EXHIBIT 4.3
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
by and between
EOTT Energy LLC
a Delaware limited liability company
(the "COMPANY")
and
Those persons listed on Exhibit A
("UNITHOLDERS")
Dated as of March 1, 2003
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TABLE OF CONTENTS
ARTICLE I. DEFINED TERMS..................................................................... 1
Section 1.1 Defined Terms............................................ 1
Section 1.2 Construction............................................. 2
Section 1.3 References............................................... 2
ARTICLE II. DEMAND REGISTRATION.............................................................. 2
Section 2.1 Request.................................................. 2
Section 2.2 Registration Statement Form.............................. 3
Section 2.3 Expenses................................................. 3
Section 2.4 Effective Registration Statement......................... 3
Section 2.5 Selection of Underwriters................................ 4
Section 2.6 Priority in Requested Registrations...................... 4
Section 2.7 Shelf-Registration....................................... 4
ARTICLE III. "PIGGY BACK" REGISTRATION....................................................... 5
Section 3.1 Right to Include Registrable Securities.................. 5
Section 3.2 Priority in Piggy-Back Registrations..................... 5
ARTICLE IV. REGISTRATION PROCEDURES.......................................................... 6
Section 4.1 Preparation of Filings................................... 6
(a) Registration Statement................................... 6
(b) Amendments............................................... 6
(c) Copies of Documents...................................... 7
(d) Blue-Sky................................................. 7
(e) Other Approvals.......................................... 7
(f) Notice of Events......................................... 7
(g) Earnings Statement....................................... 8
(h) Listing.................................................. 8
(i) Transfer Agent........................................... 8
(j) Access................................................... 8
(k) Data from Holders of Registrable Securities.............. 9
(l) Discontinuance of Use of Prospectus...................... 9
(m) Underwritten Offerings................................... 9
Section 4.2 Holdback Agreements...................................... 10
Section 4.3 Preparation; Reasonable Investigation.................... 10
ARTICLE V. INDEMNIFICATION................................................................... 10
Section 5.1 Indemnification by the Company........................... 10
Section 5.2 Indemnification by the Sellers........................... 11
Section 5.3 Notices of Claims, etc................................... 11
Section 5.4 Other Indemnification.................................... 12
Section 5.5 Indemnification Payments................................. 12
ARTICLE VI. RULE 144......................................................................... 13
Section 6.1 Rule 144................................................. 13
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ARTICLE VII. MISCELLANEOUS................................................................... 13
Section 7.1 Remedies................................................. 13
Section 7.2 No Inconsistent Agreements............................... 13
Section 7.3 Adjustments Affecting Registrable Securities............. 13
Section 7.4 Assignment............................................... 14
Section 7.5 Descriptive Headings..................................... 14
Section 7.6 Governing Law............................................ 14
Section 7.7 Counterparts............................................. 14
Section 7.8 Entire Agreement......................................... 14
Section 7.9 Severability............................................. 14
Section 7.10 Amendments and Waivers................................... 14
Section 7.11 Nominees for Beneficial Owners........................... 14
Section 7.12 Notices.................................................. 15
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("AGREEMENT") is entered into as of
this 1st day of March, 2003, by and between EOTT Energy LLC, a Delaware limited
liability company (the "COMPANY"), those persons listed on Exhibit A
(individually, a "UNITHOLDER" and collectively, the "UNITHOLDERS") and evidences
that for good and valuable consideration, the receipt and sufficiency of which
is acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1 DEFINED TERMS. As used herein, unless the context
otherwise requires, the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular section of
the Securities Exchange Act of 1934 shall include a reference to the comparable
section, if any, of any such similar federal statute.
Initiating Holders: Any holder or holders of at least 10% of the
Registrable Securities by number of Units at the time outstanding and initiating
a request pursuant to Section 2.1 for the registration of all or part of such
holder's or holders' Registrable Securities.
Person: A corporation, an association, a partnership, an organization,
business, an individual, a governmental or political subdivision thereof or a
governmental agency.
Plan: Means the Third Amended Joint Chapter 11 Plan of EOTT Energy
Partners, L.P. dated December 6, 2002.
Registrable Securities: (a) any Units issued to the Unitholders
pursuant to the Plan, and (b) any securities issued or issuable with respect to
any Units referred to in the foregoing subdivision by way of stock dividend or
stock split or in connection with a combination of units, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, once issued such 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 in accordance with such registration
statement, (b) they shall have been distributed to the public pursuant to Rule
144 (or any successor provision)
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under the Securities Act, (c) they shall have been otherwise transferred, 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, (d) they shall have ceased to be outstanding,
(e) after the fifth anniversary of the date of this Agreement, the holder of
such Registrable Securities owns less than 1% of the total outstanding Units, or
(f) after the fifth anniversary of the date of this Agreement, the Registrable
Securities represent, in the aggregate, less than 10% of the total outstanding
Units.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with Article II or III, including, without
limitation, all registration, filing, listing, and NASD fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating, printing and engraving 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
fees and disbursements of a single counsel and accountants retained by the
holder or holders of more than 51% of the Registrable Securities being
registered, premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered and any fees and disbursements of underwriters customarily paid
by issuers or sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any.
Securities Act: The Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as of
the same shall be in effect at the time. References to a particular section of
the Securities Act of 1933 shall include a reference to the comparable section,
if any, of any such similar Federal statute.
Units: The units of membership interests in the Company.
SECTION 1.2 CONSTRUCTION. Whenever the context requires, the
gender of all words used herein shall include the masculine, feminine and
neuter, and the number of all words shall include the singular and plural.
SECTION 1.3 REFERENCES. Unless otherwise specified, references in
this Agreement to "Sections", "Subsections" or "Articles" refer to the sections,
subsections or articles in this Agreement.
ARTICLE II.
DEMAND REGISTRATION
SECTION 2.1 REQUEST. Following the completion of the audit of the
Company's financial statements for the year ended December 31, 2003, upon the
written request of one or more Initiating Holders, requesting that the Company
effect the registration under the Securities Act of all or part of such
Initiating Holders' Registrable Securities and specifying the intended method of
disposition thereof, the Company will promptly give
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written notice of such requested registration to all registered holders of
Registrable Securities, and thereupon the Company will use its best efforts to
effect the registration under the Securities Act of the following:
(a) the Registrable Securities which the Company has been
so requested to be registered by such Initiating Holders for
disposition in accordance with the intended method of disposition
stated in such request;
(b) all other Registrable Securities the holders of which
shall have made a written request to the Company for registration
thereof within 30 days after the giving of such written notice by the
Company (which request shall specify the intended method of disposition
of such Registrable Securities); and
(c) all Units which the Company may elect to register in
connection with the offering of Registrable Securities pursuant to this
Article II;
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional Units, if any, so to be registered; provided, that, the provisions of
this Article II shall not require the Company to effect more than three
registrations of Registrable Securities.
SECTION 2.2 REGISTRATION STATEMENT FORM. Registrations under this
Article II shall be on an appropriate registration form of the Commission (i) as
shall be selected by the Company and shall be reasonably acceptable to the
holders of more than fifty percent (by number of Units) of the Registrable
Securities so to be registered and (ii) as shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods of
disposition specified in their request for such registration. The Company agrees
to include in any such registration statement all information which holders of
Registrable Securities being registered shall reasonably request.
SECTION 2.3 EXPENSES. The Company will pay all Registration
Expenses in connection with any registrations requested pursuant to this Article
II.
SECTION 2.4 EFFECTIVE REGISTRATION STATEMENT. A registration
requested pursuant to this Article II shall not be deemed to have been effected
(i) unless a registration statement with respect thereto has become effective;
provided, that a registration which does not become effective after the Company
has filed a registration statement with respect thereto solely by reason of the
refusal to proceed of the Initiating Holders (other than a refusal to proceed
based upon the advice of counsel relating to a matter with respect to the
Company) shall be deemed to have been effected by the Company at the request of
such Initiating Holders unless the Initiating Holders shall have elected to pay
all Registration Expenses in connection with such registration, (ii) if, after
it has become effective, such registration is withdrawn by the Company (other
than at the request of a majority of the Initiating Holders), interfered with by
any stop order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason prior to the expiration of a
30 day period following such registration statement effectiveness (or,
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in the case of a Shelf Registration, the time period provided in Section 2.8),
or (iii) the conditions to closing specified in any purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied, other than due solely to some act or omission by such Initiating
Holders.
SECTION 2.5 SELECTION OF UNDERWRITERS. If a requested
registration pursuant to this Article II involves an underwritten offering, the
underwriter or underwriters thereof shall be selected by the consent of holders
of a majority (by number of Units) of Registrable Securities and shall be
reasonably acceptable to the Company.
SECTION 2.6 PRIORITY IN REQUESTED REGISTRATIONS. If a requested
registration pursuant to this Article II involves an underwritten offering, and
the managing underwriter shall advise the Company in writing (with a copy to
each holder of Registrable Securities requesting registration) that, in its
opinion, the number of securities requested to be included in such registration
(including securities of the Company which are not Registrable Securities)
exceeds the number which can be sold in such offering within a price range
reasonably acceptable to the Company and to the holders of a majority (by number
of Units) of the Registrable Securities requested to be included in such
registration, the Company will include in such registration, to the extent of
the number which the Company is so advised can be sold in such offering, (i)
first, Registrable Securities requested to be included in such registration pro
rata among the holders thereof requesting such registration as provided in
Section 2.1 on the basis of the number of such securities requested to be
included in such registration by the holder or holders of Registrable
Securities, and (ii) second, other securities of the Company included in such
registration in any manner and amount selected by the Company.
SECTION 2.7 SHELF-REGISTRATION. A request by an Initiating Holder
pursuant to Section 2.1 may specify that the intended method of disposition is a
"shelf offering" ("SHELF OFFERING REQUEST"); provided that, at the time of such
request, the Company is eligible to use Form S-3 (or any successor form) to
register the sale of Registrable Securities by the Unitholders. In addition to
the other obligations of the Company set forth herein, in connection with a
Shelf Offering Request, the Company will file a "shelf" registration statement
on an appropriate form pursuant to Rule 415 under the Securities Act or any
similar rule that may be adopted by the Commission with respect to all
Registrable Securities the Company is required to effect the registration of
under this Article II (a "SHELF REGISTRATION"). The Company shall keep the Shelf
Registration continuously effective for a period of at least 24 months following
the date on which the Shelf Registration is declared effective (or such shorter
period that terminates on the earlier of (i) a date specified by the holders of
a majority (by number of Units) of the Registrable Securities covered by such
statement or (ii) the date on which all Registrable Securities covered by such
Shelf Registration have been sold or withdrawn, but in no case prior to the
expiration of the 90-day period referred to in Section 4(3) of the Securities
Act and rule 174 thereunder, if applicable). The Company shall supplement or
make amendments to the Shelf Registration, if required by the registration form
used by the Company, the instructions thereto, the Securities Act or the rules
and regulations of the Commission, or if reasonably requested by a holder of
Registrable Securities covered by
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the Shelf Registration. The Company will furnish the holders of Registrable
Securities covered by the Shelf Registration a copy of all such supplements or
amendments at least one business day prior to filing such supplement or
amendment.
ARTICLE III.
"PIGGY BACK" REGISTRATION
SECTION 3.1 RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the
Company at any time proposes to file a registration statement under the
Securities Act covering any of its equity securities other than a registration
on Forms S-4 or S-8, or any successor or similar forms and other than pursuant
to Article II, whether or not for sale or its own account, it will each such
time give prompt written notice to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this Article III. Upon the
written request of any such 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 and the intended method of disposition thereof),
the Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the holders thereof, to the extent requisite to permit
the disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities so to be registered, by inclusion of such
Registrable Securities in the registration statement which covers the securities
which the Company proposes to register; provided, 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 either not to register
or to delay registration of such securities, the Company may, at its election,
give written notice of such determination to each holder of Registrable
Securities 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 or holders of Registrable Securities entitled to do so
to request that such registration be effected as a registration under Article II
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
Article III shall relieve the Company of its obligation to effect any
registration upon request under Article II. The Company will pay all
Registration Expenses incurred by holders by Registrable Securities in
connection with each registration of Registrable Securities requested pursuant
to this Article III.
SECTION 3.2 PRIORITY IN PIGGY-BACK REGISTRATIONS. If (i) a
registration pursuant to this Article III 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 of recognized standing under underwriting terms appropriate
for such a transaction, and (ii) the managing underwriter of such underwritten
offering shall inform the Company and holders of the Registrable Securities
requesting such registration by letter of its belief that the distribution of
all or a specified
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number of such Registrable Securities concurrently with the securities being
distributed by such underwriters would interfere with the successful marketing
of the securities being distributed by such underwriters (such writing to state
the basis of such belief and the approximate number of such Registrable
Securities which may be distributed without such effect), then the Company may,
upon written notice to all holders of such Registrable Securities, reduce pro
rata (if and to the extent stated by such managing underwriter to be necessary
to eliminate such effect) the number of such Registrable Securities and
securities proposed to be sold by any Person (other than the Company or Persons
with "demand" or similar registration rights that have requested such
registration pursuant to a written agreement with the Company) the registration
of which shall have been requested by each holder of Registrable Securities and
each Person so that the resultant aggregate number of such Registrable
Securities and securities proposed to be registered by other Persons so included
in such registration shall be equal to the number of Units stated in such
managing underwriter's letter.
ARTICLE IV.
REGISTRATION PROCEDURES
SECTION 4.1 PREPARATION OF FILINGS. 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 Articles II or
III, the following shall apply:
(a) REGISTRATION STATEMENT. The Company shall
promptly prepare and file (in the case of a registration pursuant to Article II,
such filing to be made within 90 days after the initial request of one or more
Initiating Holders of Registrable Securities or in any event as soon after such
request as possible) with the Commission the requisite registration statement to
effect such registration (including such audited financial statements as may be
required by the Securities Act or the rules and regulations promulgated
thereunder) and thereafter use its best efforts to cause such registration
statement to become and remain effective; provided, however, that the Company
may withdraw any registration of its securities which are not Registrable
Securities (and, under the circumstances specified in Section 3.2, its
securities which are Registrable Securities) at any time prior to the effective
date of the registration statement relating thereto; provided further, that
before filing such registration statement or any amendments thereto, the Company
will furnish to the holders of Registrable Securities that are to be included in
such registration and their counsel copies of all such documents proposed to be
filed, which documents will be subject to the review and reasonable approval of
such holders and their counsel. Notwithstanding the foregoing provisions of this
Section 4.1 and any other provisions of this Agreement, the Company shall not be
required to prepare and file a registration statement at any time during which
the Company, after making commercially reasonable efforts, is unable to cause
its financial statements to be audited.
(b) AMENDMENTS. The Company shall prepare and
file with the Commission such amendments, post effective amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions
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of the Securities Act with respect to the disposition of all securities covered
by such registration statement for the following time periods: (i) in the case
of a Shelf Registration under Article II, the time period specified in Section
2.8; (ii) in the case of a registration under Article II other than a Shelf
Registration, 30 days or such shorter period as all Registrable Securities have
been sold in accordance with the intended methods of disposition specified by
the holders thereof; and (iii) in the case of a registration under Article III,
such period of time as the Company determines.
(c) COPIES OF DOCUMENTS. The Company shall
furnish to each seller of Registrable Securities covered by such registration
statement and each underwriter, if any, of the securities being sold by such
seller such number of conformed copies of such registration statement and of
each amendment and supplement thereto (in each case including all exhibits to
such registration statement), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed pursuant to Rule 424 under
the Securities Act and such other documents, as such seller and underwriter, if
any, may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such Seller (it being
understood that the Company consents to the use of the prospectus and any
amendments or supplement thereto by each holder of Registrable Securities
covered by the registration statement and the underwriter or underwriters, if
any, in connection with the offering and sale of Registrable Securities covered
by the prospectus or any amendment or supplement thereto).
(d) BLUE-SKY. The Company will use its best
efforts to register or qualify all Registrable Securities under the securities
laws or blue sky laws of the jurisdictions as any seller thereof and any
underwriter of the securities being sold by such seller of Registrable
Securities shall reasonably request, to keep such registrations or
qualifications 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 such seller and underwriter to consummate the disposition in such
jurisdictions of the securities owned by such seller, 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 subsection (d) be obligated to be so qualified, or to
consent to general service of process in any such jurisdiction.
(e) OTHER APPROVALS. The Company will 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 seller or sellers thereof to
consummate the intended disposition of such Registrable Securities.
(f) NOTICE OF EVENTS. The Company will notify
each seller of Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon the Company's discovery that, or upon the happening of
any event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue
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statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and at the request of
any such seller promptly prepare and furnish to such seller and each
underwriter, if any, a reasonable number of copies of a supplement to or an
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 the statements therein, in
light of the circumstances under which they were made, not misleading.
(g) EARNINGS STATEMENT. The Company will
otherwise use commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement 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, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(h) LISTING. The Company will cause all
Registrable Securities covered by the registration statement to be listed on
each securities exchange or traded or quoted on each market on which the same
class of securities issued by the Company are then listed, traded or quoted.
(i) TRANSFER AGENT. The Company will provide a
transfer agent, registrar and a CUSIP number for all Registrable Securities no
later than the effective date of such registration statement.
(j) ACCESS. The Company will make available for
inspection by any holder of Registrable Securities included in such registration
statement, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter (collectively, the "INSPECTORS"), all financial
and other records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such Inspector in connection with such registration statement; provided
that records which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in the registration statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction; provided, further, that any decision not to
disclose information pursuant to clause (i) shall be made after consultation
with counsel for the Company and counsel for such holders; and each holder of
Registrable Securities agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
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Company and allow the Company at its expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential.
(k) DATA FROM HOLDERS OF REGISTRABLE SECURITIES.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such Registrable Securities as the Company
may from time to time reasonably request in writing.
(l) DISCONTINUANCE OF USE OF PROSPECTUS. Each
holder of Registrable Securities agrees by acquisition of such Registrable
Securities that, upon receipt of any written notice from the Company of the
occurrence of any event of the kind described in Section 4.1(g), such holder
will forthwith discontinue such holder's offer 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 Section 4.1(g) 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
relating to such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period
mentioned in Section 4.1(b) shall be extended by the length of the period from
and including the date when each seller of any Registrable Securities covered by
such registration statement shall have received such notice to the date on which
each such seller has received the copies of the supplemented or amended
prospectus contemplated by Section 4.1(g).
(m) UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Article II, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in form and substance to the Company,
each such holder and the underwriters, and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in
agreements of this type, including, without limitation, indemnities to the
effect and to the extent provided in Section 5.1. The holders of the Registrable
Securities will cooperate with the Company in the negotiation of the
underwriting agreement and will give consideration to the reasonable suggestions
of the Company regarding the form thereof; provided, that nothing herein
contained shall diminish the foregoing obligations of the Company. The holders
of Registrable Securities to be distributed by such underwriters shall be
parties to such underwriting agreement and may, at their option, require that
any or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such holders of Registrable Securities and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such holders of Registrable Securities. Any such holder of
Registrable Securities shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder, such holder's
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Registrable Securities and such holder's intended method of distribution and any
other representation required by law.
SECTION 4.2 HOLDBACK AGREEMENTS. The Company agrees if so
required by a managing underwriter of an offering of Registrable Securities not
to effect any public sale or distribution of its equity securities or securities
convertible into or exchangeable or exercisable for any of such securities
during the seven days prior to and the 90 days after any underwritten
registration pursuant to Articles II or III has become effective, except as part
of such underwritten registration and except pursuant to registrations on Form
S-4 or S-8, or any successor or similar forms thereto.
SECTION 4.3 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 holders of
Registrable Securities registered under such registration statement, their
underwriters, if any, and their respective counsel and accountants, the
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 who have
certified its financial statements as shall be necessary, in the opinion of such
holders' and such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
ARTICLE V.
INDEMNIFICATION
SECTION 5.1 INDEMNIFICATION BY THE COMPANY. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless in the case of any
registration statement filed pursuant to Articles II and III, the holder of any
Registrable Securities covered by such registration statement, its directors and
officers, each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who controls such
holder of Registrable Securities or any such underwriter within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such holder of Registrable Securities or any such director or
officer or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and the Company will reimburse such
holder, and each such director, officer, underwriter and controlling person for
any legal or any other expenses reasonably incurred by them in connection with
10
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense 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 through an instrument duly
executed by such holder, specifically stating that its for use in the
preparation thereof and, provided further that the Company shall not be liable
to any Person who participates as an underwriter, in the offering or sale of
Registrable Securities or to any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
within the time required by the Securities Act 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.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder of Registrable Securities or
any such director, officer, underwriter or controlling person and shall survive
the transfer of such securities by such holder.
SECTION 5.2 INDEMNIFICATION BY THE SELLERS. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Article II or III, that the Company
shall have received an undertaking satisfactory to it from the prospective
seller of Registrable Securities, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section 5.1) the Company, each
director of the Company, each officer of the Company and each other Person, if
any, who controls the Company 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 through an instrument duly executed by such seller specifically stating
that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, that such Sellers' liability under such indemnification
shall be limited to the dollar amount of the proceeds received by such seller
from the sale of the Company's securities pursuant to 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 or controlling person and shall survive the transfer of such
securities by such seller.
SECTION 5.3 NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to
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in Sections 5.1 or 5.2, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of 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 Sections 5.1 or 5.2, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless such indemnified party has been advised by counsel a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim (in which case, if such indemnified party notifies the indemnifying party
in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action or proceeding on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for such
indemnified party and any other indemnified parties, which firm shall be
designated in writing by such indemnified parties), the indemnifying party shall
be entitled to participate in and to assume the defense thereof, jointly with
any other indemnifying party similarly notified, to the extent that the
indemnifying party 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. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement of any such action 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, or a covenant not to
xxx, in respect to such claim or litigation. No indemnified party shall consent
to entry of any judgment or enter into any settlement of any such action the
defense of which has been assumed by an indemnifying party without the consent
of such indemnifying party.
SECTION 5.4 OTHER INDEMNIFICATION. Indemnification similar to
that specified in Sections 5.1 and 5.2 (with appropriate modifications) shall be
given by the Company and each seller of Registrable Securities 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.
SECTION 5.5 INDEMNIFICATION PAYMENTS. The indemnification
required by this Article V 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.
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ARTICLE VI.
RULE 144
SECTION 6.1 RULE 144. The Company shall timely file the reports
required to be filed by it under the Securities Act and the Exchange Act
(including but not limited to the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Securities and Exchange Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, will, upon the request of any holder of
Registrable Securities, make publicly available the other information referred
to in subparagraph (c)(2) of Rule 144 under the Securities Act) and will take
such further action as any holder of Registrable Securities 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; provided, however, that the
Company shall not be under any obligation to comply with any of the foregoing
requirement at any time during which the Company, after making commercially
reasonable efforts, is unable to cause its financial statements to be audited.
Upon the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1 REMEDIES. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of such a
breach and hereby agrees to waive the defense in any action for specific
performance of such an obligation that a remedy at law would be adequate.
SECTION 7.2 NO INCONSISTENT AGREEMENTS. Without the written
consent of the holders of a majority of the then outstanding Registrable
Securities, the Company will not on or after the date of this Agreement enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement with respect to its securities granting any
registration rights to any Person. The rights granted to the holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreements previously entered into by the Company.
SECTION 7.3 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The
Company will not take any action, or permit any change to occur, with respect to
the Registrable Securities which would adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
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SECTION 7.4 ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. 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 of any Registrable
Securities.
SECTION 7.5 DESCRIPTIVE HEADINGS. 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.
SECTION 7.6 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 TEXAS WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS
OF LAWS.
SECTION 7.7 COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 7.8 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the Company and each other party hereto and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
SECTION 7.9 SEVERABILITY. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
SECTION 7.10 AMENDMENTS AND WAIVERS. This Agreement may be amended
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent to such amendment, action or omission to act, of
the holder or holders of 51% or more of the Units of Registrable Securities.
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 7.10, whether or not
such Registrable Securities shall have been marked to indicate such consent.
SECTION 7.11 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, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of Units of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so
14
elects, the Company may require assurances reasonably satisfactory to it of such
owner's beneficial ownership of such Registrable Securities.
SECTION 7.12 NOTICES. Except as otherwise provided in this
Agreement, all communications provided for hereunder shall be in writing and
sent by first-class mail, postage prepaid, and (a) if addressed to a party to
this Agreement other than the Company, at the address of such party set forth in
Exhibit A or at such other address as such party shall have furnished to the
Company in writing, or (b) if addressed to any other holder of Registrable
Securities, at the address that such holder shall have furnished to the Company
in writing, or, until any such other holder so furnishes to the Company an
address, then to and at the address of the last holder of such Registrable
Securities who has furnished an address to the Company, or (c) if addressed to
the Company, EOTT Energy LLC, 0000 Xxxx Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 to the attention of its General Counsel, or at such other address,
or to the attention of such other officer, as the Company shall have furnished
to each holder of Registrable Securities at the time outstanding.
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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.
EOTT ENERGY LLC
By:_________________________________
Xxxx X. Xxxxx, President
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EXHIBIT A
Name and address of Unitholder:
Name:_______________________________________________________________
Address:____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
Number of Units held:_______________________________________________
Signature:__________________________________________________________
Exhibit A - Page 1 of 1
