardous Material” means (A) any “hazardous substance” as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (B) any
“hazardous waste” as defined in the Resource Conservation and Recovery Act, as amended,
(C) any petroleum or petroleum product, (D) any polychlorinated biphenyl, and (E) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other Environmental Law.
(xx) Effect of Environmental Laws. In the ordinary course of business, each
Partnership Entity and Operating Subsidiary periodically reviews the effect of
Environmental Laws on its business operations and properties, in the course of which it
identifies and evaluates associated costs and liabilities that are reasonably likely to
be incurred pursuant to such Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permits, license or approval, any related
constraints on operating activities and any potential liabilities to third parties). On
the basis of such review, each Partnership Entity and Operating Subsidiary has reasonably
concluded that such associated costs and liabilities would not, individually or in the
aggregate, have a Material Adverse Effect.
(yy) Permits. Each of the Partnership Entities and the Operating Subsidiaries has,
or on the Closing Date and each settlement date will have, such permits, consents,
licenses, franchises, certificates and authorizations of governmental or regulatory
authorities (“permits”) as are necessary to own or lease its properties and to conduct
its business in the manner described in the Disclosure Package and the Final Prospectus,
subject to such qualifications as may be set forth in the Disclosure Package and the
Final Prospectus and except for such permits that, if not obtained, would not,
individually or in the aggregate, have a Material Adverse Effect; each of the Partnership
Entities and Operating Subsidiaries has, or on the Closing Date and each settlement date
will have, fulfilled and performed all its material obligations with respect to such
permits which are or will be due to have been fulfilled and performed by such date and no
event has occurred that would prevent the permits from being renewed or reissued or which
allows, or after notice or lapse of time would allow, revocation or termination thereof
or results in any impairment of the rights of the holder of any such permit, except for
such non-renewals, non-issues, revocations, terminations and impairments that would not,
individually or in the aggregate, have a Material Adverse Effect; and none of such
permits contains, or on the Closing Date and each settlement date will contain, any
restriction that is materially burdensome to the Partnership Entities considered as a
whole.
(zz) ERISA. On the Closing Date and each settlement date, each Partnership Entity
and Operating Subsidiary will be in compliance in all material
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respects with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations
thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has occurred with
respect to any “pension plan” (as defined in ERISA) for which any Partnership Entity
would have any liability, excluding any reportable event for which a waiver could apply;
no Partnership Entity expects to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”).
(aaa) No Distribution of Other Offering Materials. The Partnership Entities have
not distributed and, prior to the later to occur of (i) the Closing Date or any
settlement date and (ii) completion of the distribution of the Units, will not
distribute, any offering material in connection with the offering and sale of the Units
other than any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing
Prospectus to which the Representatives have consented in accordance with this Agreement,
and other materials, if any, permitted by the Act, including Rule 134.
(bbb) NYSE Listing. The Units have been approved for listing on the NYSE, subject
only to official notice of issuance.
(ccc) Investment Company. None of the Partnership Entities and none of the
Operating Subsidiaries is now, and after the sale of the Units to be sold by the
Partnership hereunder and the application of the net proceeds from such sale as described
in the Disclosure Package and the Final Prospectus under the caption “Use of Proceeds”
will be an “investment company” or a company “controlled by” an “investment company”
within the meaning of the Investment Company Act.
(ddd) Brokers. Except for this Agreement and any engagement letters with the
Representatives, there are no contracts, agreements or understandings between any DCP
Party and any person that would give rise to a valid claim against any DCP Party or any
Underwriter for a brokerage commission, finder’s fee or other like payment in connection
with this offering of the Units.
(eee) FINRA Matters. To the Partnership’s knowledge, there are no affiliations or
associations between any member of the Financial Industry Regulatory Authority (“FINRA”)
and any of the General Partner’s or DCP Midstream GP, LLC’s officers or directors, or the
Partnership’s 5% or greater securityholders, except as set forth in the Disclosure
Package and the Final Prospectus.
(fff) Market Stabilization. The Partnership has not taken, directly or indirectly,
any action designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Partnership to facilitate the sale or resale of the
Units.
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Any certificate signed by any officer of any of the DCP Parties and delivered to the
Representatives or counsel for the Underwriters in connection with the offering of the Units
shall be deemed a representation and warranty by such DCP Party, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Partnership agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Partnership, at the
purchase price set forth in Schedule I hereto, the number of Firm Units set forth
opposite such Underwriter’s name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Partnership hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to the number of Option Units set
forth in Schedule I hereto at the same purchase price per Common Unit as the Underwriters
shall pay for the Firm Units. Said option may be exercised only to cover over-allotments
in the sale of the Firm Units by the Underwriters. Said option may be exercised in whole
or in part at any time on or before the 30th day after the date of the Final Prospectus
upon written or telegraphic notice by the Representatives to the Partnership setting
forth the number of Option Units as to which the several Underwriters are exercising the
option and the settlement date. The number of Option Units to be purchased by each
Underwriter shall be the same percentage of the total number of Option Units to be
purchased by the several Underwriters as such Underwriter is purchasing of the Firm
Units, subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Firm Units and the Option Units (if
the option provided for in Section 2(b) hereof shall have been exercised on or before the third
Business Day immediately preceding the Closing Date) shall be made at the offices of Holland & Xxxx
LLP, 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, on the date and at the time specified in
Schedule I hereto or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Partnership or as provided in Section 9 hereof (such
date and time of delivery and payment for the Units being herein called the “Closing Date”).
Delivery of the Units shall be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Partnership by wire transfer payable in same-day
funds to an account specified by the Partnership. Delivery of the Firm Units and the Option Units
shall be made through the facilities of The Depository Trust Company unless the Representatives
shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Partnership will deliver the Option Units (at the
expense of the Partnership) to the Representatives, at the offices of Holland & Xxxx LLP, 000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, on the date specified by the
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Representatives (which shall be within three Business Days after exercise of said option) for
the respective accounts of the several Underwriters, against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order of the Partnership
by wire transfer payable in same-day funds to an account specified by the Partnership. If
settlement for the Option Units occurs after the Closing Date, the Partnership will deliver to the
Representatives on the settlement date for the Option Units, and the obligation of the Underwriters
to purchase the Option Units shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Units for sale to the public as set forth in the Final Prospectus.
5. Further Agreements of the DCP Parties. Each of the DCP Parties, jointly and severally,
covenants and agrees that:
(a) Preparation of Final Prospectus and Registration Statement. Prior to the
termination of the offering of the Units, the Partnership will not file any amendment to
the Registration Statement or supplement (including the Final Prospectus or any
Preliminary Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement
unless the Partnership has furnished the Representatives a copy for their review prior to
filing and will not file any such proposed amendment or supplement to which the
Representatives reasonably object. The Partnership will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Partnership will promptly advise the
Representatives (i) when the Final Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission, (ii) when, prior
to termination of the offering of the Units, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose and (v) of the receipt by
the Partnership of any notification with respect to the suspension of the qualification
of the Units for sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Partnership will use its best efforts to prevent the
issuance of any such stop order or the occurrence of any such suspension or objection to
the use of the Registration Statement and, upon such issuance, occurrence or notice of
objection, to obtain as soon as possible the withdrawal of such stop order or relief from
such occurrence or objection, including, if necessary, by filing an amendment to the
Registration Statement or a new registration statement and using its commercially
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reasonable best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
(b) Amendment or Supplement of Disclosure Package. If, at any time prior to the
filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of
which the Disclosure Package would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made or the circumstances then prevailing, not
misleading, the Partnership will (i) notify promptly the Representatives so that any use
of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to the Representatives in such quantities as the
Representatives may reasonably request.
(c) Amendment of Registration Statement or Supplement of Final Prospectus. If, at
any time when a prospectus relating to the Units is required to be delivered under the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under which
they were made at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Partnership
promptly will (i) notify the Representatives of any such event, (ii) prepare and file
with the Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use its commercially reasonable
best efforts to have any amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to avoid any disruption in
use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to the
Representatives in such quantities as the Representatives may reasonably request.
(d) Reports to Unitholders. The Partnership will make generally available to its
security holders and to the Representatives an earnings statement or statements of the
Partnership and its subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158.
(e) Signed Copies of the Registration Statement and Copies of the Prospectus. The
Partnership will furnish to the Representatives and counsel for the Underwriters, upon
request and without charge, signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the
Final Prospectus and each Issuer Free
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Writing Prospectus and any supplement thereto as the Representatives may reasonably
request. The Partnership will pay the expenses of printing or other production of all
documents relating to the offering.
(f) Qualification of Units. The Partnership will arrange, if necessary, for the
qualification of the Units for sale under the laws of such jurisdictions as the
Representatives may reasonably request and will maintain such qualifications in effect so
long as required for the distribution of the Units; provided that in no event shall the
Partnership be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of process in
suits, other than those arising out of the offering or sale of the Units, in any
jurisdiction where it is not now so subject.
(g) Free Writing Prospectuses. The Partnership agrees that, unless it has or shall
have obtained the prior written consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Partnership that, unless it has or shall have
obtained, as the case may be, the prior written consent of the Partnership, it has not
made and will not make any offer relating to the Units that would constitute an Issuer
Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405) required to be filed by the Partnership with the Commission or
retained by the Partnership under Rule 433; provided that the prior written consent of
the parties hereto shall be deemed to have been given in respect of any Free Writing
Prospectuses included in Schedule IV hereto. Any such free writing prospectus consented
to by the Representatives or the Partnership is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Partnership agrees that (x) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(h) Lock-up Period; Lock-up Letters. For a period commencing on the date hereof and
ending on the Business Day set forth on Schedule I hereto, each of the DCP Parties agrees
not to, without the prior written consent of the Representatives, offer, sell, contract
to sell, pledge, or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or otherwise)
by the Partnership, DCP LP Holdings, the General Partner and each officer and director of
the General Partner) directly or indirectly, including the filing (or participation in
the filing) of a registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other Common Units or any
securities convertible into, or exercisable, or exchangeable for, Common Units; or
publicly announce an intention to effect any such transaction; provided, however, that
the Partnership may issue and sell Common Units pursuant to the long-term incentive plan,
any employee unit option plan, unit ownership plan or dividend reinvestment plan of the
Partnership in effect at
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the Execution Time and the Partnership may issue Common Units issuable upon the
conversion of securities or the exercise of warrants outstanding at the Execution Time.
(i) Stabilization. The Partnership will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or manipulation of the
price of any security of the Partnership to facilitate the sale or resale of the Units.
(j) Costs and Expenses. The Partnership agrees, whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated, to pay
the costs and expenses relating to the following matters: (i) the authorization,
issuance, sale and delivery of the Units and any taxes payable in that connection; (ii)
the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), any
Preliminary Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging)
of such copies of the Registration Statement, each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to
any of them, as may, in each case, be reasonably requested for use in connection with the
offering and sale of the Units; (iv) the preparation, printing, authentication, issuance
and delivery of certificates for the Units, including any stamp or transfer taxes in
connection with the original issuance and sale of the Units; (v) services provided by the
transfer agent or registrar; (vi) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Units; (vi) the
registration of the Units under the Exchange Act and the listing of the Units on the
NYSE; (vii) any registration or qualification of the Units for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (viii) any filings required to be made with FINRA
(including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (ix) the transportation and other expenses
incurred by or on behalf of Partnership representatives in connection with presentations
to prospective purchasers of the Units; (x) the fees and expenses of the Partnership’s
accountants and the fees and expenses of counsel (including local and special counsel)
for the Partnership; and (xi) all other costs and expenses incident to the performance of
the obligations of the DCP Parties under this Agreement; provided that, except as
provided in this Section 5(j) and in Section 7, the Underwriters shall pay their own
costs and expenses, including the costs and expenses of their counsel, any transfer taxes
on the Units which they may sell and the expenses of advertising any offering of the
Units made by the Underwriters.
(k) Application of Proceeds. The Partnership will apply the net proceeds from the
sale of the Units as set forth in the Disclosure Package and the Final Prospectus.
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6. Conditions of Underwriters’ Obligations. The respective obligations of the Underwriters to
purchase the Firm Units and the Option Units, as the case may be, shall be subject to the accuracy
of the representations and warranties on the part of the DCP Parties contained herein as of the
Execution Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the DCP Parties made in any certificates pursuant to the provisions
hereof, to the performance by the DCP Parties of their obligations hereunder and to the following
additional conditions:
(a) All filings required by Rule 424 and Rule 430B shall have been made; any other
material required to be filed by the Partnership pursuant to Rule 433(d) under the Act
shall have been filed with the Commission within the applicable time periods prescribed
for such filings by Rule 433; no stop order (i) suspending the effectiveness of the
Registration Statement or (ii) suspending or preventing the use of the Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus, shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Partnership or any Underwriter, threatened by the Commission. Any
request of the Commission for inclusion of additional information in the Registration
Statement or the Final Prospectus or otherwise shall have been complied with to the
reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have discovered and disclosed to any of the DCP Parties on
or prior to the Closing Date or any settlement date pursuant to Section 3 hereof that the
Registration Statement, the Final Prospectus or the Disclosure Package, or any amendment
or supplement thereto, contains an untrue statement of a fact which, in the opinion of
counsel for the Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated therein or in the
documents incorporated by reference therein or is necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.
(c) All corporate, partnership and limited liability company proceedings and other
legal matters incident to the authorization, form and validity of this Agreement, the
Charter Documents, the Common Units, the Disclosure Package and the Final Prospectus, and
all other legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the DCP Parties shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such matters.
(d) The Partnership shall have requested and caused Holland & Xxxx LLP, counsel for
the Partnership, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, in form and substance satisfactory to
the Representatives to the effect set forth on Exhibit B hereto.
(e) Xxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of DCP
Midstream GP, LLC, shall have furnished to the Representatives his opinion, dated the
Closing Date and addressed to the Representatives, in form and
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substance satisfactory to the Representatives to the effect set forth on Exhibit C
hereto.
(f) The Representatives shall have received from Xxxxx Xxxxx L.L.P., counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Units, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably require, and the
Partnership shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g) The Partnership shall have furnished to the Representatives a certificate of the
Partnership, signed on behalf of the Partnership by the Chairman of the Board or the
President and the Chief Financial Officer of DCP Midstream GP, LLC, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Final Prospectus and any supplements
or amendments thereto, and this Agreement and that:
(i) the representations and warranties of the DCP Parties in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the DCP Parties have complied with all the agreements and
satisfied all the conditions on their part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings for that
purpose have been instituted or, to the Partnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition (financial or otherwise),
results of operations, prospects, earnings, business or properties of the
Partnership Entities, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(h) The Partnership shall have requested and caused Deloitte & Touche LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date, letters,
(which may refer to letters previously delivered to one or more of the Representatives),
dated respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives, (i) confirming that such firm is an
independent registered public accounting firm within the meaning of the Act, the Rules
and Regulations and the rules of the PCAOB, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates as of
which specified financial information is given in the Disclosure
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Package and the Final Prospectus, as of a date not more than three days prior to the
date hereof), the conclusions and findings of such firm with respect to the financial
information and (iii) covering such other matters as are ordinarily covered by
accountants’ “comfort letters” to underwriters in connection with registered public
offerings.
(i) The Partnership shall have requested and caused Ernst & Young LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date, letters,
(which may refer to letters previously delivered to one or more of the Representatives),
dated respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives, (i) confirming that such firm is an
independent registered public accounting firm within the meaning of the Act, the Rules
and Regulations and the rules of the PCAOB, (ii) stating as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates as of
which specified financial information is given in the Disclosure Package and the Final
Prospectus, as of a date not more than four business days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information and (iii)
covering such other matters as are ordinarily covered by accountants’ “comfort letters”
to underwriters in connection with registered public offerings.
(j) Since the date of the latest audited financial statements included in the
Disclosure Package and the Final Prospectus, (i) none of the Partnership Entities shall
have sustained any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court
or governmental action, order, investigation or decree, otherwise than as set forth or
contemplated in the Disclosure Package and the Final Prospectus, or shall have become a
party to or the subject of any litigation, court or governmental action, investigation,
order or decree that is materially adverse to the Partnership Entities, taken as a whole,
and (ii) there shall not have been any change in the capitalization or increase in
short-term or long-term debt of any of the Partnership Entities or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, condition (financial or otherwise), stockholders’ equity, partners’ equity,
members’ equity, results of operations, properties, business or prospects of the
Partnership Entities, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Representatives, so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Units as contemplated by the Registration
Statement (exclusive of any amendment thereof), the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto).
(k) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Partnership’s debt securities by any “nationally recognized
statistical rating organization” (as defined in Rule 436(g)) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
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(l) Prior to the Closing Date, the Partnership shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(m) The NYSE shall have approved the Units for listing, subject only to official
notice of issuance.
(n) At the Execution Time, the Partnership shall have furnished to the
Representatives letters substantially in the form of Exhibit A hereto from (i) each
officer and director of the General Partner and (ii) DCP Midstream and any of its
subsidiaries or affiliates that own any Common Units or any securities convertible into
or exercisable or exchangeable for Common Units, addressed to the Representatives and
such letters shall be in full force and effect on the Closing Date and each settlement
date.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Partnership in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Holland & Xxxx LLP, counsel for the Partnership, at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000, on or prior to the Closing Date.
7. Reimbursement of Underwriters’ Expenses.
(a) If the sale of the Units provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Sections 10(i) or 10(iv) hereof or
because of any refusal, inability or failure on the part of the Partnership to perform
any agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the DCP Parties covenant and agree that the
Partnership will reimburse the Underwriters severally through the Representatives on
demand for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed purchase
and sale of the Units.
8. Indemnification and Contribution.
(a) Each of the DCP Parties, jointly and severally, agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint
or several (including legal or other expenses reasonably incurred in connection with
investigating or defending the same) (collectively,
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“Losses”), to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such Losses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Preliminary Prospectus, the Final Prospectus, the
Disclosure Package or any Issuer Free Writing Prospectus, or in any amendment thereof or
supplement thereto, 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 not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Loss (or actions in respect thereof); provided,
however, that the DCP Parties will not be liable in any such case to the extent that any
such Loss arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the DCP Parties by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the DCP Parties may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the DCP Parties, each of the directors and officers of its General Partner who
sign the Registration Statement, and each person who controls any DCP Party within the
meaning of either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the DCP Parties to each Underwriter, but only with respect to references
to written information relating to such Underwriter furnished to the DCP Parties by or on
behalf of such Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. Each of the DCP
Parties acknowledges that (i) the statements set forth in the last paragraph of the cover
page regarding delivery of the Units and (ii) the following statements contained under
the heading “Underwriting”: (A) the list of Underwriters and their respective
participation in the sale of the Units, (B) the sentence related to concessions, (C) the
paragraphs (including the bullet points contained therein) under the heading “Price
Stabilization, Short Positions and Penalty Bids,” and (D) the paragraphs under the
heading “Electronic Distribution,” in each case contained in any Preliminary Prospectus
and the Final Prospectus, constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final
Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
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any obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to
represent the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section
8 is unavailable to or insufficient to hold harmless an indemnified party for any reason,
each of the DCP Parties and the Underwriters severally agree to contribute to the
aggregate Losses to which the DCP Parties and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits received by
the DCP Parties on the one hand and by the Underwriters on the other from the offering of
the Units; provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the Units) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Units purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason, each of the
DCP Parties and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
DCP Parties on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the DCP Parties shall be deemed to be
equal to the total net proceeds from
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the offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus.
Relative fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the DCP Parties on
the one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. Each of the DCP Parties and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d),
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. For purposes of this Section 8, each person who controls
an Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls any DCP Party within the
meaning of either the Act or the Exchange Act, each officer of the Partnership who shall
have signed the Registration Statement and each director of the Partnership shall have
the same rights to contribution as the Partnership, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay
for any of the Units agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Units set forth opposite their names in Schedule II
hereto bears to the aggregate amount of Units set forth opposite the names of all the remaining
Underwriters) the Units which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of Units which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Units set forth in Schedule II hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase any, of the Units, and
if such nondefaulting Underwriters do not purchase all the Units, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Partnership. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date may be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Partnership and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute discretion of
the Representatives, by notice given to the Partnership prior to delivery of and payment for the
Units, if at any time prior to such delivery and payment (i) trading in the Partnership’s Common
Units shall have been suspended by the Commission or the NYSE or
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trading in securities generally on the NYSE shall have been suspended or limited or minimum prices
shall have been established on such exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States shall have occurred and as a
result thereof, in the sole judgment of the Representatives, it is impractical or inadvisable to
proceed with the offering or delivery of the Units as contemplated by any Preliminary Prospectus or
the Final Prospectus (exclusive of any amendment or supplement thereto), (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United States of a national
emergency or war, or other material adverse change in general domestic or international economic,
political or financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such), including, without limitation, as a result of
terrorist activities after the date hereof, as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or delivery of the Units
as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment
or supplement thereto), (iv) any of the events described in Section 6(k) shall have occurred, or
(v) the Underwriters shall decline to purchase the Units for any other reason permitted under this
Agreement.
11. Representations and Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Partnership or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the Partnership or any
of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Units. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on receipt,
and, if sent to the Representatives, will be mailed, delivered or telefaxed to Barclays Capital
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Registration (Fax:
000-000-0000), with a copy, in the case of any notice pursuant to Section 8(c) hereof, to the
Director of Litigation, Office of the General Counsel, Barclays Capital Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and Xxxxx Fargo Securities, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Equity Syndicate Department (fax no: (000) 000-0000); or, if sent to the
Partnership, will be mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at
Xxxxxxx X. Xxxxxxxx, 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, Attention: Legal Department.
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. No Fiduciary Duty. The Partnership hereby acknowledges that (a) the purchase and sale of
the Units pursuant to this Agreement is an arm’s-length commercial transaction between the
Partnership, on the one hand, and the Underwriters and any affiliate through which it may be
acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary
of the Partnership and (c) the Partnership’s engagement of the
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Underwriters in connection with the offering and the process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore, the Partnership agrees that it
is solely responsible for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Partnership on related or
other matters). The Partnership agrees that it will not claim that the Underwriters have rendered
advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Partnership, in connection with such transaction or the process leading thereto.
15. Research Analyst Independence. The Partnership acknowledges that the Underwriters’
research analysts and research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and internal policies, and that
such Underwriters’ research analysts may hold and make statements or investment recommendations
and/or publish research reports with respect to the Partnership and/or the offering that differ
from the views of its investment bankers. The Partnership acknowledges that each Underwriter is a
full service securities firm and as such from time to time, subject to applicable securities laws,
may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies which may be the subject of the
transactions contemplated by this Agreement.
16. Integration. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Partnership and the Underwriters, or any of them, with respect to the
subject matter hereof.
17. Applicable Law. This Agreement will be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed within the State of
New York.
18. Waiver of Jury Trial. The Partnership hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
19. Counterparts. This Agreement may be signed in one or more counterparts, each of which
shall constitute an original and all of which together shall constitute one and the same agreement.
Delivery of a signed counterpart of this Agreement by facsimile or other electronic transmission
shall constitute valid and sufficient delivery thereof.
20. Headings. The section headings used herein are for convenience only and shall not affect
the construction hereof.
21. Definitions. The terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the Rules and Regulations.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
-32-
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the number of Firm Units
and Option Units, the public offering price for the Units and the Closing Date, which are
set forth on Schedule I hereto and will be included on the cover page of the Final
Prospectus, (iv) the Issuer Free Writing Prospectuses, if any, identified in Schedule IV
hereto, and (v) any Permitted Free Writing Prospectus.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement
became or is deemed to have become effective under the Act in accordance with the Rules and
Regulations.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Units that was
first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Investment Company Act” shall mean the Investment Company Act of 1940, as amended.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as
defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Units that is filed with the Commission pursuant to Rule 424(b) and deemed
part of such registration statement pursuant to Rule 430B, as amended on each Effective Date
and, in the event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date,
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shall also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be.
“Rule 134”, “Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”,
“Rule 424”, “Rule 430B”, “Rule 433”, “Rule 436” and “Rule 462” refer to such rules under the
Act.
“Rule 462(b) Registration Statement” shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) of the Act relating to the offering covered
by the registration statement referred to in paragraph 1(a) above.
“Rules and Regulations” shall mean the rules and regulations of the Commission under
the Act.
[Signature Pages Follow]
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If the foregoing correctly sets forth the agreement between the DCP Parties and the
Underwriters, please indicate your acceptance in the space provided for that purpose below.
| Very truly yours,
DCP Midstream Partners, LP |
||||
| By: | DCP Midstream GP, LP | |||
| its general partner | ||||
| By: | DCP Midstream GP, LLC | |||
| its general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
| DCP Midstream GP, LP |
||||
| By: | DCP Midstream GP, LLC | |||
| its general partner | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
| DCP Midstream GP, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
[Signature Page to Underwriting Agreement]
Accepted:
Barclays Capital Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several
Underwriters named in Schedule II hereto,
Xxxxx Fargo Securities, LLC
As Representatives of the several
Underwriters named in Schedule II hereto,
| By: | Barclays Capital Inc. | |||
| By: | /s/ Xxxxxxxx Xxxx | |||
| Name: | Xxxxxxxx Xxxx | |||
| Title: | Vice President | |||
| By: | Xxxxx Fargo Securities, LLC | |||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
[Signature Page to Underwriting Agreement]
SCHEDULE I
Underwriting Agreement dated November 19, 2009
Registration Statement No.: 333-142278
Representatives: Barclays Capital Inc. and Xxxxx Fargo Securities, LLC
Title, Purchase Price and Description of Units
Title: Common Units
Number of Firm Units to be sold by the Partnership: 2,500,000
Maximum Number of Option Units to be sold by the Partnership: 375,000
Price per Common Unit to Public: $25.40
Price per Common Unit to the Underwriters: $24.34
Closing Date, Time and Location: November 24, 2009 at 8:00 a.m. Mountain Standard Time at Holland
& Xxxx LLP, 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
Type of Offering: Non-Delayed
Date referred to in Section 5(h) after which the DCP Parties may offer or sell securities issued
by the Partnership without the consent of the Representative(s): February 17, 2010 (90 days after
the date hereof)
SCHEDULE II
| Number of Firm Units | ||||
| Underwriters | to Be Purchased | |||
Barclays Capital Inc. |
825,000 | |||
Xxxxx Fargo Securities, LLC |
825,000 | |||
Citigroup Global Markets Inc. |
425,000 | |||
Credit Suisse Securities (USA) LLC |
425,000 | |||
TOTAL: |
2,500,000 | |||
SCHEDULE III
| Jurisdiction of | ||||||||
| Entity | Organization | Percentage Ownership | ||||||
Associated Louisiana Intrastate Pipe
Line, LLC |
Delaware | 100 | % | |||||
Collbran Valley Gas Gathering, LLC |
Colorado | 70 | % | |||||
DCP Antrim Gas LLC |
Michigan | 100 | % | |||||
DCP Assets Holding GP, LLC |
Delaware | 100 | % | |||||
DCP Assets Holding, LP |
Delaware | 100 | % | |||||
DCP Bay Area Pipeline LLC |
Michigan | 100 | % | |||||
DCP Black Lake Holding, LP |
Delaware | 100 | % | |||||
DCP Collbran, LLC |
Colorado | 100 | % | |||||
DCP Xxxxxxx, LLC |
Colorado | 100 | % | |||||
DCP East Texas Gathering, LLC |
Delaware | * | ||||||
DCP East Texas Holdings, LLC |
Delaware | 50.1 | % | |||||
DCP Grands Lacs LLC |
Michigan | 100 | % | |||||
DCP Xxxxxxx LLC |
Michigan | 100 | % | |||||
DCP Intrastate Pipeline, LLC |
Delaware | 100 | % | |||||
DCP Lindsay, LLC |
Delaware | 100 | % | |||||
DCP Litchfield LLC |
Michigan | 100 | % | |||||
DCP Michigan Pipeline & Processing, LLC |
Michigan | 100 | % | |||||
DCP Midstream Partners Finance Corp. |
Delaware | 100 | % | |||||
EasTrans, LLC |
Delaware | * | ||||||
Fuels Cotton Valley Gathering, LLC |
Delaware | * | ||||||
Gas Supply Resources LLC |
Texas | 100 | % | |||||
GSRI Transportation LLC |
Texas | 100 | % | |||||
Xxxxxxx Pipeline Company |
Michigan | 75 | % | |||||
Xxxxxx Pipeline, LLC |
Delaware | 100 | % | |||||
Wilbreeze Pipeline, LLC |
Delaware | 100 | % | |||||
| * | This Operating Subsidiary is the wholly owned subsidiary of DCP East Texas Holdings, LLC. |
SCHEDULE IV
Schedule of Free Writing Prospectuses included in the Disclosure Package
None
Exhibit A
LOCK-UP LETTER AGREEMENT
Barclays Capital Inc.
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters,
Xxxxx Fargo Securities, LLC
As Representatives of the several Underwriters,
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Wells Fargo Securities, LLC
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), among DCP Midstream Partners LP, a Delaware limited partnership
(the “Partnership”), DCP Midstream GP, LP, DCP Midstream GP, LLC and each of you as representatives
of a group of Underwriters named therein (the “Underwriters”), relating to an underwritten public
offering (the “Offering”) of Common Units representing limited partner interests in the Partnership
(the “Common Units”).
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not, without the prior written consent of Barclays Capital Inc. and Xxxxx
Fargo Securities, LLC, offer, sell, contract to sell, pledge or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash settlement
or otherwise) by the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration statement with the
Securities and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section 16 of
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder with respect to, any Common Units or any securities
convertible into or exercisable or exchangeable for Common Units, or publicly announce an intention
to effect any such transaction, for a period of 90 days after the date of the Underwriting
Agreement, other than Common Units (i) disposed of as bona fide gifts; provided
A-1
the donee of any such bona fide gift agrees to be bound by the terms of this agreement or (ii)
granted pursuant to the terms of DCP Midstream, LP’s existing long term incentive plan.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), this agreement shall likewise be terminated.
In furtherance of the foregoing, the Partnership and its transfer agent are hereby authorized
to decline to make any transfer of securities if such transfer would constitute a violation or
breach of this agreement.
The undersigned understands that the Partnership and the Underwriters will proceed with the
Offering in reliance on this agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Partnership and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this agreement and that, upon request, the undersigned will execute any
additional documents necessary in connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
| Yours very truly, |
||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
Dated: ___________________
A-2
Exhibit B
Opinion of Holland & Xxxx LLP
1. Formation and Qualification of the Partnership Entities that are Limited Partnerships.
Each of the Partnership, the General Partner and Operating Partnership is validly existing in good
standing as a limited partnership under the Delaware LP Act, is duly registered or qualified to do
business and is in good standing as a foreign limited partnership under the laws of the
jurisdictions set forth opposite its name on Schedule I to this opinion; and each such
limited partnership has all requisite partnership power necessary to own or hold its properties and
assets and to conduct the businesses in which it is engaged, in each case as described in the
Disclosure Package and the Final Prospectus.
2. Formation and Qualification of the Partnership Entities that are Limited Liability
Companies. Each of the GP LLC and OLP GP is validly existing in good standing as a limited
liability company under the Delaware LLC Act, is duly registered or qualified to do business and is
in good standing as a foreign limited liability company under the laws of the jurisdictions set
forth opposite its name on Schedule I to this opinion; and each such limited liability
company has all requisite limited liability company power necessary to own or hold its properties
and assets and to conduct the businesses in which it is engaged, in each case as described in the
Disclosure Package and the Final Prospectus.
3. Power to Act as a General Partner. The General Partner has full limited partnership power
to act as general partner of the Partnership in all material respects as described in the
Disclosure Package and Final Prospectus. DCP Midstream GP, LLC has full limited liability company
power to act as general partner of the General Partner in all material respects as described in the
Disclosure Package and the Final Prospectus. The OLP GP has full limited liability company power
to act as general partner of the Operating Partnership in all material respects as described in the
Disclosure Package and Final Prospectus.
4. Ownership of the General Partner Interest in the Partnership. The General Partner is the
sole general partner of the Partnership with a general partner interest in the Partnership
represented by 373,892 general partner units in the Partnership; such general partner interest has
been duly authorized and validly issued in accordance with the Partnership Agreement; and the
General Partner owns such general partner interest free and clear of all Liens (except restrictions
on transferability and other Liens as described in the Disclosure Package, the Final Prospectus or
the Partnership Agreement), (i) in respect of which a financing statement under the Uniform
Commercial Code of the State of Delaware naming the General Partner as debtor is on file as of a
recent date in the office of the Secretary of State of the State of Delaware or (ii) otherwise
known to such counsel, without independent investigation, other than those created by or arising
under the Delaware LP Act or contained in the Partnership Agreement.
5. Ownership of the General Partner. DCP Midstream GP, LLC is the sole general partner of the
General Partner with a 0.001% general partner interest in the General Partner; such general partner
interest has been duly authorized and validly issued in accordance with the GP Partnership
Agreement; and DCP Midstream GP, LLC owns such general partner interest free and clear of all Liens
(except restrictions on transferability and other Liens as
B-1
described in the Disclosure Package and the Final Prospectus or contained in the Omnibus
Agreement or the GP Partnership Agreement), (i) in respect of which a financing statement under the
Uniform Commercial Code of the state of Delaware, naming DCP Midstream GP, LLC as debtor is on file
as of a recent date in the office of the Secretary of State of the State of Delaware or (ii)
otherwise known to such counsel, without independent investigation, other than those created by or
arising under the Delaware LP Act or contained in the GP Partnership Agreement. DCP Midstream and
DCP LP Holdings are the limited partners of the General Partner with a 98.999% and a 1.0% limited
partner interest, respectively, in the General Partner; such limited partner interests have been
duly authorized and validly issued in accordance with the GP Partnership Agreement and are fully
paid (to the extent required under the GP Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by Sections 17-607 and Sections 17-804 of the Delaware LP Act);
and DCP Midstream and DCP LP Holdings own such limited partner interests free and clear of all
Liens (except restrictions on transferability and other Liens as described in the Disclosure
Package and the Final Prospectus or contained in the Omnibus Agreement or the GP Partnership
Agreement), (i) in respect of which a financing statement under the Uniform Commercial Code of the
state of Delaware, naming DCP Midstream or DCP LP Holdings as debtor is on file as of a recent date
in the office of the Secretary of State of the State of Delaware or (ii) otherwise known to such
counsel, without independent investigation, other than those created by or arising under the
Delaware LP Act or pursuant to the GP Partnership Agreement.
6. Ownership of the Operating Partnership. The OLP GP is the sole general partner of the
Operating Partnership with a 0.001% general partner interest in the Operating Partnership; such
general partner interest has been duly authorized and validly issued in accordance with the OLP
Partnership Agreement; and the OLP GP owns such general partner interest free and clear of all
Liens (except restrictions on transferability and other Liens as described in the Disclosure
Package and the Final Prospectus or contained in the Omnibus Agreement or the OLP Partnership
Agreement), (i) in respect of which a financing statement under the Uniform Commercial Code of the
state of Delaware, naming the OLP GP as debtor is on file as of a recent date in the office of the
Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation, other than those created by or arising under the Delaware LP Act or
pursuant to the OLP Partnership Agreement. The Partnership is the sole limited partner of the
Operating Partnership with a 99.999% limited partner interest in the Operating Partnership; such
limited partner interest has been duly authorized and validly issued in accordance with the OLP
Partnership Agreement and is fully paid (to the extent required under the OLP Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607
and 17-804 of the Delaware LP Act); and the Partnership owns such limited partner interest free and
clear of all Liens (except restrictions on transferability and other Liens as described in the
Disclosure Package and the Final Prospectus or contained in the Omnibus Agreement or the OLP
Partnership Agreement and Liens created pursuant to the Credit Agreement), (i) in respect of which
a financing statement under the Uniform Commercial Code of the state of Delaware, naming the
Partnership as debtor is on file as of a recent date in the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel, without independent investigation, other
than those created by or arising under the Delaware LP Act or pursuant to the OLP Partnership
Agreement.
B-2
7. Ownership of DCP Midstream GP, LLC. DCP Midstream is the sole member of DCP Midstream GP,
LLC with a 100% membership interest in DCP Midstream GP, LLC; such membership interest has been
duly authorized and validly issued in accordance with the DCP Midstream GP, LLC Limited Liability
Company Agreement and is fully paid (to the extent required by the DCP Midstream GP, LLC Limited
Liability Company Agreement) and nonassessable (except as such nonassessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act); and DCP Midstream owns such membership
interest free and clear of all Liens (except for restrictions on transferability and other Liens as
described in the Disclosure Package and the Final Prospectus or contained in the Omnibus Agreement
or contained in the DCP Midstream GP, LLC Limited Liability Company Agreement)(i) in respect of
which a financing statement under the Uniform Commercial Code of the state of Delaware, naming DCP
Midstream as debtor is on file as of a recent date in the office of the Secretary of State of the
State of Delaware or (ii) otherwise known to such counsel, without independent investigation other
than those created by or arising under the Delaware LLC Act or pursuant to the DCP Midstream GP,
LLC Limited Liability Company Agreement.
8. Ownership of the OLP GP. The Partnership is the sole member of the OLP GP with a 100%
membership interest in the OLP GP; such membership interest has been duly authorized and validly
issued in accordance with the OLP GP Limited Liability Company Agreement and is fully paid (to the
extent required by the OLP GP Limited Liability Company Agreement) and nonassessable (except as
such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and
the Partnership owns such membership interest free and clear of all Liens (except for restrictions
on transferability and other Liens as described in the Disclosure Package and the Final Prospectus
or contained in the Omnibus Agreement or contained in the OLP GP Limited Liability Company
Agreement) (i) in respect of which a financing statement under the Uniform Commercial Code of the
state of Delaware, naming the Partnership as debtor is on file as of a recent date in the office of
the Secretary of State of the State of Delaware or (ii) otherwise known to such counsel, without
independent investigation other than those created by or arising under the Delaware LLC Act or
pursuant to the OLP GP Limited Liability Company Agreement.
9. Ownership of the Sponsor Units and the Incentive Distribution Rights. DCP LP Holdings
owns 11,478,201 Common Units and the General Partner owns 268,250 Common Units and 100% of the
Incentive Distribution Rights; all of such Common Units and Incentive Distribution Rights and the
limited partner interests represented thereby have been duly authorized and validly issued in
accordance with the Partnership Agreement, and are fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such nonassessability may be affected by
Sections 17-607 and 17-804 of the Delaware LP Act); all such Common Units and Incentive
Distribution Rights are owned free and clear of all Liens (except restrictions on transferability
and other Liens as described in the Disclosure Package and the Final Prospectus), (i) in respect of
which a financing statement under the Uniform Commercial Code of the state of organization of DCP
LP Holdings or the General Partner naming any of them as debtor is on file as of a recent date in
the applicable office of the respective states of their organization, or (ii) otherwise known to
such counsel, without independent investigation, other than those created by or arising under the
Delaware LP Act or contained in the Partnership Agreement.
B-3
10. Valid Issuance of the Units. The Units to be issued and sold to the Underwriters by the
Partnership pursuant to this Agreement and the limited partner interests represented thereby have
been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Partnership to the Underwriters against payment therefor in accordance
with the terms of this Agreement, will be validly issued, fully paid (to the extent required under
the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by
Sections 17-607 and 17-804 of the Delaware LP Act).
11. Authority and Authorization. Each of the DCP Parties has all requisite partnership or
limited liability company power, as the case may be, to execute and deliver this Agreement and
perform its respective obligations hereunder. The Partnership has all requisite partnership power
to issue, sell and deliver the Units, in accordance with and upon the terms and conditions set
forth in this Agreement, the Partnership Agreement, the Disclosure Package and the Final
Prospectus.
12. Authorization, Execution and Delivery of Agreement. This Agreement has been duly
authorized, validly executed and delivered by each of the DCP Parties.
13. Enforceability of the Partnership Agreement. The Partnership Agreement has been duly
authorized, executed and delivered by the General Partner, is a valid and legally binding agreement
of the General Partner, enforceable against the General Partner in accordance with its terms;
provided that, the enforceability thereof may be limited by (A) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights
generally and by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (B) public policy, applicable law relating to
fiduciary duties and indemnification and contribution and an implied covenant of good faith and
fair dealing.
14. No Conflicts. None of (a) the offering, issuance and sale by the Partnership of the
Units, (b) the execution, delivery and performance of this Agreement by the Partnership Entities,
or (c) the consummation of the transactions contemplated by this Agreement, conflicts with or
constitutes a breach, default, violation (and no event has occurred that, with notice or lapse of
time or otherwise, would constitute such an event) or imposition of any Lien upon any property or
assets of the Partnership Entities pursuant to, (i) the certificate of limited partnership,
certificate of formation or Charter Documents, of each of the Partnership Entities, (ii) any other
agreement filed as an exhibit to the Registration Statement or (iii) the Delaware LP Act, the
Delaware LLC Act, the Delaware General Corporation Law (the “DGCL”), or federal law, which
breaches, violations defaults or Liens, in the case of clauses (ii) or (iii), would reasonably be
expected to have a Material Adverse Effect or could reasonably be expected to materially impair the
ability of any of the Partnership Entities to perform their obligations under this Agreement;
provided, however, that no opinion is expressed pursuant to this paragraph 14 with respect to
securities and other anti-fraud statutes, rules or regulations.
15. No Consents. Except for the registration of the Units under the Securities Act and such
consents, approvals authorizations, registrations or qualifications under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and applicable state securities laws in connection
with the purchase and distribution of the Units by the Underwriters,
B-4
no Governmental Approval is required for the execution and delivery by each of the DCP Parties
of the Underwriting Agreement or the incurrence or performance of their respective obligations
thereunder and the consummation of the transactions contemplated thereby, including the offering,
issuance and sale by the Partnership of the Units, except for such (A) as have been obtained or
made, (B) as may be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Units by the Underwriters, (C) would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect if not
obtained or made, or (D) as has been disclosed in the Disclosure Package and the Final Prospectus.
16. Descriptions and Summaries. The statements in the Preliminary Prospectus dated November
18, 2009 provided to the Underwriters for use in connection with the public offering of the Units,
the Registration Statement and the Final Prospectus under the captions “Our Cash Distribution
Policy and Restrictions on Distributions,” “Description of the Common Units,” and “Material Tax
Considerations” insofar as they constitute descriptions of agreements or refer to statements of law
or legal conclusions are accurate and complete in all material respects; and the Common Units and
the Incentive Distribution Rights conform in all material respects to the descriptions thereof
contained in the Preliminary Prospectus, the Registration Statement and the Final Prospectus under
the caption “Description of the Common Units.”
17. Tax Opinion. The opinion of Holland & Xxxx LLP that is filed as Exhibit 8.1 to the
Partnership’s Current Report on Form 8-K to be filed with the Commission on or after the Execution
Time and before the Closing Date is confirmed, and the Underwriters may rely upon such opinion as
if it were addressed to them.
18. Effectiveness of Registration Statement. The Registration Statement was declared
effective under the Act on November 8, 2007; to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened by the Commission; and any required filing of the
Preliminary Prospectus pursuant to Rule 424(b) has been made in the manner and within the time
period required by such Rule.
19. ’40 Act. None of the Partnership Entities or Operating Subsidiaries is an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the DCP Parties and upon information obtained from public
officials, (B) assume that all documents submitted to them as originals are authentic, that all
copies submitted to them conform to the originals thereof, and that the signatures on all documents
examined by them are genuine, (C) state that their opinion is limited to federal laws, the Delaware
LP Act, and the Delaware LLC Act, (D) with respect to the opinions expressed in paragraphs 1 and 2
above as to the due qualification or registration as a foreign limited partnership or limited
liability company, as the case may be, of the Partnership Entities, state that such opinions are
based upon certificates of foreign qualification or registration provided by the Secretary of State
of the states listed on Annex I (each of which will be dated not more than
B-5
fourteen days prior to such settlement date and shall be provided to the Underwriters), (E)
state that they express no opinion with respect to any permits to own or operate any real or
personal property, (F) state that they express no opinion with respect to the accuracy or
descriptions of real or personal property, and (G) state that they express no opinion with respect
to state or local taxes or tax statutes to which any of the limited partners of the Partnership or
any of the Partnership Entities may be subject.
In addition, such counsel shall state (and may so state in a separate letter) that they have
participated in conferences with officers and other representatives of the DCP Parties,
representatives of the independent registered public accounting firms of the Partnership, and
representatives of the Underwriters, at which the contents of the Registration Statement, the
Disclosure Package and the Final Prospectus and related matters were discussed, and although such
counsel did not independently verify, is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Disclosure Package and the Final Prospectus (except to the extent specified in
paragraph 15 above), on the basis of the foregoing, no facts have come to the attention of such
counsel which lead them to believe that:
(A) The Registration Statement, on the Effective Date, and the Final Prospectus, when filed
with the Commission pursuant to Rule 424(b) and on the Closing Date, were, on their face,
appropriately responsive, in all material respects, to the requirements of the Act and the Rules
and Regulations (except for the financial statements and the notes and schedules thereto, and other
financial data included in the Registration Statement or the Final Prospectus, as to which such
counsel need not express any opinion).
(B) the Registration Statement, at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(C) the Disclosure Package, as of the Execution Time, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; or
(D) that the Final Prospectus, as of its date and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
it being understood that such counsel need not express any statement or belief with respect to (i)
the financial statements and related schedules, including the notes and schedules thereto and the
auditor’s report thereon, or any other financial and accounting information, included in the
Registration Statement, the Final Prospectus or the Disclosure Package, and (ii) representations
and warranties and other statements of fact included in the exhibits to the Registration Statement.
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Exhibit C
Opinion of Xxxxxxx X. Xxxxxxxx
1. Capitalization. After giving effect to the offering of the Firm Units as contemplated by
this Agreement, the issued and outstanding limited partnership interests of the Partnership will
consist of 34,233,183 Common Units and the Incentive Distribution Rights.
2. Enforceability of Certain Agreements.
(a) The GP Partnership Agreement has been duly authorized, executed and delivered by
DCP Midstream and, assuming due authorization, execution and delivery by the other parties
thereto, is a valid and legally binding agreement of DCP Midstream, enforceable against DCP
Midstream in accordance with its terms; and
(b) The DCP Midstream GP, LLC Limited Liability Company Agreement has been duly
authorized, executed and delivered by DCP Midstream and is a valid and legally binding
agreement of DCP Midstream, enforceable against DCP Midstream in accordance with its terms;
(c) the OLP Partnership Agreement has been duly authorized, executed and delivered by
the OLP GP and the Partnership and is a valid and legally binding agreement of the OLP GP
and the Partnership, enforceable against the OLP GP and the Partnership in accordance with
its terms; and
(d) the OLP GP Limited Liability Company Agreement has been duly authorized, executed
and delivered by the Partnership and is a valid and legally binding agreement of the
Partnership, enforceable against the Partnership in accordance with its terms;
provided that, with respect to each agreement described in this paragraph 2, the
enforceability thereof may be limited by (A) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors’ rights
generally and by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (B) public policy, applicable law
relating to fiduciary duties and indemnification and contribution and an implied covenant of
good faith and fair dealing.
3. Ownership of the Operating Subsidiaries. The Operating Partnership directly or indirectly
owns the respective percentages of the outstanding membership interests or partnership interests,
as the case may be, of each of the Operating Subsidiaries set forth on Schedule III; all such
membership interests or partnership interests have been duly authorized and validly issued in
accordance with the respective Operating Subsidiaries Operative Documents and (other than the
general partnership interest in Xxxxxxx Pipeline) are fully paid (to the extent required under the
applicable Operating Subsidiaries Operative Documents) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act or Section 17-607 of the
Delaware LP Act, as applicable). The Operating Partnership directly or indirectly owns 45% of the
partnership interests of Black Lake, 40% of
the membership interests in Discovery and 50% of the membership interests in Pine Tree and
Discovery owns 100% of the membership interests in Discovery Sub.
4. No Conflicts. None of the offering, issuance and sale by the Partnership of the Units, the
execution, delivery and performance of this Agreement by any of the Partnership Entities that are
parties thereto and the consummation of the transactions contemplated hereby will (i) conflict
with, or, result in a breach, default (and no event has occurred that, with notice or lapse of time
or otherwise, would constitute such an event) or violation of, or imposition of any Lien (other
than those arising under the Credit Agreement) upon any property or assets of the Partnership
Entities pursuant to any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel (excluding the Charter Documents and any other
agreements and instruments listed as exhibits to the Registration Statement) to which any of the
Partnership Entities or their properties may be bound, or (ii) violate any order, judgment, decree
or injunction known to such counsel of any court or governmental agency or body to which any of the
Partnership Entities or any of their properties is subject, which breaches, violations or defaults
would reasonably be expected to have a Material Adverse Effect, could materially impair the ability
of any of the Partnership Entities to perform their obligations under this Agreement or the Charter
Documents; or subject the limited partners of the Partnership to any material liability or
disability.
5. No Preemptive Rights, Registration Rights or Options. Except as described in the
Disclosure Package and the Final Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer of any equity
securities of any of the Partnership Entities or the Operating Subsidiaries, in each case pursuant
to any agreement or instrument to which DCP Midstream or any of its affiliates (other than any
Partnership Entity) is a party or by which DCP Midstream or any of its affiliates (other than any
Partnership Entity) may be bound. Neither the filing of the Registration Statement nor the
offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or
relating to the registration of any Units or other securities of the Partnership, the General
Partner, the Operating Partnership, DCP Midstream GP, LLC, the OLP GP or the Operating
Subsidiaries, except such rights as have been waived or satisfied. To such counsel’s knowledge,
except as described in the Disclosure Package and the Final Prospectus, there are no outstanding
options or warrants to purchase (A) any Common Units or other interests in the Partnership, (B) any
partnership interests in the General Partner or the Operating Partnership, or (C) any membership
interests in DCP Midstream GP, LLC or the OLP GP.
6. Litigation. To the knowledge of such counsel, there are no legal or governmental
proceedings pending or threatened to which any of the Partnership Entities or Operating
Subsidiaries is a party or to which any of their respective properties is subject that are required
to be described in the Registration Statement or the Prospectus but are not so described as
required.
7. Contracts to be Described or Filed. To the knowledge of such counsel, there are no
agreements, contracts, indentures, leases or other instruments that are required to be described in
the Registration Statement or the Final Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required by the Act.
C-2
In addition, such counsel shall state that he has participated in conferences with officers
and other representatives of the DCP Parties, representatives of the independent registered public
accounting firm of the Partnership, and representatives of the Underwriters, at which the contents
of the Registration Statement, the Disclosure Package and the Final Prospectus and related matters
were discussed, and although such counsel did not independently verify, is not passing upon and
does not assume any responsibility for the accuracy, completeness or fairness of the statements
contained in such Registration Statement, the Disclosure Package and the Final Prospectus, on the
basis of the foregoing, no facts have come to the attention of such counsel which lead him to
believe that:
(A) the Registration Statement, at the time it became effective contained an untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(B) the Disclosure Package, as of the Execution Time, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading; or
(C) that the Final Prospectus, as of its date and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
it being understood that such counsel need not express any statement or belief with respect to (i)
the financial statements and related schedules, including the notes and schedules thereto and the
auditor’s report thereon, or any other financial and accounting information, included in the
Registration Statement, the Final Prospectus or the Disclosure Package, and (ii) representations
and warranties and other statements of fact included in the exhibits to the Registration Statement.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the DCP Parties and upon information obtained from public
officials, (B) assume that all documents submitted to him as originals are authentic, that all
copies submitted to him conform to the originals thereof, and that the signatures on all documents
examined by him are genuine, (C) state that his opinion is limited to Federal laws, the Delaware LP
Act, the Delaware LLC Act, the DGCL and the laws of the State of Colorado, (D) state that they
express no opinion with respect to the accuracy or descriptions of real or personal property, and
(E) state that he expresses no opinion with respect to state or local taxes or tax statutes to
which any of the limited partners of the Partnership or any of the Partnership Entities may be
subject.
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