REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
made and entered into as of August 29, 2007, by and among DCP Midstream
Partners, LP, a Delaware limited partnership (the “Partnership”),
and
the Purchasers listed on the signature pages to this Agreement (each, a
“Purchaser”
and
collectively, the “Purchasers”).
WHEREAS,
this Agreement is made in connection with the Closing of the issuance and sale
of the Purchased Units pursuant to the Common Unit Purchase Agreement, dated
as
of May 21, 2007, by and among the Partnership and the Purchasers (the
“Purchase
Agreement”);
WHEREAS,
the Partnership has agreed to provide the registration and other rights set
forth in this Agreement for the benefit of the Purchasers pursuant to the
Purchase Agreement; and
WHEREAS,
it is a condition to the obligations of each Purchaser and the Partnership
under
the Purchase Agreement that this Agreement be executed and
delivered.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged by each party hereto, the parties hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
Capitalized terms used herein without definition shall have the meanings given
to them in the Purchase Agreement. The terms set forth below are used herein
as
so defined:
“Affiliate”
means,
with respect to a specified Person, any other Person, whether now in existence
or hereafter created, directly or indirectly controlling, controlled by or
under
direct or indirect common control with such specified Person. For purposes
of
this definition, “control” (including, with correlative meanings, “controlling,”
“controlled by,” and “under common control with”) means the power to direct or
cause the direction of the management and policies of such Person, directly
or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise.
“Agreement”
has
the
meaning specified therefor in the introductory paragraph.
“Commission”
means
the United States Securities and Exchange Commission.
“Common
Units”
means
the Common Units of the Partnership representing limited partner interests
therein.
“Effectiveness
Period”
has
the
meaning specified therefor in Section
2.01(a)
of this
Agreement.
“Holder”
means
the record holder of any Registrable Securities.
“Included
Registrable Securities”
has
the
meaning specified therefor in Section
2.02(a)
of this
Agreement.
“Liquidated
Damages”
has
the
meaning specified therefor in Section
2.01(b)
of this
Agreement.
“Liquidated
Damages Multiplier”
means
the product of $42.00 times the number of Common Units purchased by such
Purchaser (excluding any Excluded Registrable Securities).
“Losses”
has
the
meaning specified therefor in Section
2.07(a)
of this
Agreement.
“Managing
Underwriter”
means,
with respect to any Underwritten Offering, the book-running lead manager of
such
Underwritten Offering.
“NYSE”
means
The New York Stock Exchange, Inc.
“Opt
Out Notice”
has
the
meaning specified therefor in Section
2.02(a)
of this
Agreement.
“Other
Holders”
has
the
meaning specified therefor in Section
2.02(b)
of this
Agreement.
“Person”
means
any
individual, corporation, company, voluntary association, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency, instrumentality or political subdivision thereof,
or
any other form of entity.
“Purchase
Agreement”
has
the
meaning specified therefor in the Recitals of this Agreement.
“Purchaser”
and
“Purchasers”
have
the meanings specified therefor in the introductory paragraph of this
Agreement.
“Registrable
Securities”
means:
(i) the Common Units comprising the Purchased Units and (ii) any Common Units
issued as Liquidated Damages pursuant to Section
2.01
of this
Agreement, if any, all of which Registrable Securities are subject to the rights
provided herein until such rights terminate pursuant to the provisions
hereof.
“Registration
Expenses”
has
the
meaning specified therefor in Section
2.06(b)
of this
Agreement.
“Selling
Expenses”
has
the
meaning specified therefor in Section
2.06(b)
of this
Agreement.
“Selling
Holder”
means
a
Holder who is selling Registrable Securities pursuant to a registration
statement.
“Shelf
Registration Statement”
means
a
registration statement under the Securities Act to permit the resale of the
Registrable Securities from time to time, including as permitted by Rule 415
under the Securities Act (or any similar provision then in force under the
Securities Act).
“Underwritten
Offering”
means
an offering (including an offering pursuant to a Shelf Registration Statement)
in which Common Units are sold to an underwriter on a firm commitment basis
for
reoffering to the public.
2
Section
1.02 Registrable
Securities.
Any
Registrable Security will cease to be a Registrable Security when (a) a
registration statement covering such Registrable Security has been declared
effective by the Commission and such Registrable Security has been sold or
disposed of pursuant to such effective registration statement; (b) such
Registrable Security has been disposed of pursuant to any section of Rule 144
(or any similar provision then in force under the Securities Act); (c) such
Registrable Security can be disposed of pursuant to Rule 144(k) (or any similar
provision then in force under the Securities Act) by the Holder, (d) such
Registrable Security is held by the Partnership or one of its subsidiaries;
(e)
two years from the date on which the Shelf Registration Statement contemplated
by Section
2.01
is
declared effective by the Commission or (f) such Registrable Security has been
sold in a private transaction in which the transferor’s rights under this
Agreement are not assigned to the transferee of such securities.
ARTICLE
II
REGISTRATION
RIGHTS
Section
2.01 Shelf
Registration.
(a) Deadline
To Go Effective.
As soon
as practicable following the Closing, but in any event within 90 days of the
Closing, the Partnership shall prepare and file a Shelf Registration Statement
under the Securities Act with respect to all of the Registrable Securities.
The
Partnership shall use its commercially reasonable efforts to cause the Shelf
Registration Statement to become effective no later than 180 days after the
date
of the Closing. The Partnership will use its commercially reasonable efforts
to
cause the Shelf Registration Statement filed pursuant to this Section
2.01
to be
continuously effective under the Securities Act until the date on which all
such
Registrable Securities have ceased to be Registrable Securities (the
“Effectiveness
Period”).
The
Shelf Registration Statement when declared effective (including any documents
incorporated therein by reference) will comply as to form in all material
respects with all applicable requirements of the Securities Act and the Exchange
Act and will not contain an untrue statement of a material fact or omit to
state
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(b) Failure
To Go Effective.
If the
Shelf Registration Statement required by Section
2.01
is not
declared effective within 180 days after Closing, then each Purchaser shall
be
entitled to a payment (with respect to the Purchased Units of each such
Purchaser), as liquidated damages and not as a penalty, of 0.25% of the
Liquidated Damages Multiplier per 30-day period for the first 60 days following
the 180th day, increasing by an additional 0.25% of the Liquidated Damages
Multiplier per 30-day period for each subsequent 60 days, up to a maximum of
1.00% of the Liquidated Damages Multiplier per 30-day period (the “Liquidated
Damages”).
The
Liquidated Damages payable pursuant to the immediately preceding sentence shall
be
payable
within ten Business Days after the end of each such 30-day period. Any
Liquidated Damages shall be paid to each Purchaser in immediately available
funds; provided,
however,
if the
Partnership certifies that it is unable to pay Liquidated Damages in cash
because such payment would result in a breach under a credit facility or other
debt instrument filed as exhibits to the SEC Documents, then the Partnership
may
pay the Liquidated Damages in kind in the form of the issuance of additional
Common Units. Upon any issuance of Common Units as Liquidated Damages, the
Partnership shall promptly prepare and file an amendment to the Shelf
Registration Statement prior to its effectiveness adding such Common Units
to
such Shelf Registration Statement as additional Registrable Securities. The
determination of the number of Common Units to be issued as Liquidated Damages
shall be equal to the amount of Liquidated Damages divided by the average
closing price of the Partnership’s Common Units on the NYSE for the ten trading
days immediately preceding the date on which the Liquidated Damages payment
is
due. The payment of the Liquidated Damages to a Purchaser shall cease at such
time as the Purchased Units of such Purchaser cease to be Registrable
Securities. As soon as practicable following the date that the Shelf
Registration Statement becomes effective, but in any event within three Business
Days of such date, the Partnership shall provide the Purchasers with written
notice of the effectiveness of the Shelf Registration Statement.
3
(c) Waiver
of Liquidated Damages.
If the
Partnership is unable to cause a Shelf Registration Statement to go effective
within the 180 days as a result of an acquisition, merger, reorganization,
disposition or other similar transaction, then the Partnership may request
a
waiver of the Liquidated Damages, and each Holder may individually
grant or
withhold its
consent to such request in its reasonable discretion.
(d) Termination
of Purchaser’s Rights.
A
Purchaser’s rights (and any transferee’s rights pursuant to Section
2.10)
under
this Section
2.01
shall
terminate upon the termination of the Effectiveness Period.
(e) Delay
Rights.
Notwithstanding anything to the contrary contained herein, the Partnership
may,
upon written notice to any Selling Holder whose Registrable Securities are
included in the Shelf Registration Statement, suspend such Selling Holder’s use
of any prospectus which is a part of the Shelf Registration Statement (in which
event the Selling Holder shall discontinue sales of the Registrable Securities
pursuant to the Shelf Registration Statement) if (i) the Partnership is pursuing
an acquisition, merger, reorganization, disposition or other similar transaction
and the Partnership determines in good faith that the Partnership’s ability to
pursue or consummate such a transaction would be materially adversely affected
by any required disclosure of such transaction in the Shelf Registration
Statement or (ii) the Partnership has experienced some other material non-public
event the disclosure of which at such time, in the good faith judgment of the
Partnership, would materially adversely affect the Partnership; provided,
however,
in no
event shall the Purchasers be suspended for a period that exceeds an aggregate
of 30 days in any 90-day period or 90 days in any 365-day period, in each case,
exclusive of days covered by any lock-up agreement executed by a Purchaser
in
connection with any Underwritten Offering. Upon disclosure of such information
or the termination of the condition described above, the Partnership shall
provide prompt notice to the Selling Holders whose Registrable Securities are
included in the Shelf Registration Statement, and shall promptly terminate
any
suspension of sales it has put into effect and shall take such other actions
to
permit registered sales of Registrable Securities as contemplated in this
Agreement.
(f) Additional
Rights to Liquidated Damages.
If (i)
the Holders shall be prohibited from selling their Registrable Securities under
the Registration Statement as a result of a suspension pursuant to Section
2.01(e)
of this
Agreement in excess of the periods permitted therein or (ii) the Registration
Statement is filed and declared effective but, during the Effectiveness Period,
shall thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded by a post-effective amendment to the
Registration Statement, a supplement to the prospectus or a report filed with
the Commission pursuant to Sections 13(a), 13(c), 14 or l5(d) of the Exchange
Act, then, until the suspension is lifted or a post-effective amendment,
supplement or report is filed with the Commission, but not including any day
on
which a suspension is lifted or such amendment, supplement or report is filed
and declared effective, if applicable, the Partnership shall owe the Holders
an
amount equal to the Liquidated Damages, following (x) the date on which the
suspension period exceeded the permitted period under Section
2.01(e)
of this
Agreement or (y) the day after the Registration Statement ceased to be effective
or failed to be useable for its intended purposes, as liquidated damages and
not
as a penalty. For purposes of this Section
2.01(f),
a
suspension shall be deemed lifted on the date that notice that the suspension
has been lifted is delivered to the Holders pursuant to Section 3.01 of this
Agreement.
4
Section
2.02 Piggyback
Rights.
(a) Participation.
If at
any time that is on or after 180 days after the date of the Closing the
Partnership proposes to file (i) a prospectus supplement to an effective shelf
registration statement, other than the Shelf Registration Statement contemplated
by Section
2.01,
or (ii)
a registration statement, other than a shelf registration statement, in either
case, for the sale of Common Units in an Underwritten Offering for its own
account and/or another Person, then as soon as practicable but not less than
three (3) Business Days prior to the filing of (x) any preliminary prospectus
supplement to a prospectus relating to such Underwritten Offering pursuant
to
Rule 424(b) under the Securities Act, (y) the prospectus supplement to a
prospectus relating to such Underwritten Offering pursuant to Rule 424(b) under
the Securities Act (if no preliminary prospectus supplement is used) or (z)
such
registration statement, as the case may be, the Partnership shall give notice
of
such proposed Underwritten Offering to the Holders and such notice shall offer
the Holders the opportunity to include in such Underwritten Offering such number
of Registrable Securities (the “Included
Registrable Securities”)
as
each such Holder may request in writing; provided,
that
each such Holder shall keep all information relating to such Underwritten
Offering in confidence and shall not make use of, disseminate or in any way
disclose any such information; provided,
however,
that if
the Partnership has been advised by the Managing Underwriter that the inclusion
of Registrable Securities for sale for the benefit of the Holders will have
a
material adverse effect on the price, timing or distribution of the Common
Units
in the Underwritten Offering, then the amount of Registrable Securities to
be
offered for the accounts of Holders shall be determined based on the provisions
of Section
2.02(b).
The
notice required to be provided in this Section
2.02(a)
to
Holders shall be provided on a Business Day pursuant to Section
3.01
hereof.
Each such Holder shall then have two Business Days after receiving such notice
to request inclusion of Registrable Securities in the Underwritten Offering,
except that such Holder shall have one Business Day after such Holder confirms
receipt of the notice to request inclusion of Registrable Securities in the
Underwritten Offering in the case of a “bought deal” or “overnight transaction”
where no preliminary prospectus is used. If no request for inclusion from a
Holder is received within the specified time, each such Holder shall have no
further right to participate in such Underwritten Offering. If, at any time
after giving written notice of its intention to undertake an Underwritten
Offering and prior to the closing of such Underwritten Offering, the Partnership
shall determine for any reason not to undertake or to delay such Underwritten
Offering, the Partnership may, at its election, give written notice of such
determination to the Selling Holders and, (x) in the case of a determination
not
to undertake such Underwritten Offering, shall be relieved of its obligation
to
sell any Included Registrable Securities in connection with such terminated
Underwritten Offering, and (y) in the case of a determination to delay such
Underwritten Offering, shall be permitted to delay offering any Included
Registrable Securities for the same period as the delay in the Underwritten
Offering. Any Selling Holder shall have the right to withdraw such Selling
Holder’s request for inclusion of such Selling Holder’s Registrable Securities
in such offering by giving written notice to the Partnership of such withdrawal
up to and including the time of pricing of such offering. Each Holder’s rights
under this Section
2.02(a)
shall
terminate when such Holder (together with any Affiliates of such Holder) holds
less than $15 million of Purchased Units, based on the purchase price per unit
under the Purchase Agreement. Notwithstanding the foregoing, any Holder holding
greater than $15 million of Purchased Units, based on the purchase price per
unit under the Purchase Agreement, may deliver written notice (an “Opt
Out Notice”)
to the
Partnership requesting that such Holder not receive notice from the Partnership
of any proposed Underwritten Offering; provided,
that,
such Holder may later revoke any such Opt Out Notice. Following receipt of
an
Opt Out Notice from a Holder (unless subsequently revoked), the Partnership
shall not be required to deliver any notice to such Holder pursuant to this
Section
2.02(a)
and such
Holder shall no longer be entitled to participate in Underwritten Offerings
by
the Partnership pursuant to this Section
2.02(a).
5
(b) Priority.
If the
Managing Underwriter or Underwriters of any proposed Underwritten Offering
of
Common Units included in an Underwritten Offering involving Included Registrable
Securities advises that the total amount of Common Units that the Selling
Holders and any other Persons intend to include in such offering exceeds the
number that can be sold in such offering without being likely to have a material
adverse effect on the price, timing or distribution of the Common Units offered
or the market for the Common Units, then the Common Units to be included in
such
Underwritten Offering shall include the number of Registrable Securities that
such Managing Underwriter or Underwriters advises can be sold without having
such adverse effect, with such number to be allocated (i) first, to the
Partnership and (ii) second, pro rata among the Selling Holders party to
this Agreement and any other Persons who have been or are granted registration
rights on or after the date of this Agreement (including the General Partner,
“Other
Holders”),
in
each case, who have requested participation in such Underwritten Offering.
The
pro rata allocations for each such Selling Holder shall be the product of (a)
the aggregate number of Common Units proposed to be sold by all Selling Holders
and Other Holders in such Underwritten Offering multiplied by (b) the fraction
derived by dividing (x) the number of Common Units owned on the Registration
Deadline by such Selling Holder or Other Holder by (y) the aggregate number
of
Common Units owned by all Selling Holders and Other Holders participating in
the
Underwritten Offering. As of the date of execution of this Agreement, there
are
no other Persons with Registration Rights relating to Common Units other than
as
described in this Section
2.02(b)
and as
set forth in the Partnership Agreement.
Section
2.03 Underwritten
Offerings.
(a) Underwritten
Offering.
Any one
or more Holders may deliver written notice to the Partnership that such Holders
wish to dispose of Registrable Securities under the Shelf Registration Statement
in an Underwritten Offering if the Holders reasonably anticipate selling
collectively at least $25 million of Common Units (calculated based on the
per
unit purchase price of such Common Units). Upon receipt of such written request,
the Partnership shall use commercially reasonable efforts to retain underwriters
and effect such sale through an Underwritten Offering and take all commercially
reasonable actions as are reasonably requested by the Managing Underwriter
or
underwriters to expedite or facilitate the disposition of such Registrable
Securities,
including entering into an underwriting agreement;
provided,
however,
that
the Partnership shall not be required to cause its management to participate
in
a “road show” or similar marketing effort on behalf of any Holder. The
Partnership may elect to include primary Common Units in any Underwritten
Offering undertaken pursuant to this Section
2.03(a).
In
addition, any Underwritten Offering undertaken pursuant to this Section
2.03
will be
subject to the provisions of Section
2.02(b).
(b) General
Procedures.
In
connection with any Underwritten Offering under this Agreement, the Partnership
shall be entitled to select the Managing Underwriter or Underwriters. In
connection with an Underwritten Offering contemplated by this Agreement in
which
a Selling Holder participates, each Selling Holder and the Partnership shall
be
obligated to enter into an underwriting agreement that contains such
representations, covenants, indemnities and other rights and obligations as
are
customary in underwriting agreements for firm commitment offerings of
securities. No Selling Holder may participate in such Underwritten Offering
unless such Selling Holder agrees to sell its Registrable Securities on the
basis provided in such underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities and other documents reasonably
required under the terms of such underwriting agreement. Each Selling Holder
may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Partnership to
and
for the benefit of such underwriters also be made to and for such Selling
Holder’s benefit and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement also be
conditions precedent to its obligations. No Selling Holder shall be required
to
make any representations or warranties to or agreements with the Partnership
or
the underwriters other than representations, warranties or agreements regarding
such Selling Holder, its authority to enter into such underwriting agreement
and
to sell, and its ownership of, the securities being registered on its behalf,
its intended method of distribution and any other representation required by
Law. If any Selling Holder disapproves of the terms of an underwriting, such
Selling Holder may elect to withdraw therefrom by notice to the Partnership
and
the Managing Underwriter; provided,
however,
that
such withdrawal must be made up to and including the time of pricing of such
Underwritten Offering. No such withdrawal shall affect the Partnership’s
obligation to pay Registration Expenses. The Partnership’s management may but
shall not be required to participate in a roadshow or similar marketing effort
in connection with any Underwritten Offering.
6
Section
2.04 Sale
Procedures.
In
connection with its obligations under this Article
II,
the
Partnership will, as expeditiously as possible:
(a) prepare
and file with the Commission such amendments and supplements to the Shelf
Registration Statement and the prospectus used in connection therewith as may
be
necessary to keep the Shelf Registration Statement effective for the
Effectiveness Period and as may be necessary to comply with the provisions
of
the Securities Act with respect to the disposition of all securities covered
by
the Shelf Registration Statement;
(b) if
a
prospectus supplement will be used in connection with the marketing of an
Underwritten Offering from the Shelf Registration Statement and the Managing
Underwriter at any time shall notify the Partnership in writing that, in the
sole judgment of such Managing Underwriter, inclusion of detailed information
to
be used in such prospectus supplement is of material importance to the success
of the Underwritten Offering of such Registrable Securities, the Partnership
shall use its commercially reasonable efforts to include such information in
such prospectus supplement;
(c) furnish
to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Shelf Registration Statement or
any
other registration statement contemplated by this Agreement
or any
supplement or amendment thereto, upon request, copies of reasonably complete
drafts of all such documents proposed to be filed (including exhibits and each
document incorporated by reference therein to the extent then required by the
rules and regulations of the Commission), and provide each such Selling Holder
the opportunity to object to any information pertaining to such Selling Holder
and its plan of distribution that is contained therein and make the corrections
reasonably requested by such Selling Holder with respect to such information
prior to filing the Shelf Registration Statement or such other registration
statement or supplement or amendment thereto, and (ii) such number of copies
of
the Shelf Registration Statement or such other registration statement and the
prospectus included therein and any supplements and amendments thereto as such
Persons may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such Shelf Registration
Statement or such other registration statement;
(d) if
applicable, use its commercially reasonable efforts to register or qualify
the
Registrable Securities covered by the Shelf Registration Statement or any other
registration statement contemplated by this Agreement under the securities
or
blue sky laws of such jurisdictions as the Selling Holders or, in the case
of an
Underwritten Offering, the Managing Underwriter, shall reasonably request;
provided,
however,
that
the Partnership will not be required to qualify generally to transact business
in any jurisdiction where it is not then required to so qualify or to take
any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(e) promptly
notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of (i)
the filing of the Shelf Registration Statement or
any
other registration statement contemplated by this Agreement
or any
prospectus or prospectus supplement to be used in connection therewith, or
any
amendment or supplement thereto, and, with respect to such Shelf Registration
Statement or any other registration statement contemplated by this Agreement
or
any post-effective amendment thereto, when the same has become effective; and
(ii) any written comments from the Commission with respect to any filing
referred to in clause (i) and any written request by the Commission for
amendments or supplements to the Shelf Registration Statement or any other
registration statement contemplated by this Agreement or any prospectus or
prospectus supplement thereto;
7
(f) immediately
notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of (i)
the happening of any event as a result of which the prospectus or prospectus
supplement contained in the Shelf Registration Statement or
any
other registration statement contemplated by this Agreement,
as then
in effect, includes an untrue statement of a material fact or omits to state
any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; (ii)
the
issuance or threat of issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or
any
other registration statement contemplated by this Agreement,
or the
initiation of any proceedings for that purpose; or (iii) the receipt by the
Partnership of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction. Following the provision of
such
notice, the Partnership agrees to as promptly as practicable amend or supplement
the prospectus or prospectus supplement or take other appropriate action so
that
the prospectus or prospectus supplement does not include an untrue statement
of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
the
circumstances then existing and to take such other action as is necessary to
remove a stop order, suspension, threat thereof or proceedings related
thereto;
(g) in
the
case of an Underwritten Offering, furnish upon request, (i) an opinion of
counsel for the Partnership, dated the effective date of the applicable
registration statement or the date of any amendment or supplement thereto,
and a
letter of like kind dated the date of the closing under the underwriting
agreement, and (ii) a “cold comfort” letter, dated the pricing date of such
Underwritten Offering and a letter of like kind dated the date of the closing
under the underwriting agreement, in each case, signed by the independent public
accountants who have certified the Partnership’s financial statements included
or incorporated by reference into the applicable registration statement, and
each of the opinion and the “cold comfort” letter shall be in customary form and
covering substantially the same matters with respect to such registration
statement (and the prospectus and any prospectus supplement included therein)
as
have been customarily covered in opinions of issuer’s counsel and in
accountants’ letters delivered to the underwriters in Underwritten Offerings of
securities by the Partnership and such other matters as such underwriters and
Selling Holders may reasonably request;
(h) otherwise
use its commercially reasonable efforts to comply with all applicable rules
and
regulations of the Commission, and make available to its security holders,
as
soon as reasonably practicable, an earnings statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158
promulgated thereunder;
(i) make
available to the appropriate representatives of the Managing Underwriter and
Selling Holders access to such information and Partnership personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act;
(j) cause
all
such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange or nationally recognized quotation system on which
similar securities issued by the Partnership are then listed;
8
(k) use
its
commercially reasonable efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Partnership
to enable the Selling Holders to consummate the disposition of such Registrable
Securities;
(l) provide
a
transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement;
(m) enter
into customary agreements and take such other actions as are reasonably
requested by the Selling Holders or the underwriters, if any, in order to
expedite or facilitate the disposition of such Registrable Securities;
and
(n) the
Partnership agrees that, if any Purchaser could reasonably be deemed to be
an
“underwriter”, as defined in Section 2(a)(11) of the Securities Act, in
connection with the Shelf Registration Statement, in addition to its obligations
set forth in paragraph (i) above, at any Purchaser’s request, (A) the
Partnership will furnish to such Purchaser, on the date of the effectiveness
of
the Shelf Registration Statement and thereafter from time to time on such dates
as such Purchaser may reasonably request, an opinion of counsel for the
Partnership and, to the extent practicable, a “cold comfort” letter signed by
the independent public accountants who have certified the Partnership’s
financial statements included or incorporated by reference into the Shelf
Registration Statement, and each of the opinion and “cold comfort” letter shall
be in customary form and covering substantially the same matters with respect
to
the Shelf Registration Statement as have been customarily covered in opinions
of
issuer’s counsel and accountants’ letters delivered to the underwriters in
Underwritten Offerings of securities of the Partnership and (B) the
Partnership will also permit legal counsel to such Purchaser to review and
comment upon the Shelf Registration Statement at least five Business Days prior
to its filing with the Commission and all amendments and supplements thereto
(excluding any filings made under the Securities Exchange Act of 1934 and
incorporated therein by reference) within a reasonable time period prior to
their filing with the Commission and not file any Shelf Registration Statement
or amendment or supplement thereto (excluding any filings made under the
Securities Exchange Act of 1934 and incorporated therein by reference) in a
form
to which such Purchaser’s legal counsel reasonably objects.
Each
Selling Holder, upon receipt of notice from the Partnership of the happening
of
any event of the kind described in subsection (f) of this Section
2.04,
shall
forthwith discontinue disposition of the Registrable Securities until such
Selling Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (f) of this Section
2.04
or until
it is advised in writing by the Partnership that the use of the prospectus
may
be resumed, and has received copies of any additional or supplemental filings
incorporated by reference in the prospectus, and, if so directed by the
Partnership, such Selling Holder will, or will request the managing underwriter
or underwriters, if any, to deliver to the Partnership (at the Partnership’s
expense) all copies in their possession or control, other than permanent file
copies then in such Selling Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
9
Section
2.05 Cooperation
by Holders.
The
Partnership shall have no obligation to include in the Shelf Registration
Statement, or in an Underwritten Offering pursuant to Section
2.2(a),
Common
Units of a Selling Holder who has failed to timely furnish such information
that, in the opinion of counsel to the Partnership, is reasonably required
in
order for the registration statement or prospectus supplement, as applicable,
to
comply with the Securities Act.
Section
2.06 Restrictions
on Public Sale by Holders of Registrable Securities.
For one
year following the Closing Date, each Holder of Registrable Securities who
is
included in the Shelf Registration Statement agrees not to effect any public
sale or distribution of the Registrable Securities during the 30-day period
following completion of an Underwritten Offering of equity securities by the
Partnership (except as provided in this Section
2.06);
provided,
however,
that
the duration of the foregoing restrictions shall be no longer than the duration
of the shortest restriction generally imposed by the underwriters on the
officers or directors or any other unitholder of the Partnership on whom a
restriction is imposed. In
addition, the lock-up provisions in this Section
2.06
shall
not apply with respect to a Holder that (A) owns less than $15 million of
Purchased Units, based on the purchase price per unit under the Purchase
Agreement, (B) has delivered an Opt Out Notice to the Partnership pursuant
to
Section
2.02(a)
or (C)
has submitted a notice requesting the inclusion of Registrable Securities in
an
Underwritten Offering pursuant to Section
2.02(a)
but is
unable to do so as a result of the priority provisions contained in Section
2.02(b).
Section
2.07 Expenses.
(a) Expenses.
The
Partnership will pay all reasonable Registration Expenses as determined in
good
faith, including, in the case of an Underwritten Offering, whether or not any
sale is made pursuant to such Underwritten Offering. Each Selling Holder shall
pay all Selling Expenses in connection with any sale of its Registrable
Securities hereunder. In addition, except as otherwise provided in Section
2.08
hereof,
the Partnership shall not be responsible for legal fees incurred by Holders
in
connection with the exercise of such Holders’ rights hereunder.
(b) Certain
Definitions.
“Registration
Expenses”
means
all expenses incident to the Partnership’s performance under or compliance with
this Agreement to effect the registration of Registrable Securities on the
Shelf
Registration Statement pursuant to Section
2.01
or an
Underwritten Offering covered under this Agreement, and the disposition of
such
securities, including, without limitation, all registration, filing, securities
exchange listing and NYSE fees, all registration, filing, qualification and
other fees and expenses of complying with securities or blue sky laws (other
than fees and expenses of counsel to the Managing Underwriter in connection
with
an Underwritten Offering), fees of the National Association of Securities
Dealers, Inc., fees of transfer agents and registrars, all word processing,
duplicating and printing expenses, any transfer taxes and the fees and
disbursements of counsel and independent public accountants for the Partnership,
including the expenses of any special audits or “cold comfort” letters required
by or incident to such performance and compliance. “Selling
Expenses”
means
all underwriting fees, discounts and selling commissions allocable to the sale
of the Registrable Securities.
10
Section
2.08 Indemnification.
(a) By
the
Partnership.
In the
event of a registration of any Registrable Securities under the Securities
Act
pursuant to this Agreement, the Partnership will indemnify and hold harmless
each Selling Holder thereunder, its directors, officers, employees and agents,
and each underwriter, pursuant to the applicable underwriting agreement with
such underwriter, of Registrable Securities thereunder and each Person, if
any,
who controls such Selling Holder within the meaning of the Securities Act and
the Exchange Act, and its directors, officers, employees or agents, against
any
losses, claims, damages, expenses or liabilities (including reasonable
attorneys’ fees and expenses) (collectively, “Losses”),
joint
or several, to which such Selling Holder, director, officer, employee, agent
or
underwriter or controlling Person may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such Losses (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or any other
registration statement contemplated by this Agreement, any preliminary
prospectus, free writing prospectus or final prospectus contained therein,
or
any amendment 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 (in the case of
a
prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each such Selling Holder, its directors,
officers, employee and agents, each such underwriter and each such controlling
Person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such Loss or actions or proceedings;
provided,
however,
that
the Partnership will not be liable in any such case if and to the extent that
any such Loss arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by such Selling Holder, its directors, officers, employees
and agents or any underwriter or such controlling Person in writing specifically
for use in the Shelf Registration Statement or such other registration statement
contemplated by this Agreement, or any preliminary prospectus, free writing
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, as applicable. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Holder
or
any such directors, officers, employees agents or any underwriter or controlling
Person, and shall survive the transfer of such securities by such Selling
Holder.
(b) By
Each Selling Holder.
Each
Selling Holder agrees severally and not jointly to indemnify and hold harmless
the Partnership, its directors, officers, employees and agents and each Person,
if any, who controls the Partnership within the meaning of the Securities Act
or
of the Exchange Act, and its directors, officers, employees and agents, to
the
same extent as the foregoing indemnity from the Partnership to the Selling
Holders, but only with respect to information regarding such Selling Holder
furnished in writing by or on behalf of such Selling Holder expressly for
inclusion in the Shelf Registration Statement or any other registration
statement contemplated by this Agreements, or any preliminary prospectus, free
writing prospectus or final prospectus contained therein, or any amendment
or
supplement thereto.
(c) Notice.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to
any indemnified party other than under this Section
2.08.
In any
action brought against any indemnified party, it shall notify the indemnifying
party of the commencement thereof. The indemnifying party shall be entitled
to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably satisfactory to such indemnified party
and, after notice from the indemnifying party to such indemnified party of
its
election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section
2.08
for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided,
however,
that,
(i) if the indemnifying party has failed to assume the defense or employ counsel
reasonably acceptable to the indemnified party or (ii) if the defendants in
any
such action include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have concluded that there may be
reasonable defenses available to the indemnified party that are different from
or additional to those available to the indemnifying party, or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, then the indemnified party shall have the right
to
select a separate counsel and to assume such legal defense and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees
of such separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding any other provision of this Agreement, no indemnified party
shall settle any action brought against it with respect to which it is entitled
to indemnification hereunder without the consent of the indemnifying party,
unless the settlement thereof imposes no liability or obligation on, and
includes a complete and unconditional release from all liability of, the
indemnifying party.
11
(d) Contribution.
If the
indemnification provided for in this Section
2.08
is held
by a court or government agency of competent jurisdiction to be unavailable
to
any indemnified party or is insufficient to hold them harmless in respect of
any
Losses, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Loss in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
of
such indemnified party on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations; provided,
however,
that in
no event shall such Selling Holder be required to contribute an aggregate amount
in excess of the dollar amount of proceeds (net of Selling Expenses) received
by
such Selling Holder from the sale of Registrable Securities giving rise to
such
indemnification. The relative fault of the indemnifying party on the one hand
and the indemnified party on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact has been
made
by, or relates to, information supplied by such party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation which does not
take
account of the equitable considerations referred to herein. The amount paid
by
an indemnified party as a result of the Losses referred to in the first sentence
of this paragraph shall be deemed to include any legal and other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any Loss which is the subject of this paragraph. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who is not
guilty of such fraudulent misrepresentation.
(e) Other
Indemnification.
The
provisions of this Section
2.08
shall be
in addition to any other rights to indemnification or contribution which an
indemnified party may have pursuant to law, equity, contract or
otherwise.
Section
2.09 Rule
144 Reporting.
With a
view to making available the benefits of certain rules and regulations of the
Commission that may permit the sale of the Registrable Securities to the public
without registration, the Partnership agrees to use its commercially reasonable
efforts to:
(a) Make
and
keep public information regarding the Partnership available, as those terms
are
understood and defined in Rule 144 under the Securities Act, at all times from
and after the date hereof;
(b) File
with
the Commission in a timely manner all reports and other documents required
of
the Partnership under the Securities Act and the Exchange Act at all times
from
and after the date hereof; and
(c) So
long
as a Holder owns any Registrable Securities, furnish to such Holder forthwith
upon request a copy of the most recent annual or quarterly report of the
Partnership, and such other reports and documents so filed as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
12
Section
2.10 Transfer
or Assignment of Registration Rights.
The
rights to cause the Partnership to register Registrable Securities granted
to
the Purchasers by the Partnership under this Article
II
may be
transferred or assigned by any Purchaser to one or more transferee(s) or
assignee(s) of such Registrable Securities; provided,
however,
that
(a) unless such transferee is an Affiliate or a swap counterpart of such
Purchaser, each such transferee or assignee holds Registrable Securities
representing at least $15 million of the Purchased Units, based on the purchase
price per unit under the Purchase Agreement, (b) the Partnership is given
written notice prior to any said transfer or assignment, stating the name and
address of each such transferee and identifying the securities with respect
to
which such registration rights are being transferred or assigned, and (c) each
such transferee assumes in writing responsibility for its portion of the
obligations of such Purchaser under this Agreement.
Section
2.11 Limitation
on Subsequent Registration Rights.
From
and after the date hereof, the Partnership shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any current or future holder of any securities
of
the Partnership that would allow such current or future holder to require the
Partnership to include securities in any registration statement filed by the
Partnership on a basis that is superior in any way to the piggyback rights
granted to the Purchasers hereunder.
ARTICLE
III
MISCELLANEOUS
Section
3.01 Communications.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by facsimile, electronic mail, courier service or personal
delivery:
(a) if
to
Purchaser, to the address set forth in Schedule 8.07 to the Purchase
Agreement;
(b) if
to a
transferee of Purchaser, to such Holder at the address provided pursuant to
Section
2.10
above;
and
(c) if
to the
Partnership at 000 00xx
Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (facsimile: 303-___-____).
All
such
notices and communications shall be deemed to have been received at the time
delivered by hand, if personally delivered; when receipt acknowledged, if sent
via facsimile or sent via Internet electronic mail; and when actually received,
if sent by courier service or any other means.
Section
3.02 Successor
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including subsequent Holders of Registrable
Securities to the extent permitted herein.
Section
3.03 Assignment
of Rights.
All or
any portion of the rights and obligations of any Purchaser under this Agreement
may be transferred or assigned by such Purchaser in accordance with Section
2.10
hereof.
Section
3.04 Recapitalization,
Exchanges, Etc. Affecting the Common Units.
The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all units of the Partnership or any successor or assign
of the Partnership (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for or in substitution
of, the Registrable Securities, and shall be appropriately adjusted for
combinations, unit splits, recapitalizations and the like occurring after the
date of this Agreement.
Section
3.05 Specific
Performance.
Damages
in the event of breach of this Agreement by a party hereto may be difficult,
if
not impossible, to ascertain, and it is therefore agreed that each such Person,
in addition to and without limiting any other remedy or right it may have,
will
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and enforcing specifically
the terms and provisions hereof, and each of the parties hereto hereby waives
any and all defenses it may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or other equitable relief.
The existence of this right will not preclude any such Person from pursuing
any
other rights and remedies at law or in equity which such Person may
have.
13
Section
3.06 Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, including facsimile counterparts, each of
which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and
the
same Agreement.
Section
3.07 Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
Section
3.08 Governing
Law.
The
Laws of the State of New York shall govern this Agreement without regard to
principles of conflict of Laws.
Section
3.09 Severability
of Provisions.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting or impairing the validity or enforceability
of
such provision in any other jurisdiction.
Section
3.10 Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein with respect to the rights granted
by
the Partnership set forth herein. This Agreement and the Purchase Agreement
supersede all prior agreements and understandings between the parties with
respect to such subject matter.
Section
3.11 Amendment.
This
Agreement may be amended only by means of a written amendment signed by the
Partnership and the Holders of a majority of the then outstanding Registrable
Securities; provided,
however,
that no
such amendment shall materially and adversely affect the rights of any Holder
hereunder without the consent of such Holder.
Section
3.12 No
Presumption.
If any
claim is made by a party relating to any conflict, omission, or ambiguity in
this Agreement, no presumption or burden of proof or persuasion shall be implied
by virtue of the fact that this Agreement was prepared by or at the request
of a
particular party or its counsel.
Section
3.13 Aggregation
of Purchased Units.
All
Purchased Units held or acquired by Persons who are Affiliates of one another
shall be aggregated together for the purpose of determining the availability
of
any rights under this Agreement.
Section
3.14 Obligations
Limited to Parties to Agreement.
Each of
the Parties hereto covenants, agrees and acknowledges that no Person other
than
the Purchasers shall have any obligation hereunder and that, notwithstanding
that one or more of the Purchasers may be a corporation, partnership or limited
liability company, no recourse under this Agreement or under any documents
or
instruments delivered in connection herewith or therewith shall be had against
any former, current or future director, officer, employee, agent, general or
limited partner, manager, member, stockholder or Affiliate of any of the
Purchaser or any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or Affiliate of any
of
the foregoing, whether by the enforcement of any assessment or by any legal
or
equitable proceeding, or by virtue of any applicable Law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach
to,
be imposed on or otherwise by incurred by any former, current or future
director, officer, employee, agent, general or limited partner, manager, member,
stockholder or Affiliate of any of the Purchasers or any former, current or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the foregoing, as such, for any
obligations of the Purchasers under this Agreement or any documents or
instruments delivered in connection herewith or therewith or for any claim
based
on, in respect of or by reason of such obligation or its creation, except in
each case for any assignee of a Purchaser hereunder.
Section
3.15 Interpretation.
Article
and Section references to this Agreement, unless otherwise specified. All
references to instruments, documents, contracts and agreements are references
to
such instruments, documents, contracts and agreements as the same may be
amended, supplemented and otherwise modified from time to time, unless otherwise
specified. The word “including” shall mean “including but not limited to.”
Whenever any determination, consent or approval is to be made or given by a
Purchaser under this Agreement, such action shall be in such Purchaser’s sole
discretion unless otherwise specified.
[Signature
pages to follow]
14
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of
the
date first above written.
| DCP MIDSTREAM PARTNERS, LP | ||
| |
|
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| By: |
DCP Midstream Partners GP, LP,
its
General Partner
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| By: |
DCP
Midstream Partners GP, LLC,
its
General Partner
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| By: | /s/ Xxxxxx X. Xxxx | |
|
Name:
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Xxxxxx X. Xxxx |
|
| Title: | Vice President and Chief Financial Officer | |
15
| BANK OF AMERICA CAPITAL INVESTORS V, L.P. | ||
| |
|
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| By: |
Banc
of America Capital Management V, L.P.
its
General Partner
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| By: |
BACM
I GP, LLC
its
General Partner
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| By: | /s/ Xxxx Xxxxx | |
|
Name:
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Xxxx Xxxxx |
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| Title: | Authorized Signatory | |
| XXXXXX BROTHERS MLP OPPORTUNITY FUND L.P. | ||
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| By: |
Xxxxxx
Brothers MLP Opportunity Associates L.P.
its
General Partner
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| By: |
Brothers
MLP Opportunity Associates L.L.C.
its
General Partner
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| By: | /s/ Xxxx Xxxx | |
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Name:
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Xxxx Xxxx |
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| Title: | Vice President | |
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X. Xxxxx
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/s/ Xxxxxx
X. Xxxxxxx
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/s/ W.
Xxxx Xxx
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/s/ Xxxxxx
X. Xxxxxxxxx XX
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/s/ Xxxx
X. Xxxxxx
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X. XxXxxxx
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Xxxx
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17
