COMMON UNIT PURCHASE AGREEMENT BY AND AMONG EV ENERGY PARTNERS, L.P. AND THE PURCHASERS NAMED HEREIN
BY
AND AMONG
EV
ENERGY PARTNERS, L.P.
AND
THE
PURCHASERS NAMED HEREIN
This
COMMON UNIT PURCHASE AGREEMENT, dated as of February 27, 2007 (this
“Agreement”),
is by
and among EV Energy Partners, L.P., a Delaware limited partnership (the
“Company”),
and
each of the
Purchasers named in Schedule
2.01 (each,
a
“Purchaser”
and,
collectively, the “Purchasers”).
WHEREAS,
the Company desires to sell an aggregate of approximately $98,000,000 of Common
Units to the Purchasers, and the Purchasers desire to purchase an aggregate
of
approximately $98,000,000 of Common Units from the Company, each in accordance
with the provisions of this Agreement; and
WHEREAS,
the Company has agreed to provide the Purchasers with certain registration
rights with respect to the Purchased Common Units acquired pursuant to this
Agreement.
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 are hereby acknowledged, the Company and each of the Purchasers, severally
and not jointly, hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
As used
in this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated:
“8-K
Filing”
shall
have the meaning specified in Section 5.04.
“Action”
against
a Person means any lawsuit, action, proceeding, investigation or complaint
before any Governmental Authority, mediator or arbitrator.
“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”
shall
have the meaning specified in the introductory paragraph.
“Basic
Documents”
means,
collectively, this Agreement, the Registration Rights Agreement and any and
all
other agreements or instruments executed and delivered by the Parties to
evidence the execution, delivery and performance of this Agreement, and any
amendments, supplements, continuations or modifications thereto.
“Business
Day”
means
any day other than a Saturday, a Sunday or a legal holiday for commercial banks
in New York, New York.
“Buy-In”
shall
have the meaning specified in Section 8.08.
“Buy-In
Price”
shall
have the meaning specified in Section 8.08.
“Closing”
shall
have the meaning specified in Section 2.02.
“Closing
Date”
shall
have the meaning specified in Section 2.02.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time.
“Commission”
means
the United States Securities and Exchange Commission.
“Commitment
Amount”
means
the dollar amount set forth opposite each Purchaser’s name on Schedule
2.01.
“Common
Unit Price”
shall
have the meaning specified in Section 2.01(b).
“Common
Units”
means
the Common Units of the Company representing equity interests
therein.
“Company”
shall
have the meaning specified in the introductory paragraph.
“Company
Financial Statements”
shall
have the meaning specified in Section 3.03.
“Company
Material Adverse Effect”
means
any material and adverse effect on (i) the assets, liabilities, financial
condition, business, operations, prospects or affairs of the Company and its
Subsidiaries, taken as a whole, measured against those assets, liabilities,
financial condition, business, operations, prospects or affairs reflected in
the
Company SEC Documents, other than those occurring as a result of general
economic or financial conditions or any other developments that are not unique
to and do not have a material disproportionate impact on the Company and its
Subsidiaries but also affect other Persons who participate in or are engaged
in
the lines of business in which the Company and its Subsidiaries participate
or
are engaged, (ii) the ability of the Company and its Subsidiaries, taken as
a
whole, to carry out their business as of the date of this Agreement or to meet
their obligations under the Basic Documents on a timely basis or (iii) the
ability of the Company to consummate the transactions under any Basic
Document.
“Company
Organizational Document”
means,
collectively, the Certificate of Limited Partnership filed by the Company with
the Secretary of State of the State of Delaware and the Partnership
Agreement.
“Company
Organizational Law”
means
the Delaware Revised Uniform Limited Partnership Act.
“Company
SEC Documents”
shall
have the meaning specified in Section 3.03.
“Equity
Interests”
means,
collectively, the Common Units, the Subordinated Units, the General Partner
Interest and the Incentive Distribution Rights.
2
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended from time to time, and the
rules
and regulations of the Commission promulgated thereunder.
“GAAP”
means
generally accepted accounting principles in the United States of America in
effect from time to time.
“General
Partner”
shall
have the meaning specified in the Partnership Agreement.
“General
Partner Interest”
shall
have the meaning specified in the Partnership Agreement.
“Governing
Body”
means
the General Partner of the Company.
“Governmental
Authority”
shall
include the country, state, county, city and political subdivisions in which
any
Person or such Person’s Property is located or that exercises valid jurisdiction
over any such Person or such Person’s Property, and any court, agency,
department, commission, board, bureau or instrumentality of any of them and
any
monetary authorities that exercise valid jurisdiction over any such Person
or
such Person’s Property. Unless otherwise specified, all references to
Governmental Authority herein shall mean a Governmental Authority having
jurisdiction over, where applicable, the Company, its Subsidiaries or any of
their Property or any of the Purchasers.
“Incentive
Distribution Rights”
shall
have the meaning specified in the Partnership Agreement.
“Indemnified
Party”
shall
have the meaning specified in Section 7.01.
“Indemnifying
Party”
shall
have the meaning specified in Section 7.02.
“Law”
means
any federal, state, local or foreign order, writ, injunction, judgment,
settlement, award, decree, statute, law, rule or regulation.
“Lien”
means
any interest in Property securing an obligation owed to, or a claim by, a Person
other than the owner of the Property, whether such interest is based on the
common law, statute or contract, and whether such obligation or claim is fixed
or contingent, and including the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes.
“Lock-Up
Date”
means
the earlier of (i) 90 days from the Closing Date or (ii) the date that a
registration statement under the Securities Act to permit resale of the
Purchased Common Units is declared effective by the Commission.
“Partnership
Agreement”
means
the First Amended and Restated Agreement of Limited Partnership of the Company
dated as of September 29, 2006.
“Party”
or
“Parties”
means
the Company and the Purchasers, individually or collectively, as the case may
be.
3
“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.
“Property”
means
any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible.
“Purchase
Price”
means
the aggregate of each Purchaser’s Commitment Amount.
“Purchased
Common Units”
means
the Common Units to be issued and sold to the Purchasers pursuant to this
Agreement.
“Purchaser”
shall
have the meaning specified in the introductory paragraph.
“Purchaser
Material Adverse Effect”
means
any material and adverse effect on (i) the ability of a Purchaser to meet its
obligations under the Basic Documents on a timely basis or (ii) the ability
of a
Purchaser to consummate the transactions under any Basic Document.
“Purchasers”
shall
have the meaning specified in the introductory paragraph.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, substantially in the form of Exhibit
B,
to be
entered into at the Closing, among the Company and the Purchasers.
“Representatives”
of
any
Person means the Affiliates, control persons, officers, directors, managers,
employees, agents, counsel, investment bankers and other representatives of
such
Person.
“Securities
Act”
means
the Securities Act of 1933, as amended from time to time, and the rules and
regulations of the Commission promulgated thereunder.
“Stock
Exchange”
means
The Nasdaq Global Market.
“Subordinated
Units”
shall
have the meaning specified in the Partnership Agreement.
“Subsidiary”
means,
as to any Person, (i) any corporation or other entity of which a majority of
the
outstanding equity interest having by the terms thereof ordinary voting power
to
elect a majority of the board of directors of such corporation or other entity
(irrespective of whether or not at the time any equity interest of any other
class or classes of such corporation or other entity shall have or might have
voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or one or more of
its
Subsidiaries or (ii) any limited partnership in which such Person and its
Subsidiaries own equity interests entitling at a given time such Person and
its
Subsidiaries to a majority of the distributions of such limited partnership
if
such limited partnership were to be liquidated at such time.
“Unitholders”
shall
have the meaning specified in the Partnership Agreement.
4
Section
1.02. Accounting
Procedures and Interpretation.
Unless
otherwise specified in this Agreement, all accounting terms used herein shall
be
interpreted, all determinations with respect to accounting matters under this
Agreement shall be made, and all financial statements and certificates and
reports as to financial matters required to be furnished to the Purchasers
under
this Agreement shall be prepared, in accordance with GAAP applied on a
consistent basis during the periods involved (except, in the case of unaudited
statements, as permitted by Form 10-Q promulgated by the Commission) and in
compliance as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the Commission
with
respect thereto.
ARTICLE
II
SALE
AND PURCHASE
Section
2.01. Sale
and Purchase.
Subject
to the terms and conditions of this Agreement, at the Closing, the Company
hereby agrees to issue and sell to each Purchaser, and each Purchaser hereby
agrees, severally and not jointly, to purchase from the Company, the number
of
Purchased Common Units set forth opposite its name on Schedule
2.01.
Each
Purchaser agrees to pay the Company the Common Unit Price for each Purchased
Common Unit as set forth in Section 2.01(b). The respective obligations of
each
Purchaser under this Agreement are several and not joint with the obligations
of
any other Purchaser, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser under this Agreement.
The
failure or waiver of performance under this Agreement by any Purchaser, or
on
its behalf, does not excuse performance by any other Purchaser. Nothing
contained herein or in any other Basic Document, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as
a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or
as
a group with respect to such obligations or the transactions contemplated by
any
Basic Document. Except as otherwise provided in this Agreement or the other
Basic Documents, each Purchaser shall be entitled to independently protect
and
enforce its rights, including the rights arising out of this Agreement or out
of
the other Basic Documents, and it shall not be necessary for any other Purchaser
to be joined as an additional party in any proceeding for such
purpose.
(a) Common
Units.
The
number of Purchased Common Units to be issued and sold to each Purchaser is
set
forth opposite such Purchaser’s name on Schedule
2.01.
The
Purchased Common Units shall have those rights, preferences, privileges and
restrictions governing the Common Units as set forth in the Company
Organizational Document.
(b) Consideration.
The
amount per Common Unit each Purchaser will pay to the Company to purchase the
Purchased Common Units (the “Common
Unit Price”)
shall
be $24.90.
Section
2.02. Closing.
The
execution and delivery of the Basic Documents, the delivery of certificates
representing the Purchased Common Units, the payment by each Purchaser of its
respective Commitment Amount and execution and delivery of all other
instruments, agreements and other documents required by this Agreement (the
“Closing”)
shall
take place on the date hereof (the “Closing
Date”).
5
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Purchasers, on and as of the date of
this
Agreement and on and as of the Closing Date, as follows:
Section
3.01. Existence.
The
Company: (i) is a limited partnership duly organized, validly existing and
in
good standing under the Laws of the State of Delaware; (ii) has all requisite
partnership power, and has all material governmental licenses, authorizations,
consents and approvals, necessary to own its Properties and carry on its
business as its business is now being conducted as described in the Company
SEC
Documents, except where the failure to obtain such licenses, authorizations,
consents and approvals would not reasonably be expected to have a Company
Material Adverse Effect; and (iii) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualifications necessary, except where failure so to qualify would not
reasonably be expected to have a Company Material Adverse Effect.
Section
3.02. Capitalization
and Valid Issuance of Purchased Common Units.
(a) As
of the
date of this Agreement, and prior to the issuance and sale of the Purchased
Common Units, the issued and outstanding equity interests of the Company consist
of 4,495,000 Common Units, 3,100,000 Subordinated Units, the General Partner
Interest and the Incentive Distribution Rights. All of the outstanding Equity
Interests have been duly authorized and validly issued in accordance with
applicable Law and the Company Organizational Document and are fully paid (to
the extent required by applicable Law and under the Company Organizational
Document) and non-assessable (except as such non-assessability may be affected
by Sections 17-303, 17-607 and 17-804 of the Company Organizational
Law).
(b) Other
than the Company’s existing long-term incentive plan, the Company has no equity
compensation plans that contemplate the issuance of Equity Interests (or
securities convertible into or exchangeable for Equity Interests). The Company
has no outstanding indebtedness having the right to vote (or convertible into
or
exchangeable for securities having the right to vote) on any matters on which
the Unitholders may vote. Except for Common Units and phantom Common Units
issued pursuant to the Company’s existing long-term incentive plan, as
contemplated by this Agreement or as are contained in the Company Organizational
Document, there are no outstanding or authorized (i) options, warrants,
preemptive rights, subscriptions, calls or other rights, convertible securities,
agreements, claims or commitments of any character obligating the Company or
any
of its Subsidiaries to issue, transfer or sell any equity interests in the
Company or any of its Subsidiaries or securities convertible into or
exchangeable for such equity interests, (ii) obligations of the Company or
any
of its Subsidiaries to repurchase, redeem or otherwise acquire any equity
interests in the Company or any of its Subsidiaries or any such securities
or
agreements listed in clause (i) of this sentence or (iii) voting trusts or
similar agreements to which the Company or any of its Subsidiaries is a party
with respect to the voting of the equity interests of the Company or any of
its
Subsidiaries.
6
(c) (i)
All
of the issued and outstanding equity interests of each of the Company’s
Subsidiaries are owned, directly or indirectly, by the Company free and clear
of
any Liens (except for such restrictions as may exist under applicable Law and
except for such Liens as may be imposed under the Company’s or its Subsidiaries’
credit facilities filed as exhibits to the Company SEC Documents), and all
such
ownership interests have been duly authorized and validly issued and are fully
paid (to the extent required by applicable Law and the organizational documents
of the Company’s Subsidiaries, as applicable) and non-assessable (except
as
non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of
the
Company Organizational Law, the organizational documents of the Company’s
Subsidiaries or the Delaware Limited Liability Company Act or any Laws of any
other jurisdiction of organization of a Subsidiary of the Company, as
applicable)
and
free of preemptive rights, with no personal liability attaching to the ownership
thereof, and (ii) except as disclosed in the Company SEC Documents, neither
the
Company nor any of its Subsidiaries owns any shares of capital stock or other
securities of, or interest in, any other Person, or is obligated to make any
capital contribution to or other investment in any other Person.
(d) The
offer
and sale of the Purchased Common Units and the interests represented thereby
will be duly authorized by the Company pursuant to the Company Organizational
Document prior to the Closing and, when issued and delivered to the Purchasers
against payment therefor in accordance with the terms of this Agreement, will
be
validly issued, fully paid (to the extent required by applicable Law and the
Company Organizational Document) and non-assessable (except as such
non-assessability may be affected by Sections 17-303, 17-607 and 17-804 of
the
Company Organizational Law) and will be free of any and all Liens and
restrictions on transfer, other than restrictions on transfer under the Company
Organizational Document, the Registration Rights Agreement and applicable state
and federal securities Laws and other than such Liens as are created by the
Purchasers.
(e) The
Purchased Common Units will be issued in compliance with all applicable rules
of
the Stock Exchange. The Company has submitted to the Stock Exchange a
Notification Form: Listing of Additional Units with respect to the Purchased
Common Units. The Company’s currently outstanding Common Units are quoted on the
Stock Exchange and the Company has not received any notice of
delisting.
(f) The
Purchased Common Units shall have those rights, preferences, privileges and
restrictions governing the Common Units as set forth in the Company
Organizational Document. A true and correct copy of the Partnership Agreement,
as amended through the date hereof, has been filed by the Company with the
Commission on October 5, 2006 as Exhibit 3.1 to the Company’s Form
8-K.
Section
3.03. Company
SEC Documents.
Since
the date of the Company’s initial public offering, (i) the Company has filed
with the Commission all forms, registration statements, reports, schedules
and
statements required to be filed by it under the Exchange Act or the Securities
Act (all such documents filed on or prior to the date of this Agreement,
collectively, the “Company
SEC Documents”)
and
(ii) the Company has timely filed with the Commission all Company SEC Documents
described in General Instruction I.A.3.(b) of Form S-3. The Company SEC
Documents, including any audited or unaudited financial statements and any
notes
thereto or schedules included therein (the “Company
Financial Statements”),
at
the time filed (in the case of registration statements, solely on the dates
of
effectiveness) (except to the extent corrected by a subsequently filed Company
SEC Document filed prior to the date of this Agreement) (i) did not contain
any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary in order to make the statements therein, in
light
of the circumstances under which they were made, not misleading, (ii) complied
in all material respects with the applicable requirements of the Exchange Act
and the Securities Act, as the case may be, (iii) complied as to form in all
material respects with applicable accounting requirements and with the published
rules and regulations of the Commission with respect thereto, (iv) were prepared
in accordance with GAAP applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q of the Commission) and (v)
fairly present (subject in the case of unaudited statements to normal, recurring
and year-end audit adjustments) in all material respects the consolidated
financial position and status of the business of the Company as of the dates
thereof and the consolidated results of its operations and cash flows for the
periods then ended. Deloitte & Touche LLP is an independent registered
public accounting firm with respect to the Company and has not resigned or
been
dismissed as independent registered public accountants of the Company as a
result of or in connection with any disagreement with the Company on any matter
of accounting principles or practices, financial statement disclosure or
auditing scope or procedures.
7
Section
3.04. No
Material Adverse Change.
Except
as set forth in or contemplated by the Company SEC Documents, since its initial
public offering, the Company and its Subsidiaries have conducted their business
in the ordinary course, consistent with past practice, and there has been no
(i)
change that has had or would reasonably be expected to have a Company Material
Adverse Effect, (ii) acquisition or disposition of any material asset by the
Company or any of its Subsidiaries or any contract or arrangement therefor,
otherwise than for fair value in the ordinary course of business, (iii) material
change in the Company’s accounting principles, practices or methods or (iv)
incurrence of material indebtedness.
Section
3.05. Litigation.
Except
as set forth in the Company SEC Documents, there is no Action pending or, to
the
knowledge of the Company, contemplated or threatened against the Company or
any
of its Subsidiaries or any of their respective officers, directors or
Properties, which (individually or in the aggregate) reasonably would be
expected to have a Company Material Adverse Effect or which challenges the
validity of this Agreement.
Section
3.06. No
Breach.
The
execution, delivery and performance by the Company of the Basic Documents to
which it is a party and all other agreements and instruments in connection
with
the transactions contemplated by the Basic Documents, and compliance by the
Company with the terms and provisions hereof and thereof, do not and will not
(a) violate any provision of any Law, governmental permit, determination or
award having applicability to the Company or any of its Subsidiaries or any
of
their respective Properties, (b) conflict with or result in a violation of
any
provision of any of the organizational documents of the Company or any of its
Subsidiaries, (c) require any consent, approval or notice under or result in
a
violation or breach of or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under (i) any note, bond, mortgage, license, or loan or credit
agreement to which the Company or any of its Subsidiaries is a party or by
which
the Company or any of its Subsidiaries or any of their respective Properties
may
be bound or (ii) any other agreement, instrument or obligation, or (d) result
in
or require the creation or imposition of any Lien upon or with respect to any
of
the Properties now owned or hereafter acquired by the Company or any of its
Subsidiaries, except in the cases of clauses (a), (c) and (d) where such
violation, default, breach, termination, cancellation, failure to receive
consent or approval, or acceleration with respect to the foregoing provisions
of
this Section 3.06 would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.
8
Section
3.07. Authority.
The
Company has all necessary partnership power and authority to execute, deliver
and perform its obligations under the Basic Documents to which it is a
party and
to
consummate the transactions contemplated thereby; the execution, delivery and
performance by the Company of each of the Basic Documents to which it is a
party, and the consummation of the transactions contemplated thereby, have
been
duly authorized by all necessary action on its part; and the Basic Documents
constitute the legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, except as such enforceability may be limited
by
bankruptcy, insolvency, fraudulent transfer and similar Laws affecting
creditors’ rights generally or by general principles of equity, including
principles of commercial reasonableness, fair dealing and good faith. Except
as
contemplated by this Agreement, no approval by the Unitholders is required
as a
result of the Company’s issuance and sale of the Purchased Common
Units.
Section
3.08. Approvals.
Except
as contemplated by this Agreement or as required by the Commission in connection
with the Company’s obligations under the Registration Rights Agreement, no
authorization, consent, approval, waiver, license, qualification or written
exemption from, nor any filing, declaration, qualification or registration
with,
any Governmental Authority or any other Person is required in connection with
the execution, delivery or performance by the Company of any of the Basic
Documents to which it is a party, except where the failure to receive such
authorization, consent, approval, waiver, license, qualification or written
exemption or to make such filing, declaration, qualification or registration
would not, individually or in the aggregate, reasonably be expected to have
a
Company Material Adverse Effect.
Section
3.09. MLP
Status.
The
Company met for each taxable year since its formation, and the Company expects
to meet for the taxable year ending December 31, 2007, the gross income
requirements of Section 7704(c)(2) of the Code, and accordingly the Company
is
not, and does not reasonably expect to be, taxed as a corporation for U.S.
federal income tax purposes or for applicable tax purposes. The Company or
any
of its Subsidiaries has conducted business, owned Property or otherwise been
subject to tax for the taxable year ended December 31, 2006 only in Delaware,
Louisiana, Oklahoma, Ohio, Pennsylvania, Texas and West Virginia, and the
Company and any of its Subsidiaries expects to conduct business, own Property
or
otherwise be subject to tax only in such states and Michigan for the taxable
year ending December 31, 2007.
Section
3.10. Investment
Company Status.
The
Company is not an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
9
Section
3.11. Offering.
Assuming the accuracy of the representations and warranties of the Purchasers
contained in this Agreement, the sale and issuance of the Purchased Common
Units
pursuant to this Agreement are exempt from the registration requirements of
the
Securities Act, and neither the Company nor any authorized Representative acting
on its behalf has taken or will take any action hereafter that would cause
the
loss of such exemption.
Section
3.12. Certain
Fees.
No fees
or commissions will be payable by the Company to brokers, finders or investment
bankers with respect to the sale of any of the Purchased Common Units or the
consummation of the transactions contemplated by this Agreement. The Purchasers
shall not be liable for any such fees or commissions. The Company agrees that
it
will indemnify and hold harmless each of the Purchasers from and against any
and
all claims, demands or liabilities for broker’s, finder’s, placement or other
similar fees or commissions incurred by the Company or alleged to have been
incurred by the Company in connection with the sale of Purchased Common Units
or
the consummation of the transactions contemplated by this
Agreement.
Section
3.13. No
Side Agreements.
Except
for the confidentiality agreements entered into by and between each of the
Purchasers and the Company, there are no other agreements by, among or between
the Company or its Affiliates, on the one hand, and any of the Purchasers or
their Affiliates, on the other hand, with respect to the transactions
contemplated hereby nor promises or inducements for future transactions between
or among any of such parties.
Section
3.14. Internal
Accounting Controls.
Except
as disclosed in the Company SEC Documents, the Company and its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization and (iv)
the recorded accountability for assets is compared with the existing assets
at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company is not aware of any material failure of such internal
accounting controls.
Section
3.15. Preemptive
Rights or Registration Rights.
Except
(i) as set forth in the Company Organizational Document, (ii) as set forth
in
the other organizational documents of the Company and its Subsidiaries, (iii)
as
provided in the Basic Documents or (iv) for existing awards under the Company’s
long-term incentive plan, there are no preemptive rights or other rights to
subscribe for or to purchase, nor any restriction upon the voting or transfer
of, any capital stock or equity interests of the Company or any of its
Subsidiaries, in each case pursuant to any other agreement or instrument to
which any of such Persons is a party or by which any one of them may be bound.
Neither the execution of this Agreement nor the issuance of the Purchased Common
Units as contemplated by this Agreement gives rise to any rights for or relating
to the registration of any securities of the Company, other than pursuant to
the
Registration Rights Agreement.
Section
3.16. Insurance.
The
Company and its Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks as the Company believes in its
discretion are prudent for its businesses. The Company does not have any reason
to believe that it or any Subsidiary will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business.
10
Section
3.17. Acknowledgment
Regarding Purchase of Purchased Common Units.
The
Company acknowledges and agrees that (i) each of the Purchasers is participating
in the transactions contemplated by this Agreement and the other Basic Documents
at the Company’s request and the Company has concluded that such participation
is in the Company’s best interest and is consistent with the Company’s
objectives and (ii) each of the Purchasers is acting solely in the capacity
of
an arm’s length purchaser. The Company further acknowledges that no Purchaser is
acting or has acted as an advisor, agent or fiduciary of the Company (or in
any
similar capacity) with respect to this Agreement or the other Basic Documents
and any advice given by any Purchaser or any of its respective Representatives
in connection with this Agreement or the other Basic Documents is merely
incidental to the Purchasers’ purchase of Purchased Common Units. The Company
further represents to each Purchaser that the Company’s decision to enter into
this Agreement has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its
Representatives.
Section
3.18. Anti-Takeover
Laws.
Each of
the Company and its Governing Body has taken all action required to be taken
by
it in order to exempt the execution, delivery and performance of this Agreement
and the other Basic Documents and the issuance of the Purchased Common Units
from, and each of the foregoing is hereby exempt from, the requirements of
any
“moratorium”, “control share”, “fair price”, “affiliate transaction”, “business
combination” or other anti-takeover Laws of any jurisdiction.
Section
3.19. Compliance
with Laws.
Neither
the Company nor any of its Subsidiaries is in violation of any judgment, decree
or order or any Law applicable to the Company or its Subsidiaries, except as
would not, individually or in the aggregate, have a Company Material Adverse
Effect. The Company and its Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate regulatory authorities
necessary to conduct their respective businesses, except where the failure
to
possess such certificates, authorizations or permits would not have,
individually or in the aggregate, a Company Material Adverse Effect, and neither
the Company nor any such Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit, except where such potential revocation or modification
would not have, individually or in the aggregate, a Company Material Adverse
Effect. None of the Company, any of its Subsidiaries or any director, officer,
agent, employee or other Person acting on behalf of the Company or any of its
Subsidiaries has, in the course of its actions for, or on behalf of, the Company
or any of its Subsidiaries: (i) used any Company funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from Company funds; (iii)
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign
or
domestic government official or employee.
11
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF EACH PURCHASER
Each
Purchaser, severally and not jointly, represents and warrants to the Company
with respect to itself, on and as of the date of this Agreement and on and
as of
the Closing Date, as follows:
Section
4.01. Valid
Existence.
Such
Purchaser (i) is duly organized, validly existing and in good standing under
the
Laws of its respective jurisdiction of organization and (ii) has all requisite
power, and has all material governmental licenses, authorizations, consents
and
approvals, necessary to own its Properties and carry on its business as its
business is now being conducted, except where the failure to obtain such
licenses, authorizations, consents and approvals would not have and would not
reasonably be expected to have a Purchaser Material Adverse Effect.
Section
4.02. No
Breach.
The
execution, delivery and performance by such Purchaser of the Basic Documents
to
which it is a party and all other agreements and instruments in connection
with
the transactions contemplated by the Basic Documents to which it is a party,
and
compliance by such Purchaser with the terms and provisions hereof and thereof
and the purchase of the Purchased Common Units by such Purchaser do not and
will
not (a) violate any provision of any Law, governmental permit, determination
or
award having applicability to such Purchaser or any of its Properties, (b)
conflict with or result in a violation of any provision of the organizational
documents of such Purchaser or (c) require any consent (other than standard
internal consents), approval or notice under or result in a violation or breach
of or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration) under
(i) any note, bond, mortgage, license, or loan or credit agreement to which
such
Purchaser is a party or by which such Purchaser or any of its Properties may
be
bound or (ii) any other such agreement, instrument or obligation, except in
the
case of clauses (a) and (c) where such violation, default, breach, termination,
cancellation, failure to receive consent or approval, or acceleration with
respect to the foregoing provisions of this Section 4.02 would not, individually
or in the aggregate, reasonably be expected to have a Purchaser Material Adverse
Effect.
Section
4.03. Investment.
The
Purchased Common Units are being acquired for such Purchaser’s own account, or
the accounts of clients for whom such Purchaser exercises discretionary
investment authority (all of whom such Purchaser represents and warrants are
“accredited investors” within the meaning of Rule 501 of Regulation D
promulgated by the Commission pursuant to the Securities Act), not as a nominee
or agent, and with no present intention of distributing the Purchased Common
Units or any part thereof, and such Purchaser has no present intention of
selling or granting any participation in or otherwise distributing the same
in
any transaction in violation of the securities Laws of the United States of
America or any state, without prejudice, however, to such Purchaser’s right at
all times to sell or otherwise dispose of all or any part of the Purchased
Common Units under a registration statement under the Securities Act and
applicable state securities Laws or under an exemption from such registration
available thereunder (including, if available, Rule 144 under the Securities
Act). If such Purchaser should in the future decide to dispose of any of the
Purchased Common Units, such Purchaser understands and agrees (a) that it may
do
so only (i) in compliance with the Securities Act and applicable state
securities Law, as then in effect, or pursuant to an exemption therefrom or
(ii)
in the manner contemplated by any registration statement pursuant to which
such
securities are being offered, and (b) that stop-transfer instructions to that
effect will be in effect with respect to such securities. Notwithstanding the
foregoing, each Purchaser may at any time enter into one or more total return
swaps with respect to such Purchaser’s Purchased Common Units with a third party
provided that such transactions are exempt from registration under the
Securities Act.
12
Section
4.04. Nature
of Purchaser.
Such
Purchaser represents and warrants to, and covenants and agrees with, the Company
that (a) it is an “accredited investor” within the meaning of Rule 501 of
Regulation D promulgated by the Commission pursuant to the Securities Act and
(b) by reason of its business and financial experience it has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in
the
Purchased Common Units, is able to bear the economic risk of such investment
and, at the present time, would be able to afford a complete loss of such
investment.
Section
4.05. Receipt
of Information; Authorization.
Such
Purchaser acknowledges that it has (a) had access to the Company SEC Documents
and (b) been provided a reasonable opportunity to ask questions of and receive
answers from Representatives of the Company regarding the matters described
therein.
Section
4.06. Restricted
Securities.
Such
Purchaser understands that the Purchased Common Units it is purchasing are
characterized as “restricted securities” under the federal securities Laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such Laws and applicable regulations
such securities may be resold without registration under the Securities Act
only
in certain limited circumstances. In this connection, such Purchaser represents
that it is knowledgeable with respect to Rule 144 under the Securities
Act.
Section
4.07. Certain
Fees.
No fees
or commissions will be payable by such Purchaser to brokers, finders or
investment bankers with respect to the sale of any of the Purchased Common
Units
or the consummation of the transactions contemplated by this Agreement. The
Company will not be liable for any such fees or commissions. Such Purchaser
agrees, severally and not jointly with the other Purchasers, that it will
indemnify and hold harmless the Company from and against any and all claims,
demands or liabilities for broker’s, finder’s, placement or other similar fees
or commissions incurred by such Purchaser or alleged to have been incurred
by
such Purchaser in connection with the purchase of Purchased Common Units or
the
consummation of the transactions contemplated by this Agreement.
Section
4.08. Legend.
It is
understood that the certificates evidencing the Purchased Common Units initially
will bear the following legend: “These securities have not been registered under
the Securities Act of 1933, as amended. These securities may not be sold,
offered for sale, pledged (except in connection with a bona fide margin account
or other loan or financing arrangement secured by these securities) or
hypothecated in the absence of a registration statement in effect with respect
to the securities under such Act or pursuant to an exemption from registration
thereunder and, in the case of a transaction exempt from registration, unless
sold pursuant to Rule 144 under such Act or the issuer has received
documentation reasonably satisfactory to it that such transaction does not
require registration under such Act.” For the avoidance of doubt, the Purchased
Common Units may be pledged in connection with a bona fide margin account or
other loan or financing arrangement secured by such Purchased Common Units
and
such pledge shall not be deemed to be a transfer, sale or assignment of such
Purchased Common Units, and no buyer effecting such a pledge shall be required
to provide the Company with any notice thereof or otherwise make any delivery
to
the Company pursuant to this Agreement or any other Basic Document.
13
Section
4.09. No
Side Agreements.
Except
for the confidentiality agreements entered into by and between such Purchaser
and the Company, there are no other agreements by, among or between the Company
or its Affiliates, on the one hand, and such Purchaser or its Affiliates, on
the
other hand, with respect to the transactions contemplated hereby nor promises
or
inducements for future transactions between or among any of such parties.
Notwithstanding the foregoing, with respect to Xxxxxx Brothers Inc., the
representation made in this Section 4.09 is made only by Xxxxxx Brothers MLP
Partners, L.P., as currently configured, and does not apply to Xxxxxx Brothers
Inc. or any of its Affiliates, other than Xxxxxx Brothers MLP Partners, L.P.,
as
currently configured.
ARTICLE
V
COVENANTS
Section
5.01. Subsequent
Public Offerings.
Without
the written consent of the holders of a majority of the Purchased Common Units,
from the date of this Agreement until the Lock-Up Date, the Company shall not,
and shall cause its directors, officers and Affiliates not to, grant, issue
or
sell any Common Units or other equity or voting securities of the Company,
any
securities convertible into or exchangeable therefor or take any other action
that may result in the issuance of any of the foregoing, other than (i) the
issuance of the Purchased Common Units, (ii)
the
issuance of Common Units or options to purchase Common Units or phantom Common
Units granted pursuant to the Company’s existing long-term incentive
plan,
(iii)
the
issuance or sale of Common Units issued or sold in a registered public offering
to
finance future acquisitions that are accretive to cash flow per Common Unit
(or
the repayment of indebtedness incurred in connection with such accretive
acquisitions)
at a
price no less than 110% of the Common Unit Price or
in a
private offering to
finance future acquisitions that are accretive to cash flow per Common Unit
(or
the repayment of indebtedness incurred in connection with such accretive
acquisitions)
and (iv)
the issuance of Common Units as purchase price consideration in connection
with
future acquisitions that are accretive to cash flow per Common Unit.
Notwithstanding the foregoing, the Company shall not, and shall cause its
directors, officers and Affiliates not to, sell, offer for sale or solicit
offers to buy any security (as defined in the Securities Act) that would be
integrated with the sale of the Purchased Common Units in a manner that would
require the registration under the Securities Act of the sale of the Purchased
Common Units to the Purchasers.
Section
5.02. Purchaser
Lock-Up.
Without
the prior written consent of the Company, each Purchaser agrees that from and
after the Closing it will not sell any of its Purchased Common Units prior
to
the Lock-Up Date; provided,
however,
that
each Purchaser may: (i) enter into one or more total return swaps or similar
transactions at any time with respect to the Purchased Common Units purchased
by
such Purchaser; or (ii) transfer its Purchased Common Units to an Affiliate
of
such Purchaser or to any other Purchaser or an Affiliate of such other Purchaser
provided that such Affiliate agrees to the restrictions in this Section
5.02.
14
Section
5.03. Taking
of Necessary Action.
Each of
the Parties hereto shall use its commercially reasonable efforts promptly to
take or cause to be taken all action and promptly to do or cause to be done
all
things necessary, proper or advisable under applicable Law and regulations
to
consummate and make effective the transactions contemplated by this Agreement.
Without limiting the foregoing, the Company and each Purchaser will, and the
Company shall cause each of its Subsidiaries to, use its commercially reasonable
efforts to make all filings and obtain all consents of Governmental Authorities
that may be necessary or, in the reasonable opinion of the Purchasers or the
Company, as the case may be, advisable for the consummation of the transactions
contemplated by this Agreement and the other Basic Documents.
Section
5.04. Non-Disclosure;
Interim Public Filings.
Before
8:30 a.m., New York Time, on the first Business Day following the Closing Date,
the Company shall issue a press release acceptable to the Purchasers disclosing
all material terms of the transactions contemplated hereby and file a Current
Report on Form 8-K with the Commission (the “8-K
Filing”)
describing the terms of the transactions contemplated by this Agreement and
the
other Basic Documents and including as exhibits to such Current Report on Form
8-K this Agreement and the other Basic Documents, in the form required by the
Exchange Act. Thereafter, the Company shall timely file any filings and notices
required by the Commission or applicable Law with respect to the transactions
contemplated hereby and provide copies thereof to the Purchasers promptly after
filing. Except with respect to the 8-K Filing and the press release referenced
above (a copy of which will be provided to the Purchasers for their review
as
early as practicable prior to its filing), the Company shall, at least two
Business Days prior to the filing or dissemination of any disclosure required
by
this Section 5.04, provide a copy thereof to the Purchasers for their review.
The Company and the Purchasers shall consult with each other in issuing any
press releases or otherwise making public statements or filings and other
communications with the Commission or any regulatory agency or the Stock
Exchange (or other exchange on which securities of the Company are listed or
traded) with respect to the transactions contemplated hereby, and neither Party
shall issue any such press release or otherwise make any such public statement,
filing or other communication without the prior consent of the other, except
if
such disclosure is required by Law, in which case the disclosing Party shall
promptly provide the other Party with prior notice of such public statement,
filing or other communication. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any press release, without the prior written consent of such
Purchaser except to the extent the names of the Purchasers are included in
this
Agreement as filed as an exhibit to the 8-K Filing and the press release
referred to in the first sentence above. The Company shall not, and shall cause
each of its respective Representatives not to, provide any Purchaser with any
material non-public information regarding the Company from and after the
issuance of the above-referenced press release without the express written
consent of such Purchaser.
Section
5.05. Use
of
Proceeds.
The
Company shall use the collective proceeds from the sale of the Purchased Common
Units to repay indebtedness.
15
Section
5.06. Tax
Information.
The
Company shall cooperate with the Purchasers and provide the Purchasers with
any
reasonably requested tax information related to their ownership of the Purchased
Common Units.
ARTICLE
VI
CLOSING
DELIVERIES
Section
6.01. Company
Deliveries.
At the
Closing, subject to the terms and conditions of this Agreement, the Company
shall have delivered, or caused to be delivered, to each Purchaser:
(a) the
Purchased Common Units by delivering certificates (bearing the legend set forth
in Section 4.08) evidencing such Purchased Common Units at the Closing, all
free
and clear of any Liens, encumbrances or interests of any other
party;
(b) an
opinion addressed to the Purchasers from outside legal counsel to the Company,
dated the Closing Date, substantially similar in substance to the form of
opinion attached as Exhibit
A;
(c) the
Registration Rights Agreement in substantially the form of Exhibit
B,
which
shall have been duly executed by the Company;
(d) a
certificate of the Secretary of the Company, dated as of the Closing Date,
as to
certain matters;
(e) a
certificate dated as of a recent date of the Secretary of State of the State
of
Delaware with respect to the due organization and good standing in the State
of
Delaware of the Company; and
(f) a
receipt, dated the Closing Date, executed by the Company and delivered to each
Purchaser certifying that the Company has received the Purchase Price with
respect to the Purchased Common Units issued and sold to each such
Purchaser.
Section
6.02. Purchaser
Deliveries.
At the
Closing, subject to the terms and conditions of this Agreement, each Purchaser
shall have delivered, or caused to be delivered, to the Company:
(a) payment
to the Company of such Purchaser’s Commitment Amount by wire transfer(s) of
immediately available funds to an account designated in writing (including
via
email) by the Company; and
(b) the
Registration Rights Agreement in substantially the form of Exhibit
B,
which
shall have been duly executed by each Purchaser.
16
ARTICLE
VII
INDEMNIFICATION,
COSTS AND EXPENSES
Section
7.01. Indemnification
by the Company.
The
Company agrees to indemnify each Purchaser and its Representatives
(collectively, “Indemnified
Parties”)
from,
and hold each of them harmless against, any and all actions, suits, proceedings
(including any investigations, litigation or inquiries), demands and causes
of
action, and, in connection therewith, and promptly upon demand, pay and
reimburse each of them for all costs, losses, liabilities, damages or expenses
of any kind or nature whatsoever, including the reasonable fees and
disbursements of counsel and all other reasonable expenses incurred in
connection with investigating, defending or preparing to defend any such matter
that may be incurred by them or asserted against or involve any of them as
a
result of, arising out of or in any way related to (i) any actual or proposed
use by the Company of the proceeds of any sale of the Purchased Common Units
or
(ii) the breach of any of the representations, warranties or covenants of the
Company contained herein; provided that such claim for indemnification relating
to a breach of a representation or warranty is made prior to the expiration
of
such representation or warranty.
Section
7.02. Indemnification
Procedure.
Promptly after any Indemnified Party has received notice of any indemnifiable
claim hereunder, or the commencement of any action or proceeding by a third
party, which the Indemnified Party believes in good faith is an indemnifiable
claim under this Agreement, the Indemnified Party shall give the indemnitor
hereunder (the “Indemnifying
Party”)
written notice of such claim or the commencement of such action or proceeding,
but failure to so notify the Indemnifying Party will not relieve the
Indemnifying Party from any liability it may have to such Indemnified Party
hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure. Such notice shall state the nature and the basis
of
such claim to the extent then known. The Indemnifying Party shall have the
right
to defend and settle, at its own expense and by its own counsel who shall be
reasonably acceptable to the Indemnified Party, any such matter as long as
the
Indemnifying Party pursues the same diligently and in good faith. If the
Indemnifying Party undertakes to defend or settle, it shall promptly notify
the
Indemnified Party of its intention to do so, and the Indemnified Party shall
cooperate with the Indemnifying Party and its counsel in all commercially
reasonable respects in the defense thereof and the settlement thereof. Such
cooperation shall include furnishing the Indemnifying Party with any books,
records and other information reasonably requested by the Indemnifying Party
and
in the Indemnified Party’s possession or control. Such cooperation of the
Indemnified Party shall be at the cost of the Indemnifying Party. After the
Indemnifying Party has notified the Indemnified Party of its intention to
undertake to defend or settle any such asserted liability, and for so long
as
the Indemnifying Party diligently pursues such defense, the Indemnifying Party
shall not be liable for any additional legal expenses incurred by the
Indemnified Party in connection with any defense or settlement of such asserted
liability; provided,
however,
that
the Indemnified Party shall be entitled (i) at its expense, to participate
in
the defense of such asserted liability and the negotiations of the settlement
thereof and (ii) if (A) the Indemnifying Party has failed to assume the defense
or employ counsel reasonably acceptable to the Indemnified Party or (B) 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 in addition 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
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the Indemnifying Party as incurred.
Notwithstanding any other provision of this Agreement, the Indemnifying Party
shall not settle any indemnified claim without the consent of the Indemnified
Party, unless the settlement thereof imposes no liability or obligation on,
involves no admission of wrongdoing or malfeasance by, and includes a complete
release from liability of, the Indemnified Party.
17
ARTICLE
VIII
MISCELLANEOUS
Section
8.01. Interpretation.
Article, Section, Schedule and Exhibit references are 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 the Company has an obligation under the
Basic Documents, the expense of complying with such obligation shall be an
expense of the Company unless otherwise specified. 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. If any provision in the Basic Documents is held to be illegal,
invalid, not binding or unenforceable, such provision shall be fully severable
and the Basic Documents shall be construed and enforced as if such illegal,
invalid, not binding or unenforceable provision had never comprised a part
of
the Basic Documents, and the remaining provisions shall remain in full force
and
effect. The Basic Documents have been reviewed and negotiated by sophisticated
parties with access to legal counsel and shall not be construed against the
drafter.
Section
8.02. Survival
of Provisions.
The
representations and warranties set forth in this Agreement shall survive the
execution and delivery of this Agreement indefinitely. The
covenants made in this Agreement or any other Basic Document shall survive
the
closing of the transactions described herein and remain operative and in full
force and effect regardless of acceptance of any of the Purchased Common Units
and payment therefor and repayment, conversion, exercise or repurchase thereof.
All indemnification obligations of the Company and the Purchasers pursuant
to
Section 3.12, Section 4.07 and Article VII shall remain operative and in full
force and effect unless such obligations are expressly terminated in a writing
by the Parties referencing the particular Article or Section, regardless of
any
purported general termination of this Agreement.
Section
8.03. No
Waiver; Modifications in Writing.
(a) Delay.
No
failure or delay on the part of any Party in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to a Party at law or in equity or otherwise.
18
(b) Specific
Waiver.
Except
as otherwise provided in this Agreement or the Registration Rights Agreement,
no
amendment, waiver, consent, modification or termination of any provision of
this
Agreement or any other Basic Document shall be effective unless signed by each
of the Parties or each of the original signatories thereto affected by such
amendment, waiver, consent, modification or termination. Any amendment,
supplement or modification of or to any provision of this Agreement or any
other
Basic Document, any waiver of any provision of this Agreement or any other
Basic
Document and any consent to any departure by the Company from the terms of
any
provision of this Agreement or any other Basic Document shall be effective
only
in the specific instance and for the specific purpose for which made or given.
Except where notice is specifically required by this Agreement, no notice to
or
demand on any Party in any case shall entitle any Party to any other or further
notice or demand in similar or other circumstances.
Section
8.04. Binding
Effect; Assignment.
(a) Binding
Effect.
This
Agreement shall be binding upon the Company, each Purchaser, and their
respective successors and permitted assigns. Except as expressly provided in
this Agreement, this Agreement shall not be construed so as to confer any right
or benefit upon any Person other than the Parties to this Agreement and as
provided in Article VII, and their respective successors and permitted
assigns.
(b) Assignment
of Purchased Common Units.
All or
any portion of a Purchaser’s Purchased Common Units purchased pursuant to this
Agreement may be sold, assigned or pledged by such Purchaser, subject to
compliance with applicable securities Laws, Section 5.02 and the Registration
Rights Agreement.
(c) Assignment
of Rights.
Each
Purchaser may assign all or any portion of its rights and obligations under
this
Agreement without the consent of the Company (i) to any Affiliate of such
Purchaser or (ii) in connection with a total return swap or similar transaction
with respect to the Purchased Common Units purchased by such Purchaser, and
in
each case the assignee shall be deemed to be a Purchaser hereunder with respect
to such assigned rights or obligations and shall agree to be bound by the
provisions of this Agreement. Except as expressly permitted by this Section
8.04(c), such rights and obligations may not otherwise be transferred except
with the prior written consent of the Company (which consent shall not be
unreasonably withheld), in which case the assignee shall be deemed to be a
Purchaser hereunder with respect to such assigned rights or obligations and
shall agree to be bound by the provisions of this Agreement.
Section
8.05. Aggregation
of Purchased Common Units.
All
Purchased Common 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
8.06. Confidentiality
and Non-Disclosure.
Notwithstanding anything herein to the contrary, each Purchaser that has
executed a confidentiality agreement in favor of the Company shall continue
to
be bound by such confidentiality agreement in accordance with the terms thereof
until the Company discloses on Form 8-K with the Commission the transactions
contemplated hereby.
19
Section
8.07. Communications.
All
notices and demands provided for hereunder shall be in writing and shall be
given by regular mail, registered or certified mail, return receipt requested,
facsimile, air courier guaranteeing overnight delivery, electronic mail or
personal delivery to the following addresses:
(a) If
to the
Company:
EV
Energy
Partners, L.P.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxxxx X. Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxx@xxxxxxxxxxxxxxxx.xxx
with
a
copy to:
Xxxxxx
and Xxxxx, LLP
0000
XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxx Xxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxxx.xxx
(b) If
to ZLP
Fund, L.P.:
ZLP
Fund,
L.P.
Harborside
Financial Xxxxxx
Xxxxx
00,
Xxxxx 000
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention:
Xxxxxx X. Xxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxxx.xxx
with
a
copy to:
Pillsbury
Xxxxxxxx Xxxx Xxxxxxx LLP
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
Xxxxx X. Xxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxx.xxxxx@xxxxxxxxxxxx.xxx
20
(c) If
to
Credit Suisse Management LLC:
Credit
Suisse Management LLC
0
Xxxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxx.xxxxxx@xxxxxx-xxxxxx.xxx
(d) If
to
Structured Finance Americas, LLC:
Structured
Finance Americas, LLC
c/o
Deutsche Bank Securities Inc.
00
Xxxx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 10005
Attention:
Xxxxx Xxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxxxxxxx@xxxx.xx.xxx
with
a
copy to:
Structured
Finance Americas, LLC
c/o
Deutsche Bank Securities Inc.
00
Xxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 10005
Attention:
Xxxx Kourtesiadou
Facsimile:
(000) 000-0000
(e) If
to
Royal Bank of Canada by its agent RBC Capital Markets Corporation:
Royal
Bank of Canada by its agent RBC Capital Markets Corporation
0
Xxxxxxx
Xxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxx Xxxxxxxx
(f) If
to
Alerian Opportunity Partners VI, L.P.:
Alerian
Opportunity Partners VI, L.P.
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxx
21
(g) If
to GPS
Income Fund LP, GPS High Yield Equities Fund LP, GPS New Equity Fund LP or
Agile
Performance Fund, LLC:
GPS
Income Fund LP
GPS
High
Yield Equities Fund LP
GPS
New
Equity Fund LP
Agile
Performance Fund, LLC
c/o
GPS
Partners
000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxx Xxxxxx
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxx@xxxxxxx.xxx
(h) If
to
Xxxxxx Brothers MLP Partners, L.P.:
Xxxxxx
Brothers MLP Partners, L.P.
000
Xxxx
Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx Xxxxxx
Phone:
(000) 000-0000
(i) If
to The
Xxxxxxx MLP Opportunity Fund I, LP:
The
Xxxxxxx MLP Opportunity Fund I, LP
0000
Xxx
Xxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xxx Xxxxxx
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
or
to
such other address as the Company or such Purchaser may designate in writing.
All notices and communications shall be deemed to have been duly given: at
the
time delivered by hand, if personally delivered; upon actual receipt if sent
by
registered or certified mail, return receipt requested, or regular mail, if
mailed; when receipt acknowledged, if sent via facsimile; and upon actual
receipt when delivered to an air courier guaranteeing overnight delivery or
via
electronic mail.
Section
8.08. Removal
of Legend.
The
Company shall remove the legend described in Section 4.08 from the certificates
evidencing the Purchased Common Units at the request of a Purchaser submitting
to the Company such certificates, together with such other documentation as
may
be reasonably requested by the Company or required by its transfer agent, unless
the Company, with the advice of counsel, reasonably determines that such removal
is inappropriate; provided that no opinion of counsel shall be required in
the
event a Purchaser is effecting a sale of such Purchased Common Units pursuant
to
Rule 144 under the Securities Act or an effective registration statement. The
Company shall cooperate with such Purchaser to effect removal of such legend.
The legend described in Section 4.08 shall be removed and the Company shall
issue a certificate without such legend to the holder of Purchased
Common Units upon
which it is stamped, if, unless otherwise required by state securities Laws,
(i)
such Purchased Common Units are sold pursuant to an effective Registration
Statement, (ii) in connection with a sale, assignment or other transfer, such
holder provides the Company with an opinion of a law firm reasonably acceptable
to the Company (with any law firm set forth under Section 8.07 being deemed
acceptable), in a generally acceptable form, to the effect that such sale,
assignment or transfer of such Purchased Common Units may be made without
registration under the applicable requirements of the Securities Act, or (iii)
such holder provides the Company with reasonable assurance that such Purchased
Common Units can be sold, assigned or transferred pursuant to Rule 144 or Rule
144A under the Securities Act. If the Company shall fail for any reason or
for
no reason to issue to the holder of such Purchased Common Units within three
trading days after the occurrence of any of clause (i), clause (ii) or clause
(iii) above a certificate without such legend to the holder or if the Company
fails to deliver unlegended Purchased Common Units within three trading days
of
the Purchaser’s election to receive such unlegended Purchased Common Units
pursuant to clause (y) below, and if on or after such trading day the holder
purchases (in an open market transaction or otherwise) Common Units to deliver
in satisfaction of a sale by the holder of such Purchased Common Units that
the
holder anticipated receiving without legend from the Company (a “Buy-In”),
then
the Company shall, within three Business Days after the holder’s request and in
the holder’s discretion, either (x) pay cash to the holder in an amount equal to
the holder’s total purchase price (including brokerage commissions, if any) for
the Common Units so purchased (the “Buy-In
Price”),
at
which point the Company’s obligation to deliver such unlegended Purchased Common
Units shall terminate, or (y) promptly honor its obligation to deliver to the
holder such unlegended Purchased Common Units as provided above and pay cash
to
the holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of Common Units multiplied by (B) the closing
bid
price on the date of exercise.
22
Section
8.09. Entire
Agreement.
This
Agreement and the other Basic Documents are 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 and thereto
in respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein with respect to the rights granted by the
Company or a Purchaser set forth herein or therein. This Agreement and the
other
Basic Documents supersede all prior agreements and understandings between the
Parties with respect to such subject matter.
Section
8.10. Governing
Law.
This
Agreement will be construed in accordance with and governed by the Laws of
the
State of New York without regard to principles of conflicts of
Laws.
Section
8.11. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts and by different Parties
hereto in separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
23
Section
8.12. Expenses.
The
Company hereby covenants and agrees to reimburse Pillsbury Xxxxxxxx Xxxx Xxxxxxx
LLP for reasonable and documented costs and expenses (including legal fees)
incurred in connection with the negotiation, execution, delivery and performance
of the Basic Documents and the transactions contemplated hereby and thereby,
provided that such costs and expenses do not exceed $75,000 and that any request
for such expense reimbursement be accompanied by a detailed invoice for such
amount. If any action at law or equity is necessary to enforce or interpret
the
terms of the Basic Documents, the prevailing Party shall be entitled to
reasonable attorney’s fees, costs and necessary disbursements in addition to any
other relief to which such Party may be entitled.
Section
8.13. Recapitalization,
Exchanges, Etc. Affecting the Purchased Common Units.
The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all equity interests of the Company or any successor
or
assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) that may be issued in respect of, in exchange for or in substitution
of, the Purchased Common Units, and shall be appropriately adjusted for
combinations, unit splits, recapitalizations and the like occurring after the
date of this Agreement.
Section
8.14. Obligations
Limited to Parties to Agreement.
Each of
the parties hereto covenants, agrees and acknowledges that no Person other
than
the Purchasers (and their permitted assignees) 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 the other Basic Documents 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 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, 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 be 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 the other Basic Documents
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.
24
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as of
the
date first above written.
|
EV
ENERGY PARTNERS, L.P.
|
||
| |
|
|
| By: |
EV
ENERGY GP, L.P., its general partner
|
|
|
|
||
| By: | EV MANAGEMENT, L.L.C., its general partner | |
|
|
||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
|
Xxxxxxx
X. Xxxxxx
Senior
Vice President and Chief Financial
Officer
|
||
|
ZLP
Fund, L.P.
|
||
|
|
||
| By: | Xxxxxx Xxxxx Partners, LLC, its General Partner | |
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxxx | |
|
Name:
Xxxxx Xxxxxxxxx
Title:
Partner
|
||
|
Credit
Suisse Management LLC
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
Name:
Xxxxx Xxxxxxxx
Title:
Managing Director
|
||
|
Structured
Finance Americas, LLC
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxxxx | |
|
Name:
Xxxx Xxxxxxx
Title:
Vice President
|
||
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name:
Xxxxx Xxxxxxx
Title:
Vice President
|
||
|
PURCHASER:
Royal
Bank of Canada
|
||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxx | |
|
Name:
Xxxxx Xxxxxxxx
Title:
Director and Senior Counsel
|
||
| By: | /s/ Xxxxxx Xxxxx | |
|
Name:
Xxxxxx Xxxxx
Title:
Managing Director
|
||
|
Alerian
Opportunity Partners VI, L.P.
|
||
| By: | /s/ Xxxxxxx Xxxx | |
|
Name:
Xxxxxxx Xxxx
Title:
Chief Financial
Officer
|
||
|
GPS
Income Fund LP
|
||
|
By:
GPS Partners LLC,
Its
general partner
|
||
|
|
||
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name:
Xxxxx Xxxxxxx
Title:
Managing Partner
|
||
|
GPS
High Yield Equities Fund LP
|
||
|
By:
GPS Partners LLC,
Its
general partner
|
||
|
|
||
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name:
Xxxxx Xxxxxxx
Title:
Managing
Partner
|
||
|
GPS
New Equity Fund LP
|
||
|
By:
GPS Partners LLC,
Its
general partner
|
||
|
|
||
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name:
Xxxxx Xxxxxxx
Title:
Managing
Partner
|
||
|
Agile
Performance Fund, LLC
|
||
|
By:
GPS Partners LLC,
Its
investment sub-advisor
|
||
|
|
||
| By: | /s/ Xxxxx Xxxxxxx | |
|
Name:
Xxxxx Xxxxxxx
Title:
Managing
Partner
|
||
|
Xxxxxx
Brothers MLP Partners, L.P.
|
||
| By: | /s/ Xxxx Xxxxxx | |
|
Name:
Xxxx Xxxxxx
Title:
Senior Vice
President
|
||
|
The
Xxxxxxx MLP Opportunity Fund I,
LP
|
||
|
|
||
| By: | /s/ Xxxxx X. Xxxxx | |
|
Name:
Xxxxx X. Xxxxx
Title:
Managing
Partner
|
||
