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REGISTRATION AGREEMENT
dated as of November 7, 1996
between
NATIONAL PROPANE PARTNERS, L.P.
and
XXXXXXX XXXXX & CO.
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REGISTRATION AGREEMENT
AGREEMENT dated as of November 7, 1996 between Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (collectively, the
"BUYER"), and National Propane Partners, L.P., a Delaware limited partnership
(the "COMPANY").
WHEREAS, pursuant to a Purchase Agreement dated as of the date
hereof between the Buyer and the Company (the "PURCHASE AGREEMENT"), the Buyer
has agreed to purchase from the Company an aggregate of 400,000 Common Units
representing limited partnership interests in the Company (the "Common Units";
such 400,000 Common Units being referred to herein as the "Units); and
WHEREAS, it is a condition of such purchase of the Units by the
Buyer that the Company enter into this Registration Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1.1 DEFINITIONS. The following terms, as used
herein, have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
"BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which the New York Stock Exchange is closed.
"CLOSING" means the closing of the sale and purchase
of the Units pursuant to the Purchase Agreement.
"COMMISSION" means the Securities and Exchange Commission or any
federal agency at the time administering the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"HOLDER" means the Buyer and any of its Affiliates
that is the holder of any Registrable Security.
"MAJORITY HOLDERS" means Holders of at least a majority of the
Registrable Securities from time to time.
"MAJORITY REGISTERING HOLDERS" means Holders of at least a
majority of the Registrable Securities included in a registration statement
under this Agreement.
"NASDAQ" means the National Association of Securities
Dealers Automated Quotation System.
"PERSON" shall mean a corporation, an association, a partnership,
a business, an individual, a governmental or political subdivision thereof or a
governmental agency.
"REGISTERING HOLDERS" means Holders whose Registrable Securities
are included in a registration statement under this Agreement.
"REGISTRABLE SECURITIES" means the Units and any securities (i)
issued on registration of transfer of the Units or (ii) issued or issuable with
respect to any such Units by way of dividend or unit split or in connection with
a combination, recapitalization, merger, consolidation or other reorganization
or otherwise. Registrable Securities shall cease to be Registrable Securities
when (a) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of pursuant to such registration statement, (b) they shall
have been distributed to the public pursuant to Rule 144 or, in the opinion of
counsel to the Company, may be sold pursuant to Rule 144(k), (c) they shall have
been otherwise transferred and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force, or (d)
they shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, the reasonable fees and disbursements of one counsel to represent
all Holders but who shall be selected by the Majority Registering Holders
(provided, that the amount of all such fees and disbursements to be paid by the
Company pursuant to this Agreement, together with the amount payable by the
Company in respect of the out-of-pocket fees and expenses incurred by the Buyer
in connection with the Purchase Agreement dated the date hereof among the
Company, certain of its affiliates and the Buyer, shall not exceed $125,000),
premiums and other costs of policies of insurance obtained by the Company
against liabilities arising out of the public offering of the Registrable
Securities being registered (if the Company elects to obtain such insurance) and
any reasonable fees and disbursements of underwriters customarily paid by
issuers or holders of securities (including fees paid to a qualified independent
underwriter), but excluding underwriting discounts and commissions and transfer
taxes, if any.
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"RULE 144" has the meaning set forth in Section 3
hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and any successor statute thereto.
2. Registration under Securities Act.
2.1 Shelf Registration. (a) The Company shall use its
reasonable best efforts to have declared effective a shelf registration
statement pursuant to Rule 415 under the Securities Act in order to effect the
registration with the Commission under the Securities Act of all Registrable
Securities as soon as practicable after the filing thereof. If the Majority
Holders so elect, the offering of the Registrable Securities pursuant to this
Section 2.1 (a) shall be in the form of an underwritten offering. Neither the
Company nor any other Person (other than the Holders) shall be allowed to
include any securities in such registration without the prior written consent of
the Buyer (which consent will not be unreasonably withheld). The Company shall
not be obligated to effect more than one registration pursuant to this Section
2.1.
(b) Registration Statement Form. Registration
under this Section 2.1 shall be on such appropriate registration form of the
Commission (i) as shall be selected by the Company and (ii) as shall permit, to
the extent practicable, the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition intended on the
part of the Holders.
(c) Expenses. The Company will pay when due all
Registration Expenses in connection with the registration made pursuant to this
Section 2.1.
(d) Underwriters. The managing underwriter of
any underwritten offering effected pursuant to this Section 2.1 shall be Xxxxxxx
Xxxxx.
2.2. Registration on Request. (a) Request. At any time after the
conclusion of six months following the date on which the Company is no longer
required to keep the shelf registration statement contemplated by Section 2.1
effective in accordance with the terms hereof, the Majority Holders shall have
the right to request, in a writing to the Company, that the Company effect a
registration with the Commission under the Securities Act of no less than fifty
(50%) percent of such requesting Holders' Registrable Securities then owned by
such Holders; provided, however, that the Company shall not be obligated to
effect more than one registration pursuant to this Section 2.2. The Company will
promptly give written notice of any such requested registration to all Holders
and thereupon, the Company will use its best efforts to effect the registration
under the Securities Act of:
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(i) subject to the provisions of Section 2.2(b), the Registrable
Securities which the Company has been so requested to register by the
Holders requesting registration pursuant to the first sentence of
Section 2.2(a) (the "Requesting Holders"); and
(ii) Subject to Section 2.2(b), all other Registrable Securities
which the Company has been requested to register by the Holders by
written request given to the Company within 30 days after the giving of
such written notice by the Company, all to the extent requisite to
permit the disposition of the Registrable Securities so to be
registered. If the Requesting Holders so elect, the offering of the
Registrable Securities pursuant to this Section 2.2(a) shall be in the
form of an underwritten offering. If the Requesting Holders request that
the registration be in the form of a non-underwritten offering, then
neither the Company nor any other Person (other than the Holders) shall
be allowed to include any securities in such registration without the
prior written consent of the Buyer.
(b) In the case of an underwritten offering, the Company may give
notice to Persons having registration rights other than the Holders of its
intention to file a registration statement. If the managing underwriter of any
underwritten offering shall advise the Company and the Holders requesting
registration under Sections 2.2(a)(i) and (ii) in writing that, in it's opinion,
the number of securities proposed to be included in such registration exceeds
the number which can be sold in such offering within a price range acceptable to
a majority of the Requesting Holders (by number of Units sought to be
registered), the Company will include in such registration the number of
Registrable Securities which in the opinion of such managing underwriter can be
sold, and such securities shall be allocated first to Registrable Securities
requested to be included in such registration pursuant to Sections 2.2(a)(i) and
(ii) of this Agreement pro rata among the Holders requesting registration under
Sections 2.2(a)(i) and (ii) on the basis of the relative number of Registrable
Securities requested by each such Holder to be included in such registration,
second to any securities required to be registered by the Company pursuant to
agreements providing registration rights to other Persons, in such order and
with such priorities as may be required by such agreements and third to any
securities proposed to be included by the Company.
In the event the Registrable Securities proposed to be included
by the Holders requesting registration under Sections 2.2(a)(i) and (ii) in such
underwritten offering are excluded from the underwritten offering pursuant to
the provisions of this Section 2.2(b), such Registrable Securities shall upon
the Holders' request nevertheless be registered for sale on a non-underwritten
basis by Holders requesting registration under Sections 2.2(a)(i) and (ii), and
the Company shall prepare and
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file an appropriate alternate prospectus or supplement to the prospectus to
reflect the use of the prospectus for delivery to purchasers of Registrable
Securities from such Holders and not through the underwriters.
(c) Registration Statement Form. Registrations under this Section
2.2 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and (ii) as shall, to the extent practicable,
permit the disposition of such Registrable Securities in accordance with the
intended method or methods of disposition intended on the part of such Holders.
(d) Expenses. The Company will pay when due all Registration
Expenses in connection with the registration request made pursuant to this
Section 2.2.
(e) Underwriters. The managing underwriter of any underwritten
offering effected pursuant to this Section 2.2 shall be Xxxxxxx Xxxxx.
2.3. Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register any of its securities under the Securities Act
(other than by a registration on Form X-0, Xxxx X-0 or any successor or similar
form and other than pursuant to a registration statement pursuant to Section 2.1
or 2.2 hereof), whether or not for sale for its own account or as a result of a
demand from a security holder, and if the registration form proposed to be used
may be used for the registration of the Registrable Securities, it will each
such time give prompt written notice to all Holders of its intention to do so
and of such Holders' rights under this Section 2.3. Upon the written request of
any Holder made within 30 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such Holder), the Company will use its best efforts to effect the registration
with the Commission under the Securities Act of all Registrable Securities which
the Company has been so requested to register, to the extent required to permit
the disposition of the Registrable Securities so to be registered, provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company shall give written notice of such determination to each
Holder and, thereupon, (i) in the case of a determination not to register, shall
be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith), without prejudice, however, to
the rights of any Holder entitled to do so, to request that such
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registration be effected as a registration under Section 2.2, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Section
2.3 shall relieve the Company of its obligation to effect any registration under
Section 2.1 or 2.2. The Company will pay when due all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.3.
(b) Apportionment in Incidental Registrations. If (i) a
registration pursuant to this Section 2.3 involves an underwritten offering of
the securities being registered, whether or not for sale for the account of the
Company, to be distributed (on a firm commitment basis) by or through one or
more underwriters, and (ii) the managing underwriter of such underwritten
offering shall inform the Company in writing of its good faith belief that the
number of securities requested to be included in such underwritten offering
exceeds the number which can be sold in (or during the time of) such offering or
that the inclusion of such number of securities would adversely affect the
marketing of the securities to be sold by the Company or the securityholder or
securityholders who have requested such registration pursuant to demand
registration rights, then the Company shall include, to the extent of the number
and type which the Company is so advised can be sold in (or during the time of)
such offering, first, in the case of a registration proposed by the Company for
its own account, all securities proposed by the Company to be sold for its own
account, or in the case of any securities initially proposed to be registered by
the Company for the accounts of other Persons pursuant to the exercise of demand
registration rights granted pursuant to an applicable registration rights
agreement between the Company and such other Person, the securities requested to
be registered by such Person but only in such amount and to the extent required
by such agreement, and second, such Registrable Securities requested to be
included in such registration pursuant to this Agreement and any securities
required to be included in such registration by other Persons who have
incidental registration rights, on a pro rata basis (as determined by the
Company).
2.4. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2.1, 2.2 and 2.3,
the Company will, as promptly as possible:
(i) select counsel and independent accountants for the
Company in connection with such registration;
(ii) subject to Section 2.7, prepare and (as promptly thereafter
as practicable and in any event (A) prior to December 15, 1996 in the
case of registration pursuant to Section 2.1 hereof and (B) within 60
days after the end of
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the 30-day period within which requests for registration may be given to
the Company) file with the Commission the requisite registration
statement to effect such registration and thereafter use its best
efforts to cause such registration statement to become effective and to
remain effective for the period specified in Section 2.4 (iii),
provided, however, that the Company may discontinue any registration of
its securities which are not Registrable Securities (and, under the
circumstances specified in Section 2.3(a), its securities which are
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(iii) subject to Section 2.7, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of
not more than six months (or such shorter period which will terminate
when all Registrable Securities covered by such registration statement
have been sold (but not before the expiration of the period referred to
in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable)) after the date the original filing was declared effective
and to comply with the provisions of the Securities Act during such
period with respect to the disposition of all securities covered by such
registration statement until such time during such period as all of such
securities have been disposed of in accordance with the intended methods
of disposition by the Registering Holders thereof set forth in such
registration statement; provided, however, that a reasonable time before
filing any registration statement or prospectus or supplement or
amendment thereto, the Company shall furnish drafts of such documents to
counsel for the Registering Holders, which documents shall be subject to
reasonable review by such counsel; and further provided, that there
shall not be counted as part of the six months any period during which
the prospectus may not be used pursuant to subsection (viii) of this
Section 2.4;
(iv) furnish to each Registering Holder and to any underwriter
such number of conformed copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 or Rule 430A under the
Securities Act, in conformity with the requirements of the Securities
Act, documents incorporated by reference in such registration statement,
amendment, supplement or prospectus and such other documents (in each
case including all exhibits), as a Registering Holder or underwriter may
reasonably request;
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(v) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as
the Majority Registering Holders or the underwriter shall reasonably
request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable
the Registering Holders to consummate the disposition in such
jurisdictions of the securities owned by such Registering Holders,
except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
subdivision 2.4(v) be obligated to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(vi) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary
to enable the Registering Holders to consummate the disposition of such
Registrable Securities;
(vii) furnish to each Registering Holder and the underwriters a
signed counterpart of: (x) an opinion of counsel for the Company, dated
the effective date of such registration statement (or, if such
registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement) covering such matters as
are customarily covered by opinions of issuer's counsel delivered to
underwriters in underwritten public offerings of securities; and (y) a
"comfort" letter, dated the effective date of such registration
statement (and, if such registration includes an underwritten public
offering, dated the date of the closing under the underwriting
agreement), signed by the independent public accountants who have
certified the Company's financial statements included in such
registration statement, covering matters which are customarily covered
in accountants letters delivered to the underwriters in underwritten
public offerings of securities, and such other financial matters as the
underwriters may reasonably request or, in the case of a
non-underwritten offering, covering matters which are customarily
covered in accountants letters delivered to the selling security-
holders in non-underwritten secondary public offerings of securities;
(viii) notify each Registering Holder at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event
as a result of which, the prospectus
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included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and, subject to Section 2.7, at the request of any such
Registering Holder promptly prepare and furnish to such Registering
Holder a reasonable number of copies of any supplement to or amendment
of such prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such securities, such prospectus shall 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 statements therein
not misleading in the light of the circumstances under which they were
made;
(ix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first full calendar month after
the effective date of such registration statement (as the term
"effective date" is defined in Rule 158 under the Securities Act), which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder, and will furnish to each
Registering Holder, underwriter and Registering Holders, or
underwriter's counsel, at least two business days prior to the filing
thereof, a draft copy of any amendment or supplement to such
registration statement or prospectus and shall not file any such
amendment or supplement which does not comply in all material respects
with the requirements of the Securities Act or of the rules or
regulations thereunder;
(x) provide and cause to be maintained a transfer agent for all
Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration
statement;
(xi) use its best efforts (A) to list all Registrable Securities
covered by such registration statement on any securities exchange on
which any of the same class of securities as the Registrable Securities
is then listed or (B) in the event such securities are not so listed, to
have such Registrable Securities qualified for inclusion on the NASDAQ
National Market System, if the Registrable Securities are then so
qualified or (C) in the event such securities are not so listed or
qualified, to have such Registrable Securities qualified for inclusion
on the NASDAQ System; and
(xii) furnish unlegended certificates representing ownership of
the Registrable Securities then being sold in
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such denominations as shall be requested by Registering Holders or
underwriters.
The Company may require each Registering Holder to promptly
furnish the Company, as a condition precedent to including such Registering
Holder's Registrable Securities in any registration, such information regarding
such Registering Holder and the distribution of such securities as the Company
may from time to time reasonably request in writing.
Each Holder agrees, by acquisition of such Registrable
Securities, that upon receipt of any notice from the Company of the happening of
any event of the kind described in subdivision (viii) of this Section 2.4, such
Holder will forthwith discontinue such Holder's disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until such Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (viii) of this Section 2.4 and,
if so directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession, of the prospectus and any amendments or supplements thereto relating
to such Registrable Securities current at the time of receipt of such notice.
2.5. Underwritten Offerings.
(a) Requested Underwritten Offering. If requested by the
underwriters for any offering by Holders pursuant to a registration under
Section 2.1 or 2.2, the Company will enter into an underwriting agreement with
such underwriters for such offering, such agreement to be satisfactory in
substance and form to the Company, the Registering Holders and the underwriters
and to contain such representations and warranties by the Company and such other
terms as are then generally prevailing in agreements of such type, including,
without limitation, indemnities to the effect and to the extent provided in
Section 2.8 hereof. The Registering Holders will cooperate with the Company in
the negotiation of the underwriting agreement, provided that nothing herein
contained shall diminish the foregoing obligations of the Company. The
Registering Holders shall be parties to such underwriting agreement. No
Registering Holder shall be required to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties or agreements to or for the benefit of the Company
and such underwriters regarding such Registering Holder, such Registering
Holder's Registrable Securities, any other information supplied in writing by
such Registering Holder to the Company specifically for use in the Registration
Statement and any other representation required by law and will agree therein to
an indemnity to the underwriters that is customary for transactions of that
type.
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(b) Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.3 and its securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any Holder
as provided in Section 2.3 and subject to the provisions of Section 2.3(b), use
its best efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such Holder among the securities to be
distributed by such underwriters. The Registering Holders shall be parties to
the underwriting agreement between the Company and such underwriters. No
Registering Holder shall be required to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties, or agreements to or for the benefit of the Company
and such underwriter regarding such Registering Holder, such Registering
Holder's Registrable Securities and any other information supplied in writing by
such Registering Holder to the Company specifically for use in the registration
statement and any other representation required by law and will agree therein to
an indemnity to the underwriters that is customary for transactions of that
type.
(c) Participation in Underwritten Registration. No Person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the person entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(d) Holdback Agreement. In any underwritten public offering in
which such Holder is participating as a seller, each Holder agrees not to effect
any sale or distribution of any Registrable Securities or any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a sale pursuant to Rule 144, during the 14 days prior to and the
180-day period beginning on the effective date of a registration statement, if
and to the extent requested by the managing underwriter.
2.6. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the Registering Holders,
the underwriters and their respective counsel and accountants, the timely
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers and the independent public accountants
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who have certified its financial statements as shall be necessary, in the
opinion of each of such Registering Holders, and such underwriters, and their
respective counsel, to conduct appropriate due diligence within the meaning of
the Securities Act.
2.7 Postponement of Registration. If at any time prior to or
during the effectiveness of a registration statement contemplated by Section
2.1, 2.2 or 2.3 hereof, the Company is engaged in or in good faith plans to
engage in any financing, acquisition, reorganization or other material
transactions involving the Company which the Board of Directors of the general
partner of the Company determines in its good faith reasonable judgment would
require suspension of sales of Registrable Securities pursuant to such
registration statement or would be adversely affected by the filing of any
registration statement otherwise required to be prepared and filed pursuant to
Section 2.1, 2.2 or 2.3, the Company shall be entitled to suspend the
effectiveness of the registration statement or postpone the filing of a
registration statement pursuant to Section 2.1, 2.2 or 2.3 for a reasonable
period of time (but not exceeding 120 days from the date of the determination or
request), and shall promptly give the Holders written notice of such
determination, containing a general statement of the reasons therefor and an
approximation of the anticipated delay (which shall be kept confidential by such
Holders). If the Company shall so postpone the filing of the registration
statement pursuant to Section 2.2, a majority of the Requesting Holders shall
have the right to withdraw the request for registration by giving written notice
to the Company within 30 days after receipt of the notice of postponement and,
in the event of such withdrawal, such withdrawn request shall not be counted for
purposes of the requests for registration to which Holders are entitled pursuant
to Section 2.2 hereof. Such right to suspend the sale of Registrable Securities
pursuant to a registration statement or to delay pursuant to this Section 2.7 a
registration pursuant to Section 2.1, 2.2 or 2.3 may not be exercised more than
once in any twelve-month period.
2.8. Indemnification. (a) Indemnification by the Company. In the
event of any registration of any Registrable Securities under the Securities
Act, the Company will, and hereby does, indemnify and hold harmless, each of the
Registering Holders, directors, officers, employees, attorneys, agents and
affiliates of such Registering Holders and such other Person, if any, who
controls such Registering Holder within the meaning of the Securities Act,
against any settlement, losses, claims, damages or liabilities, joint or
several, to which such Registering Holder or any such director, officer,
employee, attorney, agent, affiliate, or controlling Person may become subject
under the Securities Act or otherwise , insofar as such settlement, losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue
statement or
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alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein or used in association therewith, or any amendment
or supplement thereto or any document incorporated by reference therein, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse each such Registering Holder, and each such director,
officer, employee, agent, attorney, affiliate, and controlling Person for any
legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such settlement, loss, claim, liability, action
or proceeding; provided, that the Company shall not be liable in any such case
to any particular Registering Holder or its director, officer, employee, agent,
attorney, affiliate or controlling Person to the extent that any such
settlement, loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense (i) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Registering Holder
specifically stating that it is for use in the preparation thereof or (ii)
results from any Requesting Holder's failure to send or to give a copy of the
final prospectus to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such final
prospectus was required by law to be delivered and such statement or omission
was corrected in such final prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Registering Holder or any such director, officer, agent, affiliate or
controlling Person of such Registering Holder and shall survive the transfer of
such Registrable Securities by such Registering Holder. If the offering pursuant
to any registration statement provided for under this Agreement is made through
an underwriter, the Company agrees to indemnify the underwriter, its officers
and directors and each Person who controls the underwriter within the meaning of
the Securities Act to the same extent as hereinbefore provided; provided, that
the Company shall not be required to indemnify any such underwriter, or any
officer or director of such underwriter, or any Person who controls such
underwriter, to the extent the settlement, loss, claim, damage or liability
results from (i) such underwriter's failure to send or to give a copy of the
final prospectus to the Person asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus or (ii) any
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information furnished in writing to the Company by any underwriter specifically
stating that it is for use therein.
(b) Indemnification by the Registering Holders. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Sections 2.1, 2.2 or 2.3 that the
Company shall have received an undertaking satisfactory to it from the
Registering Holders to indemnify and hold harmless (in the same manner and to
the same extent as set forth in sub-division (a) of this Section 2.8) the
Company, its directors, officers, employees, agents, attorney and affiliates,
each Person, if any, who participates as an underwriter in the offering or sale
of such securities and each other Person, if any, who controls the Company or
any such underwriter within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Registering Holder specifically stating that it is for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer, employee, agent, attorney,
affiliate or controlling person and shall survive the transfer of such
Registrable Securities by such Registering Holder. Notwithstanding the
provisions of this paragraph (b), no Registering Holder shall be required to
indemnify any Person pursuant to this Section 2.8 for any amount in excess of
the amount by which the aggregate net proceeds received by such Registering
Holder in such offering exceeds the amount of any damages that such Registering
Holder has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of a claim, demand or the commencement of any action
or proceeding involving a claim referred to in the preceding subdivisions of
this Section 2.8, such indemnified party will, if a claim in respect thereof is
to be made by an indemnified party against an indemnifying party, give prompt
written notice to the latter of such claim, demand or the commencement of such
action, provided, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 2.8, except to the extent that
the indemnifying party is actually materially prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof
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(unless in the opinion of counsel to such indemnified party a conflict of
interest between such indemnified party and indemnifying party may exist in
respect of such claim), jointly with any other indemnifying party similarly
notified to the extent that it may wish, 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 the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party is not entitled to (because of the parenthetical in the
previous sentence), or elects not to, assume the defense of a claim, it will not
be obligated to pay the reasonable fees and expenses of more than one counsel
with respect to such claim, unless in the opinion of counsel to an indemnified
party a conflict of interest between such indemnified party and other
indemnified parties may exist in respect of such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and expenses of
one additional counsel for all indemnified parties as to which such conflict
exists. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement with
respect to any pending or threatened claim, demand, action or proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. If the indemnifying party has agreed to indemnify
the indemnified party for any action or proceeding, then whether or not such
defense is assumed by the indemnifying party, the indemnifying party shall not
be liable for any settlement made without its consent, which shall not be
unreasonably withheld.
(d) Other indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 2.8 (with appropriate
modifications) shall be given by the Company and each Registering Holder covered
by a registration statement with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(e) Indemnification and Reimbursement Payments. The
indemnification and reimbursement required by this Section 2.8 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred; provided, however, that if an indemnified party is reimbursed
hereunder for any expenses, the amount so paid shall be refunded to the
indemnifying party if it is finally judicially determined that the indemnifying
party was not obligated to indemnify the
15
indemnified party regarding the claim, demand, action or proceeding with respect
to which such expense was incurred.
(f) Contribution. If the indemnification provided for in this
Agreement shall for any reason be unavailable or insufficient to an indemnified
party under Section 2.8(a), 2.8(b) or 2.8(d) hereof in respect to any
settlement, loss, claim, damage or liability, or any action in respect thereof,
or referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such settlement, loss, claim, damage or
liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect (i) as between the Company and the Registering Holders on
the one hand and the Underwriters on the other hand, the relative benefits
received by the Company and the Registering Holders on one hand and the
Underwriters on the other hand, from the offering of the securities, and the
relative fault of the Company and the Registering Holders on the one hand and
the Underwriters on the other, with respect to the statements or omissions which
resulted in such settlement, loss, claim, damage or liability, or action in
respect thereof, as well as any relevant equitable considerations and (ii) as
between the Company on the one hand and the Registering Holders on the other
hand, the relative fault of the Company on the one hand and the Registering
Holders on the other with respect to such statements or omissions, as well as
any relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Registering Holders, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Registering Holders agree that it would not be just and equitable if
contribution pursuant to this Section 2.8 were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the settlement, loss, claim, damage or
liability, or action in respect thereof, referred to in this Section 2.8 shall
be deemed to include, for purposes of this Section 2.8, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. 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.
Notwithstanding the provisions of this paragraph (f), no Registering Holder
shall be required to contribute an amount in excess of the amount by which the
aggregate net proceeds received by such Registering Holder exceeds the amount of
any damages that such Registering Holder has otherwise been required or agreed
to pay by reason of any such untrue or alleged untrue statement or omission or
alleged omission.
16
2.9. Listing of Common Units. The Company covenants and agrees
for the benefit of the Holders, that it will, at its expense, as soon as is
reasonably practicable, cause the Registrable Securities registered from time to
time upon exercise of the rights granted hereby to be approved for listing upon
the effectiveness of a registration under this Agreement, and use its best
efforts to maintain such listing, on the New York Stock Exchange or such other
national securities exchange on which the Company's traded securities are listed
or authorized for trading, or NASDAQ if at such time the Company's traded
securities are authorized for trading on NASDAQ, subject to notice of issuance,
if any, and the requirements of such exchange or NASDAQ, and will provide prompt
notice to such exchange or NASDAQ of the issuance thereof from time to time.
3. Rule 144. So long as the Company's Common Units shall be
registered pursuant to the requirements of Section 12 of the Exchange Act, the
Company will file the reports required to be filed by it under the Exchange Act
and will take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time or (b) any similar rule or regulation
hereafter adopted by the Commission ("Rule 144"). Upon the request of any Holder
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
4. Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented
unless in a writing signed by the Company and the Majority Holders. Except as
otherwise provided herein, no waivers or consents to departures from the
provisions hereof may be given unless the Company has obtained the written
consent of the Majority Holders. Each Holder shall be bound by any consent
obtained in the manner authorized by this Section 4, whether or not such
Registrable Securities shall have been marked to indicate such consent.
5. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election by written notice to the
Company effective upon receipt by the Company, be treated as a Holder for
purposes of any request or other action by any Holder pursuant to this Agreement
or any determination of any number or percentage of Registrable Securities held
by any Holder contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities. Prior to receipt by the Company of written notice contemplated
hereby, any action taken by any nominee shall be binding upon any such
beneficial owner.
17
6. Notices. All communications provided for hereunder shall be
sent by first-class mail, overnight courier or telecopy and (a) if addressed to
the Buyer, addressed to the Buyer in the manner set forth in the Purchase
Agreement, or at such other address or telecopy number as the Buyer shall have
furnished to the Company in writing, or (b) if addressed to any other Holder,
the address or telecopy number that such Holder shall have furnished to the
Company in writing, or, until any such other Holder so furnishes to the Company
an address or telecopy number, then to and at the address or telecopy number of
the last Holder who has furnished an address or telecopy number to the Company,
or (c) if addressed to the Company, to National Propane Partners, L.P., Suite
1700, IES Tower, 000 0xx Xxxxxx, X.X., X.X. Xxx 0000, Xxxxx Xxxxxx, Xxxx
00000-0000, Attention: Secretary or if by telecopy to 000-000-0000 (with a copy
to Triarc Companies, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and after
November 30, 1996, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10017), Attention:
Secretary, or, if by telecopy to 000-000-0000 (and after November 30, 1996,
212-451-3216) or at such other address or telecopy number, or to the attention
of such other officer, as the Company shall have furnished to each holder of
Registrable Securities at the time outstanding.
7. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted assigns. The Buyer may not assign any of its rights hereunder to any
person or persons other than Affiliates of the Buyer. In addition, and whether
or not any express assignment shall have been made, the provisions of this
Agreement which are for the benefit of the parties hereto other than the Company
shall also be for the benefit of and enforceable by any subsequent Holder,
subject to the provisions respecting the minimum numbers or percentages of
Registrable Securities required in order to be entitled to certain rights, or
take certain actions, contained herein.
8. Descriptive Heading. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
9. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York.
10. Jurisdiction. Each of the parties hereto hereby irrevocably
and unconditionally:
(i) Submits itself in any legal action or proceeding
relating to this Agreement, or for recognition and enforcement of any
judgment in respect hereof, to the exclusive jurisdiction of any state
or federal court in the Borough of Manhattan, New York, New York, and
appellate courts therefrom, and consents and agrees to such action or
18
proceeding being brought in such court; provided, however, that if for
any reason such courts shall not have or decline to exercise
jurisdiction in any legal action or proceeding, such legal action or
proceeding may be brought in any other court or jurisdiction in
accordance with applicable laws; and
(ii) Waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any state or
federal court in the Borough of Manhattan, New York, New York or that
any such action or proceeding brought in any such court was brought in
an inconvenient court and agrees not to plead or claim the same.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same agreement and shall
become effective only when one or more of the counterparts shall have been
signed by each party and delivered to the other party, it being understood that
all the parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
NATIONAL PROPANE PARTNERS, L.P.
By National Propane Corporation,
its managing general partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
________________________________
Name:
Title: Senior Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:
________________________________
Name:
Title:
20
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
NATIONAL PROPANE PARTNERS, L.P.
By National Propane Corporation,
its managing general partner
By:
________________________________
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxx
________________________________
Name:
Title:
20
