REGISTRATION RIGHTS AGREEMENT NIELSON & ASSOCIATES, INC. APRIL 16, 2007
Exhibit
4.4
XXXXXXX &
ASSOCIATES, INC.
APRIL
16, 2007
*
* * * * * * * * *
TABLE
OF CONTENTS
Page
|
Article
1
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||
|
Defined
Terms
|
||
|
Article
2
|
||
|
Registration
Rights
|
||
|
2.1
|
Piggyback
Registration.
|
5
|
|
2.2
|
Demand
Registration.
|
7
|
|
2.3
|
Underwritten
Offerings.
|
10
|
|
2.4
|
Postponements.
|
10
|
|
Article
3
|
||
|
Registration
Procedures
|
||
|
3.1
|
Obligations
of the MLP.
|
11
|
|
3.2
|
Seller
Information.
|
16
|
|
3.3
|
Notice
to Discontinue.
|
16
|
|
Article
4
|
||
|
Registration
Expenses
|
||
|
Article
5
|
||
|
Free
Writing Prospectus
|
||
|
Article
6
|
||
|
Indemnification
|
||
|
6.1
|
Indemnification
by the MLP.
|
18
|
|
6.2
|
Indemnification
by Holders.
|
18
|
|
6.3
|
Conduct
of Indemnification Proceedings.
|
19
|
|
6.4
|
Contribution.
|
20
|
|
6.5
|
Other
Indemnification.
|
21
|
|
6.6
|
Indemnification
Payments.
|
21
|
|
6.7
|
Survivability. The
obligations of the Company and Holders under this Article 6 shall
survive
the completion of any offering of Registrable Securities and the
termination of this Agreement for any reason.
|
21
|
|
6.8
|
Conflicting
Provisions.
|
21
|
|
Article
7
|
||
|
Compliance
with Rule 144
|
||
|
Article
8
|
||
|
Miscellaneous
|
||
|
8.1
|
Notices.
|
22
|
|
8.2
|
Assignment
of Rights.
|
22
|
|
8.3
|
Limitation
of Rights.
|
23
|
|
8.4
|
Recapitalization,
Exchanges, etc. Affecting the Units.
|
23
|
|
8.5
|
Specific
Performance.
|
23
|
ii
|
8.6
|
Counterparts.
|
23
|
|
8.7
|
Headings.
|
23
|
|
8.8
|
Governing
Law.
|
24
|
|
8.9
|
Severability
of Provisions.
|
24
|
|
8.10
|
Entire
Agreement.
|
24
|
|
8.11
|
Amendment.
|
24
|
|
8.12
|
No
Presumption.
|
24
|
iii
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into
on the 16th day
of April, 2007 (the “Effective Date”), by and among Xxxxxxx
& Associates, Inc., a Wyoming corporation (“Xxxxxxx”),
Legacy Reserves LP, a Delaware limited partnership (the “MLP”),
and Legacy Reserves GP, LLC, a Delaware limited liability company (the
“General Partner”), for itself and on behalf of the MLP in its
capacity as general partner. The above-named entities are sometimes
referred to in this Agreement each as a “Party” and collectively
as the “Parties.” Terms that are capitalized but not
defined shall have the meanings assigned to such terms in Article 1 hereof.
RECITALS
WHEREAS,
on March 15, 2006, the MLP completed a private placement (the
“Private Placement”) of units representing limited partner
interests in the MLP (“Units”) to the purchasers (the
“Investors”) identified in the purchase/placement
agreement
dated March 6, 2006 between the MLP and Friedman, Billings, Xxxxxx &
Co., Inc. (“FBR”) (the “Placement Agreement”);
and
WHEREAS,
pursuant to the Placement Agreement and as an inducement to the Investors to
purchase the Units in the Private Placement, the MLP and the General Partner
entered into a Registration Rights Agreement with the Investors (the
“Investors Registration Rights Agreement”) providing
registration rights to the Investors as more particularly provided therein;
and
WHEREAS,
the MLP and the General Partner entered into a registration rights agreement
dated March 15, 2006 ( the “Founders Registration Rights
Agreement”) with the other parties thereto (the
“”Founders”) providing registration rights to the Founders
as
more particularly provided therein; and
WHEREAS,
pursuant to the Investors Registration Rights Agreement on May 12, 2006 the
MLP filed with the Commission two registration statements on Form S-1, one
each
for the Investors and FBR (the “FBR Registration Statement”);
and
WHEREAS,
the MLP and the General Partner entered into a registration rights agreement
dated June 29, 2006 (the “Xxxxx Registration Rights
Agreement”) with Xxxxx Holding LP (“Xxxxx”) providing
registration rights to Xxxxx as more particularly provided therein;
and
WHEREAS,
Legacy Reserves Operating LP, a Delaware limited partnership and subsidiary
of
the MLP (“Operating”) and Xxxxxxx have entered into a purchase
and sale agreement (the “Purchase Agreement”) dated March 20,
2007; and
WHEREAS,
the Purchase Agreement contemplates that Units will be issued to Xxxxxxx
(“Purchase Price Units”) as partial consideration for the
Purchase
Price (as such term is defined in the Purchase Agreement) and that the parties
hereto will execute this Agreement to more fully set forth the registration
rights of Xxxxxxx.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE
1
DEFINED
TERMS
.
When
used
in this Agreement, the following terms shall have the respective meanings set
forth below:
“Affiliate”
has the meaning specified in Rule 12b-2 under the Exchange Act. The
term “Affiliates” has a correlative meaning.
“Agent”
is defined in Section 6.1.
“Agreement”
is defined in the introductory paragraph of this Agreement.
“Blackout
Notice” is defined in Section 2.4.
“Blackout
Period” is defined in Section 2.4.
“Board”
means the board of directors of the General Partner.
“Business
Day” means with respect to any act to be performed hereunder, each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in New York, New York or other applicable places where such act
is
to occur are authorized or obligated by applicable law, regulation or executive
order to close.
“Claims”
is defined in Section 6.1.
“Commission”
means the Securities and Exchange Commission.
“Demand
Registration” is defined in Section 2.2.1(a).
“Demand
Registration Statement” means a Registration Statement of the MLP which
covers the Registrable Securities requested to be included therein pursuant
to
Section 2.2.
“Effective
Date” is defined in the introductory paragraph of this
Agreement.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
-2-
“FBR
Registration Statement” is defined in the Recitals to this
Agreement.
“Form
S-3” means such form under the Securities Act as in effect on the date
hereof or any registration form under the Securities Act subsequently adopted
by
the Commission that permits incorporation of substantial information by
reference to other documents filed by the MLP with the Commission.
“Founders”
is defined in the Recitals to this Agreement.
“Founders
Registration Rights Agreement” is defined in the Recitals to this
Agreement.
“Free
Writing Prospectus” means a free writing prospectus, as defined in
Rule 405 under the Securities Act.
“General
Partner” is defined in the introductory paragraph of this
Agreement.
“Xxxxx”
is defined in the Recitals to this Agreement.
“Xxxxx
Registration Rights Agreement” is defined in the Recitals to this
Agreement.
“Holders”
means each of (i) Xxxxxxx for so long as it owns any Registrable Securities
and
(ii) Xxxxxxx’x Permitted Transferees and (iii) their respective heirs,
successors and permitted assigns who acquire or are otherwise the transferee
of
the Registrable Securities, directly or indirectly from Xxxxxxx (or any
subsequent Holder), for so long as such Permitted Transferee, heir, successor
and permitted assign owns any Registrable Securities.
“Initiating
Holder(s)” means with respect to a particular Demand Registration, the
Holder or Holders who initiated the Request for such registration.
“Immediate
Family Member” means a child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, of a natural person referred to herein.
“Inspector”
and “Inspectors” are defined in
Section 3.1(g).
“Investors”
is defined in the Recitals to this Agreement.
“Investors
Registration Rights Agreement” is defined in the Recitals to this
Agreement.
“Issuer
Free Writing Prospectus” means an issuer free writing prospectus, as
defined in Rule 433 under the Securities Act.
“Majority
Holders of the Registration” means with respect to a particular
registration, one or more holders of securities who would hold a majority of
the
securities to be included in such registration.
“Market
Price” means the price of the Units sold in the Private
Placement.
“MLP”
is defined in the introductory paragraph of this Agreement.
-3-
“National
Securities Exchange” means an exchange registered with the Commission under
Section 6(a) of the Securities Exchange Act of 1934, as amended, supplemented
or
restated from time to time, and any successor to such statute.
“Xxxxxxx”
is defined in the introductory paragraph to this Agreement.
“Operating”
is defined in the Recitals to this Agreement.
“Partnership
Group” means the MLP, the General Partner, Operating, and Legacy Operating
GP, LLC, a Delaware limited liability company.
“Party”
and “Parties” are defined in the introductory paragraph of this
Agreement.
“Permitted
Free Writing Prospectus” is defined in Article 5.
“Permitted
Transferees” is defined in Section 8.2.
“Person”
means any individual, corporation, company, voluntary association, partnership,
joint venture, trust, limited liability company, unincorporated organization,
government or any agency, instrumentality or political subdivision thereof,
or
any other form of entity.
“Piggyback
Registration” is defined in Section 0.
“Piggyback
Registration Statement” means a Registration Statement of the MLP which
covers the Registrable Securities requested to be included therein pursuant
to
the provisions of Section 2.1.
“Placement
Agreement” is defined in the Recitals to this Agreement.
“Private
Placement” is defined in the Recitals to this Agreement.
“Prospectus”
means the prospectus included in the Registration Statement at each such time
as
the Registration Statement is filed with the Commission and at the time such
Registration Statement is declared effective, as amended or supplemented by
any
prospectus supplement and by all other amendments thereof, including
post-effective amendments, and all material incorporated by reference into
such
Prospectus.
“Purchase
Agreement” is defined in the Recitals to this Agreement.
“Purchase
Price” is defined in the Purchase Agreement.
“Purchase
Price Units” is defined in the Recitals to this Agreement.
“Registrable
Securities” means (i) the Purchase Price Units beneficially owned by
Xxxxxxx, (ii) the Purchase Price Units beneficially owned by the Permitted
Transferees and (iii) any other securities of the MLP (or successor or assign
of
the MLP, whether by merger, consolidation, sale of assets or otherwise) which
may be issued or issuable with respect to, in exchange for, or in substitution
of, any Purchase Price Units referenced in clauses (i) and (ii)
-4-
whether
by reason of any dividend or split, combination of securities, merger,
consolidation, recapitalization, reclassification, reorganization, sale of
assets or similar transaction. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (A)
a
Registration Statement with respect to the sale of such securities shall have
been declared effective under the Securities Act and such securities shall
have
been disposed of in accordance with such Registration Statement, (B) such
securities are sold pursuant to Rule 144 (or any successor provision) under
the
Securities Act, (C) such securities have been otherwise transferred and
subsequent public distribution of them shall not require registration under
the
Securities Act or (D) such securities shall cease to be
outstanding.
“Registration
Expenses” is defined in Article 4 of this Agreement.
“Registration
Statement” means a registration statement of the MLP concerning the sale of
its securities to the public, on an appropriate form under the Securities Act,
including the Prospectus included therein, all amendments thereof and
supplements thereto (including post-effective amendments) and all exhibits
and
all material incorporated therein.
“Request”
is defined in Section 2.2.1(a).
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Shelf
Registration” is defined in Section 2.2.1(a).
“Transfer”
means any sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage,
exchange or any other disposition by law or otherwise.
“Underwritten
Offering” means a sale of Units to an underwriter or underwriters for
reoffering to the public.
“Units”
is defined in the Recitals of this Agreement.
“Withdrawn
Demand Registration” is defined in Section
2.2.1(b).
“Withdrawn
Request” is defined in Section 2.2.1(b).
ARTICLE
2
REGISTRATION
RIGHTS
2.1 Piggyback
Registration.
Right
to Include Registrable Securities. If the MLP, at any time or
from time to time proposes to register the offering and sale of any of its
securities under the Securities Act (A) on Form S-3 (or any successor
to such form) or (B) on Form S-1 (or any successor to such form) in order to
effectuate an offering of Units to be newly issued by and for the account of
the
MLP and files (i) such a Registration Statement or (ii) proposes to do
a take down off of an effective shelf Registration Statement, other than the
FBR
Registration Statement, whether or not pursuant to registration rights granted
to other holders of its securities and whether or not for sale for its own
account, the MLP shall deliver prompt written notice (which notice shall be
given, to the extent
-5-
reasonably
practicable, at least 45 days prior to the filing of such Registration Statement
or ten (10) days prior to the filing of any preliminary prospectus supplement
pursuant to Rule 424(b), or the prospectus supplement pursuant to
Rule 424(b) (if no preliminary prospectus supplement is used)) to all
Holders of Registrable Securities of its intention to undertake such
registration or offering, describing in reasonable detail the proposed
registration and distribution (including the anticipated range of the proposed
offering price, the class and number of securities proposed to be registered
and
the distribution arrangements) and of such Holders’ right to participate in such
registration under this Section 2.1 as hereinafter
provided. Subject to the other provisions of this
Section 2.1, upon the written request of any Holder made
within 20 days with respect to the filing of a registration statement, and
within seven (7) days with respect to the filing of any preliminary prospectus
supplement pursuant to Rule 424(b), or the prospectus supplement pursuant
to Rule 424(b) (if no preliminary prospectus supplement is used), after the
receipt of such written notice (which request shall specify the amount of
Registrable Securities to be registered and the intended method of disposition
thereof), the MLP shall effect the registration under the Securities Act of
all
Registrable Securities requested by Holders to be so registered (a
“Piggyback Registration”), to the extent required 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
MLP proposes to register and shall cause such Registration Statement to become
and remain effective with respect to such Registrable Securities for the period
provided in Section 3.1(b). If a Piggyback Registration
involves an Underwritten Offering, immediately upon notification to the MLP
from
the underwriter of the price at which such securities are to be sold, the MLP
shall so advise each participating Holder. The Holders requesting
inclusion in a Piggyback Registration may, at any time up to and including
the
time of pricing of the Piggyback Registration Statement (and for any reason),
revoke such request by delivering written notice to the MLP revoking such
requested inclusion.
If
at any
time after giving written notice of its intention to register any securities
and
up to and including the time of effectiveness or, if applicable, pricing of
the
Piggyback Registration Statement filed in connection with such registration,
the
MLP shall determine for any reason not to register or to delay registration
of
such securities, the MLP 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, the MLP 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 incurred in connection therewith), without prejudice, however, to
the
rights of Holders to cause such registration to be effected as a Demand
Registration under Section 2.2, subject, however, to the
provisions of Section 2.4 and (ii) in the case of a
determination to delay such registration, the MLP shall be permitted to delay
the registration of such Registrable Securities for the same period as the
delay
in registering such other securities; provided, however, that if such delay
shall extend beyond 120 days from the date the MLP received a request to include
Registrable Securities in such Piggyback Registration, then the MLP shall again
give all Holders the opportunity to participate therein and shall follow the
notification procedures set forth in the preceding paragraph. There
is no limitation on the number of such Piggyback Registrations pursuant to
this
Section 2.1 which the MLP is obligated to
effect.
The
registration rights granted pursuant to provisions of this Section 2.1
shall be in addition to the registration rights granted pursuant to the other
provisions of Article 2 hereof.
2.1.1 Priority
in Incidental Registration. If a Piggyback Registration involves
an Underwritten Offering, and the sole or the lead managing underwriter, as
the
case may be, of such Underwritten Offering shall advise the MLP in writing
on or
before the date ten (10) days prior to the date then scheduled for such offering
that, in its opinion, the amount of securities (including Registrable
Securities) requested to be included in such registration exceeds the amount
which can be sold in such offering without materially interfering with the
successful marketing of the securities being offered, the MLP shall include
in
such registration, to the extent of the number which the MLP is so advised
may
be included in such offering without such effect (subject to the Investors’
pro rata allocation rights set forth in the Investors Registration
Rights Agreement and the Founders’ allocation rights set forth in the Founders
Registration Rights Agreement and Henry’s allocation rights set forth in the
Xxxxx Registration Rights Agreement) (i) first, the number of Registrable
Securities requested to be included therein by the Holders allocated pro
rata among such Holders and based, for each such selling Holder, on the
percentage derived by dividing (A) the number of Registrable Securities proposed
to be sold by such Holder, by (B) the aggregate number of Registrable Securities
proposed to be sold by each such Holder in such Piggyback Registration, and
(ii) second, only if all of the Registrable Securities in clause (i)
have been included, any other securities requested to be included
therein.
2.1.2 Selection
of Underwriters. If any Piggyback Registration involves an
Underwritten Offering, the sole or managing underwriters and any additional
investment bankers and managers to be used in connection with such registration
shall be subject to the approval of the Majority Holders of the
Registration.
2.2 Demand
Registration.
2.2.1 Request
for Registration.
(a) Subject
to the terms of this Agreement and Section 2.2.7 of the Founders
Registration Rights Agreement, each Holder at any time commencing after the
expiration of a six-months period following the Closing under the Purchase
Agreement, may request registration by the MLP under the Securities Act of
all
or a part of such Holder’s Registrable Securities; provided, however
that the MLP is eligible to file a registration statement on Form S-3 (or any
successor to such form). Any such registration requested pursuant to
this Section 2.2 is referred to herein as a
“Demand Registration.” Any request
for a Demand Registration (each, a “Request”)
shall specify (i) the amount of Registrable Securities proposed to be registered
(provided,however that the amount of Registrable Securities
specified must be expected to result in aggregate gross proceeds to the Holders
of at least $5 million), and (ii) the intended method or methods and plan of
distribution thereof, including whether such requested registration is to
involve an Underwritten Offering. As promptly as practicable, but no
later than ten (10) days after receipt of a Request, the MLP shall give written
notice of such requested registration to all Holders of Registrable
Securities. Subject to Section 2.2.2, the MLP shall
include in a Demand Registration (i) the Registrable Securities intended to
be
disposed of by the Initiating Holders and (ii) the Registrable Securities
intended to be disposed of by any other Holder which shall have made a written
request (which request shall specify the amount of Registrable Securities to
be
registered and the intended method of disposition thereof) to the MLP for
inclusion thereof in such registration
-6-
within
20
days after the receipt of such written notice from the MLP. Promptly
following such a Request, the MLP shall thereafter as soon as practicable but
in
any event within 90 days file with the Commission, or otherwise designate an
existing filing as, a Demand Registration Statement providing for the
registration under the Securities Act of the Registrable Securities which the
MLP has been so requested to register by all such Holders, to the extent
necessary to permit the disposition of such Registrable Securities to be so
registered in accordance with the intended methods of disposition thereof
requested in such Request or further Request (including, without limitation,
by
means of a shelf registration pursuant to Rule 415 under the Securities Act
(a
“Shelf Registration”) if so requested and if the MLP is then eligible to use
such a registration). The MLP shall thereafter (i) use its
commercially reasonable efforts to cause such Demand Registration Statement
promptly to be declared effective under (A) the Securities Act and (B) the “blue
sky” laws of such jurisdictions as any seller of Registrable Securities being
registered under such Demand Registration Statement or any other underwriter,
if
any, reasonably requests; or (ii) otherwise make available for use by such
Holders a previously filed effective Registration Statement for the offer and
sale of the Registrable Securities.
(b) A
Request may be withdrawn prior to the filing of the Demand Registration
Statement by the Initiating Holders (a “Withdrawn
Request”) and a Demand Registration Statement may be withdrawn
up to the time of effectiveness or, if applicable, pricing, by the Initiating
Holders of the registration (a “Withdrawn Demand
Registration”), and such withdrawal shall be treated as a
Demand Registration which shall have been effected pursuant to this Section
2.2, unless the Initiating Holders reimburse the MLP for its
reasonable out-of-pocket Registration Expenses relating to the preparation
and
filing of such Demand Registration Statement (to the extent actually incurred);
provided, however, that if a Withdrawn Request or Withdrawn Demand Registration
is made (A) because of a material adverse change in the business, financial
condition or prospects of the MLP, or (B) because the sole or lead managing
underwriter advises that the amount of Registrable Securities to be sold in
such
offering be reduced pursuant to Section 2.2.2 by more than twenty
percent (20%) of the Registrable Securities to be included in such Registration
Statement, or (C) because of the postponement of such registration pursuant
to
Section 2.4, then such withdrawal shall not be treated as a Demand
Registration effected pursuant to this Section 2.2 (and shall not
be counted toward the number of Demand Registrations), and the MLP shall pay
all
Registration Expenses in connection therewith. Any Holder requesting
inclusion in a Demand Registration may, at any time up to the time of
effectiveness or, if applicable, pricing of the offering related to the Demand
Registration Statement revoke such request by delivering written notice to
the
MLP revoking such requested inclusion.
(c) The
registration rights granted pursuant to provisions of this Section
2.2 shall be in addition to the registration rights granted pursuant
to the other provisions of Article 2 hereof.
2.2.2 Priority
in Demand Registrations. If a Demand Registration involves an
Underwritten Offering, and the sole or lead managing underwriter, as the case
may be, of such Underwritten Offering shall advise the MLP in writing, with
a
copy to each Holder requesting
-7-
registration,
on or before the date ten (10) days prior to the date then scheduled for such
offering that, in its opinion, the amount of Registrable Securities requested
to
be included in such Demand Registration exceeds the number which can be sold
in
such offering within a price range acceptable to the Initiating Holders, the
MLP
shall include in such Demand Registration, to the extent of the number which
the
MLP is so advised may be included in such offering, the Registrable Securities
requested to be included in the Demand Registration by the Holders allocated
as
follows (subject to the Investors’ pro rata allocation rights set forth
in the Investors Registration Rights Agreement and the Founders’ allocation
rights set forth in the Founders Registration Rights Agreement and Henry’s
allocation rights set forth in the Xxxxx Registration Rights Agreement), (i)
first, the number of Registrable Securities requested to be included therein
by
the Holders allocated pro rata among such Holders and based, for each
such selling Holder, on the percentage derived by dividing (A) the number of
Registrable Securities proposed to be sold by such Holder in excess of the
number of Registrable Securities included in clause (i), by (B) the aggregate
number of Registrable Securities not included in clause (i) proposed to be
sold
by each such Holder in such Demand Registration, and (ii) second, only if all
of
the Registrable Securities in clause (i) have been included, any other
securities requested to be included therein.
2.2.3 Limitations
on Demand Registrations. The MLP shall not be obligated to
effect more than two Demand Registrations in any 12-month period.
2.2.4 Underwriting;
Selection of Underwriters. Notwithstanding anything to the contrary
contained in this Section 2.2, if the Initiating Holders so elect,
the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of a firm commitment Underwritten Offering; and such
Initiating Holders may require, in accordance with Section 2.3
below, that all Holders participating in such registration sell their
Registrable Securities to the underwriters at the same price and on the same
terms of underwriting applicable to the Initiating Holders. Except to
the extent the MLP has otherwise already agreed to hire designated underwriters
as required by the terms of the Private Placement, if any Demand Registration
involves an Underwritten Offering, the sole or managing underwriters and any
additional investment bankers and managers to be used in connection with such
registration shall be selected by the Initiating Holders, subject to the
approval of the MLP (such approval not to be unreasonably
withheld).
2.2.5 Effective
Registration Statement; Suspension. A Demand Registration Statement shall
not be deemed to have become effective (and the related registration will not
be
deemed to have been effected) (i) unless it has been declared effective by
the
Commission and remains effective in compliance with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such Demand Registration Statement for the period provided in
Section 3.1(b), (ii) if the offering of any Registrable Securities
pursuant to such Demand Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the Commission or any other
governmental agency or court, or (iii) if, in the case of an Underwritten
Offering, the conditions to closing specified in an underwriting agreement
to
which the MLP is a party are not satisfied other than by the sole reason of
any
breach or failure by the Holders of Registrable Securities or are not otherwise
waived.
-8-
2.2.6 Registration
Statement Form. Demand Registrations under this Section
2.2 shall be on such appropriate registration form of the
Commission
(i) as shall be selected by the Initiating Holders, and (ii) which shall be
available for the sale of Registrable Securities in accordance with the intended
method or methods of disposition specified in the requests for
registration. The MLP agrees to include in any such Registration
Statement all information which any selling Holder, upon advice of counsel,
shall reasonably request.
2.3 Underwritten
Offerings.
2.3.1 Demand
Underwritten Offerings. If requested by the sole or lead
managing underwriter for any Underwritten Offering effected pursuant to a Demand
Registration, the MLP shall enter into a customary underwriting agreement with
the underwriters for such offering, such agreement to be reasonably satisfactory
in substance and form to the Majority Holders of the Registration and to contain
such representations and warranties by the MLP, and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnification and contribution to the effect and to the extent provided in
Article 6.
2.3.2 Holders
of Registrable Securities to be Parties to Underwriting
Agreement. The Holders of Registrable Securities to be
distributed by underwriters in an Underwritten Offering contemplated by this
Article 2 shall be parties to the underwriting agreement between the MLP
and such underwriters and may, at such Holders’ option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the MLP 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; provided, however, that the MLP shall not
be
required to make any representations or warranties with respect to written
information specifically provided by a selling Holder for inclusion in the
Registration Statement. No Holder shall be required to make any
representations or warranties to, or agreements with, the MLP or the
underwriters other than representations, warranties or agreements regarding
such
Holder, such Holder’s Registrable Securities and such Holder’s intended method
of disposition.
2.3.3 Participation
in Underwritten Registration. Notwithstanding anything herein to
the contrary, no Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell its securities on the same
terms and conditions provided in any underwritten arrangements approved by
the
Persons entitled hereunder to approve such arrangement and (ii) accurately
completes and executes in a timely manner all questionnaires, powers of
attorney, indemnities, custody agreements, underwriting agreements and other
documents reasonably and customarily required under the terms of such
underwriting arrangements.
2.4 Postponements.
The
MLP shall be entitled to postpone a Demand Registration and to require the
Holders of Registrable Securities to discontinue the disposition of their
securities covered by a Shelf Registration during any Blackout Period (i) if
the
Board determines in good faith that effecting
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such
a
registration or continuing such disposition at such time would have a material
adverse effect upon a proposed sale of all (or substantially all) of the assets
of the Partnership Group or a merger, reorganization, recapitalization or
similar current transaction materially affecting the capital structure or equity
ownership of the Partnership Group, or (ii) if the MLP is in possession of
material information which the Board determines in good faith it is not in
the
best interests of the MLP to disclose in a Registration Statement at such time;
provided, however, that the MLP may only delay a Demand Registration pursuant
to
this Section 2.4 by delivery of a Blackout Notice within thirty
(30) days of delivery of the Request for such Demand Registration, and may
delay
a Demand Registration and require the Holders of Registrable Securities to
discontinue the disposition of their securities covered by a Shelf Registration
only for a reasonable period of time not to exceed ninety (90) days (or such
earlier time as such transaction is consummated or no longer proposed or the
material information has been made public) (the “Blackout
Period”), and provided further that the MLP shall not register any
securities for its own account or that of any other Person during such ninety
(90) day period. There shall not be more than one Blackout Period in
any 12-month period. The MLP shall promptly notify the Holders in
writing (a “Blackout Notice”), of any decision to postpone a
Demand Registration or to discontinue sales of Registrable Securities covered
by
a Shelf Registration pursuant to this Section 2.4 and shall
include a general statement of the reason for such postponement, an
approximation of the anticipated delay and an undertaking by the MLP promptly
to
notify the Holders as soon as a Demand Registration may be effected or sales
of
Registrable Securities covered by a Shelf Registration may resume. In
making any such determination to initiate or terminate a Blackout Period, the
MLP shall not be required to consult with or obtain the consent of any Holder,
and any such determination shall be the MLP’s sole
responsibility. Each Holder shall treat all notices received from the
MLP pursuant to this Section 2.4 constituting material inside
information in the strictest confidence and shall not trade on or disseminate
such information. If the MLP shall postpone the filing of a Demand
Registration Statement, the Initiating Holders shall have the right to withdraw
the request for registration. Any such withdrawal shall be made by
giving written notice to the MLP within thirty (30) days after receipt of the
Blackout Notice. Such withdrawn registration request shall not be
treated as a Demand Registration effected pursuant to Section 2.2
(and shall not be counted towards the number of Demand Registrations effected),
and the MLP shall pay all Registration Expenses in connection
therewith.
ARTICLE
3
REGISTRATION
PROCEDURES
3.1 Obligations
of the MLP.
Whenever
the MLP is required to effect the registration of Registrable Securities under
the Securities Act pursuant to Article 2 of this Agreement, the MLP shall
use its commercially reasonable efforts to:
(a) promptly
prepare and file with the Commission, or designate an existing filing as, a
Registration Statement to effect such registration, which Registration Statement
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the Commission
to be filed therewith, and the MLP shall use its commercially reasonable efforts
to cause such Registration Statement to become effective (provided, that the
MLP
may discontinue any
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registration
of its securities
that are not Registrable Securities, and, under the circumstances specified
in
Section 0, its securities that are Registrable Securities);
provided, however, that before filing a Registration Statement or Prospectus
or
any amendments or supplements thereto, or comparable statements under securities
or blue sky laws of any jurisdiction, the MLP shall (i) provide Holders’ counsel
and any other Inspector with an adequate and appropriate opportunity to
participate in the preparation of such Registration Statements and each
Prospectus included therein (and each amendment or supplement thereto or
comparable statement) to be filed with the Commission, which documents shall
be
subject to the review and comment of Holders’ counsel, and (ii) not file any
such Registration Statement or Prospectus (or amendment or supplement thereto
or
comparable statement) with the Commission to which Holder’s counsel, any selling
Holder or any other Inspector shall have reasonably objected on the grounds
that
such filing does not comply in all material respects with the requirements
of
the Securities Act or of the rules or regulations thereunder;
(b) 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 (i) to keep such Registration Statement effective, and
(ii) to comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by such Registration
Statement, in each case until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition
by
the seller(s) thereof set forth in such Registration Statement; provided, that
except with respect to any Shelf Registration, such period need not extend
beyond nine months after the effective date of the Registration Statement;
and
provided, further, that with respect to any Shelf Registration, such period
need
not extend beyond the time when all Registrable Securities covered by such
shelf
registration may be sold pursuant to Rule 144(k) under the Securities Act,
and
which periods, in any event, shall terminate when all Registrable Securities
covered by such Registration Statement have been sold (but not before the
expiration of the 90-day period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable);
(c) furnish,
without charge, to each selling Holder of such Registrable Securities and each
underwriter, if any, of the securities covered by such Registration Statement,
such number of copies of such Registration Statement and the Prospectus included
in such Registration Statement (including each preliminary Prospectus), any
Issuer Free Writing Prospectuses, and each amendment and supplement to any
of
the foregoing (in each case including all exhibits), in conformity with the
requirements of the Securities Act, and such other documents as such selling
Holder and underwriter may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities owned by such selling
Holder (the MLP hereby consenting to the use in accordance with applicable
law
of each such Registration Statement (or amendment or post-effective amendment
thereto), each such Prospectus (or preliminary prospectus or supplement thereto)
and any Issuer Free Writing Prospectus by each such selling Holder of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Registration
Statement or Prospectus);
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(d) prior
to any public offering of Registrable Securities, 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
any selling Holder of Registrable Securities covered by such Registration
Statement or the sole or lead managing underwriter, if any, may reasonably
request to enable such selling Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such selling Holder and
to
continue such registration or qualification in effect in each such jurisdiction
for as long as such Registration Statement remains in effect (including through
new filings or amendments or renewals), and do any and all other acts and things
which may be necessary or advisable to enable any such selling Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such selling Holder; provided, however, that the MLP shall not be
required to (i) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this
Section 3.1(d), (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of process in
any such jurisdiction;
(e) to
obtain all other approvals, consents, exemptions or authorizations from such
governmental agencies or authorities as may be necessary to enable the selling
Holders of such Registrable Securities to consummate the disposition of such
Registrable Securities;
(f) promptly
notify Holders’ counsel, each Holder of Registrable Securities covered by such
Registration Statement and the sole or lead managing underwriter, if
any: (i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any prospectus supplement related thereto, Issuer
Free Writing Prospectus, or post-effective amendment to the Registration
Statement has been filed and, with respect to the Registration Statement or
any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission or any state securities or blue sky authority for
amendments or supplements to the Registration Statement, the Prospectus or
the
Issuer Free Writing Prospectus related thereto or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat of
any
proceedings for that purpose, (iv) of the receipt by the MLP of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose, (v) of
the existence of any fact of which the MLP becomes aware or the happening of
any
event which results in (A) the Registration Statement containing an untrue
statement of a material fact or omitting to state a material fact required
to be
stated therein or necessary to make any statements therein not misleading,
or
(B) the Prospectus included in such Registration Statement or any Issuer
Free Writing Prospectus containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein or necessary
to
make any statements therein, in the light of the circumstances under which
they
were made, not misleading, (vi) if at any time the representations and
warranties contemplated by Section 2.3.1 cease to be true and
correct in all material respects, and (vii) of the MLP’s reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate or that there exists circumstances not yet disclosed to the
public which make further sales under such
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Registration
Statement inadvisable pending such disclosure and post-effective amendment;
and,
if the notification relates to an event described in any of the
clauses (ii) through (vii) of this
Section 3.1(f), the MLP shall promptly prepare a
supplement or post-effective amendment to such Registration Statement, related
Prospectus or Issuer Free Writing Prospectus or any document incorporated
therein by reference or file any other required document so that (1) such
Registration Statement shall not contain any untrue statement of a material
fact
or omit to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, and (2) as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, 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 the light of the circumstances under which they were
made
not misleading (and shall furnish to each such Holder and each underwriter,
if
any, a reasonable number of copies of such Prospectus or Issuer Free Writing
Prospectus so supplemented or amended); and if the notification relates to
an
event described in clause (iii) of this
Section 3.1(f), the MLP shall take all reasonable
action required to prevent the entry of such stop order or to remove it if
entered;
(g) make
available for inspection by any selling Holder of Registrable Securities, any
sole or lead managing underwriter participating in any disposition pursuant
to
such Registration Statement, Holders’ counsel and any attorney, accountant or
other agent retained by any such seller or any underwriter (each, an
“Inspector” and, collectively, the
“Inspectors”), all financial and other records, pertinent
corporate documents and properties of the MLP and any subsidiaries thereof
as
may be in existence at such time as shall be necessary, in the opinion of such
Holders’ and such underwriters’ respective counsel, to enable them to exercise
their due diligence responsibility and to conduct a reasonable investigation
within the meaning of the Securities Act, and cause the MLP’s and any
subsidiaries’ officers, directors and employees, and the independent public
accountants of the MLP, to supply all information reasonably requested by any
such Inspectors in connection with such Registration Statement;
(h) if
requested by the Majority Holders of the Registration, obtain an opinion from
the MLP’s counsel and a “cold comfort” letter from the MLP’s independent public
accountants who have certified the MLP’s financial statements included or
incorporated by reference in such Registration Statement, in each case dated
the
effective date of such Registration Statement (and if such registration involves
an Underwritten Offering, dated the date of the closing under the underwriting
agreement), in customary form and covering such matters as are customarily
covered by such opinions and “cold comfort” letters delivered to underwriters in
underwritten public offerings, which opinion and letter shall be reasonably
satisfactory to the sole or lead managing underwriter, if any, and to the
Majority Holders of the Registration, and furnish to each Holder participating
in the offering and to each underwriter, if any, a copy of such opinion and
letter addressed to such Holder (in the case of the opinion) and underwriter
(in
the case of the opinion and the “cold comfort” letter);
(i) provide
a CUSIP number for all Registrable Securities and provide and cause to be
maintained a transfer agent and registrar for all such Registrable Securities
covered by such Registration Statement not later than the effectiveness of
such
Registration Statement;
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(j) otherwise
use its best efforts to comply with all applicable rules and regulations of
the
Commission and any other governmental agency or authority having jurisdiction
over the offering, and make available to its security holders, as soon as
reasonably practicable but not later than 90 days after the end of any 12-month
period, an earnings statement (i) commencing at the end of any month in
which Registrable Securities are sold to underwriters in an Underwritten
Offering and (ii) commencing with the first day of the MLP’s calendar month
next succeeding each sale of Registrable Securities after the effective date
of
a Registration Statement, which statement shall cover such 12-month periods,
in
a manner which satisfies the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder;
(k) if
so requested by the Majority Holders of the Registration, use its best efforts
to cause all such Registrable Securities to be listed on each National
Securities Exchange on which the MLP’s securities are then listed or proposed to
be listed;
(l) keep
each selling Holder of Registrable Securities advised in writing as to the
initiation and progress of any registration under Article 2
hereunder;
(m) enter
into and perform customary agreements (including, if applicable, an underwriting
agreement in customary form) and provide officers’ certificates and other
customary closing documents;
(n) cooperate
with each selling Holder of Registrable Securities and each underwriter
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with
the
NASD and make reasonably available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into account the
needs
of the MLP’s businesses and the requirements of the marketing process) in the
marketing of Registrable Securities in any Underwritten Offering;
(o) furnish
to each Holder participating in the offering and the sole or lead managing
underwriter, if any, without charge, a least one manually-signed copy of the
Registration Statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those deemed to be incorporated by
reference);
(p) cooperate
with the selling Holders of Registrable Securities and the sole or lead managing
underwriter, if any, to facilitate the timely preparation and delivery of
certificates not bearing any restrictive legends representing the Registrable
Securities to be sold, and cause such Registrable Securities to be issued in
such denominations and registered in such names in accordance with the
underwriting agreement prior to any sale of Registrable Securities to the
underwriters or, if not an Underwritten Offering, in accordance with the
instructions of the selling Holders of Registrable Securities at least three
(3)
business days prior to any sale of Registrable Securities;
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(q) if
requested by the sole or lead managing underwriter or any selling Holder of
Registrable Securities, immediately incorporate in a prospectus supplement,
Issuer Free Writing Prospectus or post-effective amendment such information
concerning such Holder of Registrable Securities, the underwriters or the
intended method of distribution as the sole or lead managing underwriter or
the
selling Holder of Registrable Securities reasonably requests to be included
therein and as is appropriate in the reasonable judgment of the MLP, including,
without limitation, information with respect to the number of shares of the
Registrable Securities being sold to the underwriters, the purchase price being
paid therefor by such underwriters and with respect to any other terms of the
Underwritten Offering of the Registrable Securities to be sold in such offering;
make all required filings of such Prospectus supplement, Issuer Free Writing
Prospectus or post-effective amendment as soon as notified of the matters to
be
incorporated in such Prospectus supplement, Issuer Free Writing Prospectus
or
post-effective amendment; and supplement or make amendments to any Registration
Statement if requested by the sole or lead managing underwriter of such
Registrable Securities; and
(r) use
its best efforts to take all other steps necessary to expedite or facilitate
the
registration and disposition of the Registrable Securities contemplated
hereby.
3.2 Seller
Information.
The
MLP
may require each selling Holder of Registrable Securities as to which any
registration is being effected to furnish to the MLP such information regarding
such Holder, such Holder’s Registrable Securities and such Holder’s intended
method of disposition as the MLP may from time to time reasonably request in
writing; provided that such information shall be requested and used only in
connection with such registration.
If
any
Registration Statement or comparable statement under blue sky laws refers to
any
Holder by name or otherwise as the Holder of any securities of the MLP, then
such Holder shall have the right to require (i) the insertion therein of
language, in form and substance satisfactory to such Holder and the MLP, to
the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the MLP’s
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the MLP, and
(ii) in the event that such reference to such Holder by name or otherwise
is not in the judgment of the MLP, as advised by counsel, required by the
Securities Act or any similar federal statute or any state blue sky or
securities law then in force, the deletion of the reference to such
Holder.
3.3 Notice
to Discontinue.
Each
holder of Registrable Securities agrees that, upon receipt of any notice from
the MLP of the happening of any event of the kind described in
Section 3.1(f) through (vii), such Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such Holder’s
receipt of the copies of the supplemented or amended prospectus contemplated
by
Section 3.1(f) and, if so directed by the MLP, such Holder
shall deliver to the MLP (at the MLP’s expense) all copies, other than permanent
file copies, then in such Holder’s possession of the Prospectus or any Issuer
Free Writing Prospectus covering such Registrable Securities which is current
at
the time of receipt of such notice. If the MLP shall give any such
notice, the MLP shall extend the period during which such Registration Statement
shall be maintained effective pursuant to this Agreement (including, without
limitation, the period referred to in Section 3.1(b)) by the
number of days during the period from and including the date of the giving
of
such notice pursuant to Section 3.1(f) to and including the
date when the Holder shall have received the copies of the supplemented or
amended prospectus contemplated by and meeting the requirements of
Section 3.1(f).
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ARTICLE
4
REGISTRATION
EXPENSES
All
reasonable expenses incident to the MLP’s performance of or compliance with this
Agreement, including, but not limited to, (i) all registration, filing and
listing fees of the National Association of Securities Dealers, Inc.;
(ii) all registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws; (iii) all word processing,
duplicating, printing, messenger and delivery expenses; (iv) the reasonable
fees and disbursements of counsel for the MLP and of its independent registered
public accountants, including, without limitation, the expenses of any “comfort
letters” required by or incident to such performance and compliance;
(v) any reasonable fees and disbursements of underwriters customarily paid
by issuers or sellers of securities (but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to securities being sold by
any
Holder or that are otherwise not being sold or disposed of by the MLP),
including, without limitation, reasonable fees and disbursements of counsel
for
the underwriter(s) in connection with blue sky qualifications of the Registrable
Securities and determination of their eligibility for investment under the
laws
of such jurisdictions; and (vi) reasonable fees and expenses of other
Persons retained or employed by the MLP (all such expenses being herein called
“Registration Expenses”), shall be borne by the
MLP. In addition, the MLP shall pay its internal expenses (including,
but not limited to, all salaries and expenses of any officers and employees
of
the Partnership Group performing legal or accounting duties), the expense of
any
annual audit or quarterly review, the expense of any insurance obtained by
the
MLP against liabilities arising out of the public offering of the Registrable
Securities being registered and the expenses and fees for listing the securities
to be registered on each securities exchange.
ARTICLE
5
FREE
WRITING PROSPECTUS
Each
Holder executing this Agreement represents that it has not prepared or had
prepared on its behalf or used or referred to, and agrees that it will not
prepare or have prepared on its behalf or use or refer to, any Free Writing
Prospectus, and has not distributed and will not distribute any written
materials in connection with the offer or sale of the Registrable Securities
without the prior express written consent of the MLP and, in connection with
any
Underwritten Offering, the underwriters. Any such Free Writing
Prospectus consented to by the MLP and the underwriters, as the case may be,
is
hereinafter referred to as a “Permitted Free Writing
Prospectus.” The MLP represents and agrees that it has
treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping.
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ARTICLE
6
INDEMNIFICATION
6.1 Indemnification
by the MLP.
The
MLP
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
each Holder of Registrable Securities, its officers, directors, partners,
members, shareholders, employees, Affiliates and agents (collectively,
“Agents”) and each Person who controls such Holder (within the
meaning of the Securities Act) and its Agents with respect to each registration
which has been effected pursuant to this Agreement, against any and all losses,
claims, damages or liabilities, joint or several, actions or proceedings
(whether commenced or threatened) in respect thereof, and expenses (as incurred
or suffered and including, but not limited to, any and all expenses incurred
in
investigating, preparing or defending any litigation or proceeding, whether
commenced or threatened, and the reasonable fees, disbursements and other
charges of legal counsel) in respect thereof (collectively,
“Claims”), insofar as such Claims arise out of or are based upon
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus (including any preliminary, final or summary
prospectus), any Issuer Free Writing Prospectus and any amendment or supplement
to the foregoing related to any such registration or any omission or alleged
omission to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, or any violation by the MLP of
the
Securities Act, the Exchange Act, any state securities laws or any rule or
regulation under the foregoing applicable to the MLP and relating to action
or
inaction required of the MLP in connection with any such registration, or any
qualification or compliance incident thereto; provided, however, that the MLP
will not be liable in any such case to the extent that any such Claims arise
out
of or are based upon any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact so made in
reliance upon and in conformity with written information furnished to the MLP
in
an instrument duly executed by such Holder specifically stating that it was
expressly for use therein. The MLP shall also indemnify any
underwriters of the Registrable Securities, their Agents and each Person who
controls any such underwriter (within the meaning of the Securities Act) to
the
same extent as provided above with respect to the indemnification of the Holders
of Registrable Securities. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of any Person
who may be entitled to indemnification pursuant to this
Section 6.1 and shall survive the transfer of securities by
such Holder or underwriter.
6.2 Indemnification
by Holders.
Each
Holder, if Registrable Securities held by it are included in the securities
as
to which a registration is being effected, agrees to, severally and not jointly,
indemnify and hold harmless, to the fullest extent permitted by law, the MLP,
the General Partner, the Board and their respective officers, each other Person
who participates as an underwriter in the offering or sale of
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such
securities and its Agents and each Person who controls the MLP or any such
underwriter (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) and its Agents against any and all
Claims, insofar as such Claims arise out of or are based upon (i) any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (including any preliminary, final or
summary prospectus), any Issuer Free Writing Prospectus and any amendment or
supplement to the foregoing related to such registration, or 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, to the extent,
but
only to the extent, that such untrue statement or alleged untrue statement
or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the MLP in an instrument duly executed by
such
Holder specifically stating that it was expressly for use therein and
(ii) any Free Writing Prospectus used by such Holder without the prior
written consent of the Holder; provided, however, that the aggregate amount
which any such Holder shall be required to pay pursuant to this
Section 6.2 shall in no event be greater than the amount of
the net proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the Registration Statement giving rise to such Claims
less all amounts previously paid by such Holder with respect to any such
Claims. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such indemnified party
and shall survive the transfer of such securities by such Holder or
underwriter.
6.3 Conduct
of Indemnification Proceedings.
Promptly
after receipt by an indemnified party of notice of any Claim or the commencement
of any action or proceeding involving a Claim under this Article 6, such
indemnified party shall, if a claim in respect thereof is to be made against
the
indemnifying party pursuant to Article 6, (i) notify the
indemnifying party in writing of the Claim or the commencement of such action
or
proceeding; provided, that the failure of any indemnified party to provide
such
notice shall not relieve the indemnifying party of its obligations under this
Article 6, except to the extent the indemnifying party is materially and
actually prejudiced thereby and shall not relieve the indemnifying party from
any liability which it may have to any indemnified party otherwise than under
this Article 6, and (ii) permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the
indemnified party; provided, however, that any indemnified party shall have
the
right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of
such
indemnified party unless (A) the indemnifying party has agreed in writing
to pay such fees and expenses, (B) the indemnifying party shall have failed
to assume the defense of such claim and employ counsel reasonably satisfactory
to such indemnified party within ten (10) days after receiving notice from
such
indemnified party that the indemnified party believes it has failed to do so,
(C) in the reasonable judgment of any such indemnified party, based upon
advice of counsel, a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claims (in which case,
if
the 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 claim
on behalf of such indemnified party) or (D) such indemnified party is a
defendant in an action or proceeding which is also brought against the
indemnifying party and reasonably shall have concluded that there may be one
or
more legal defenses available to such indemnified party which are not available
to the indemnifying party.
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No
indemnifying party shall be liable for any settlement of any such claim or
action effected without its written consent, which consent shall not be
unreasonably withheld. In addition, without the consent of the
indemnified party (which consent shall not be unreasonably withheld), no
indemnifying party shall be permitted to consent to entry of any judgment with
respect to, or to the effect the settlement or compromise of any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual
or
potential party to such action or claim), unless such settlement, compromise
or
judgment (1) includes an unconditional release of the indemnified party
from all liability arising out of such action or claim, (2) does not
include a statement as to or an admission of fault, culpability or a failure
to
act, by or on behalf of any indemnified party, and (3) does not provide for
any action on the part of any party other than the payment of money damages
which is to be paid in full by the indemnifying party.
6.4 Contribution.
If
the
indemnification provided for in Sections 6.1 or 6.2
from the indemnifying party for any reason is unavailable to (other than by
reason of exceptions provided therein), or is insufficient to hold harmless,
an
indemnified party hereunder in respect of any Claim, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the
amount paid or payable by such indemnified party as a result of such Claim
in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, in connection with the actions which resulted in such Claim, as well
as
any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether any action in question, including any untrue
or
alleged untrue statement of a material fact or omission or alleged omission
to
state a material fact, has been made by, or relates to information supplied
by,
such indemnifying party or indemnified party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. If, however, the foregoing allocation is not permitted by
applicable law, then each indemnifying party shall contribute to the amount
paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations.
The
parties hereto agree that it would
not be just and equitable if contribution pursuant to this
Section 6.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by a party as a result of any
Claim referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth in Section 6.3,
any legal or other fees, costs or expenses reasonably incurred by such party
in
connection with any investigation or proceeding. Notwithstanding
anything in this Section 6.4 to the contrary, no indemnifying
party (other than the MLP) shall be required pursuant to this
Section 6.4 to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of the Registrable
Securities pursuant to the Registration Statement giving rise to such Claims,
less all amounts previously paid by such indemnifying party with respect to
such
Claims. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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6.5 Other
Indemnification.
Indemnification
similar to that specified in the preceding Sections 6.1 and
6.2 (with appropriate modifications) shall be given by
the MLP and each
selling Holder 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. The indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract.
6.6 Indemnification
Payments.
The
indemnification and contribution required by this Article 6 shall be made
by periodic payments of the amount thereof during the course of any
investigation or defense, as and when bills are received or any expense, loss,
damage or liability is incurred.
6.7 Survivability.
The obligations of the Company and Holders under this Article 6 shall survive
the completion of any offering of Registrable Securities and the termination
of
this Agreement for any reason.
6.8 Conflicting
Provisions.
Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with an underwritten offering are in conflict with the foregoing provisions,
the
provisions in the underwriting agreement shall control.
ARTICLE
7
COMPLIANCE
WITH RULE 144
With
a
view to making available the benefits of certain rules and regulations of the
Commission that may permit the sale of the Registrable Securities to the public
without registration, the MLP agrees to use its commercially reasonable efforts
to:
(a) make
and keep public information regarding the MLP available, as those terms are
understood and defined in Rule 144 of the Securities Act, at all times from
and
after the date hereof;
(b) file
with the Commission in a timely manner all reports and other documents required
of the MLP under the Securities Act and the Exchange Act at all times from
and
after the date hereof; and
(c) provide
a written statement as to the MLP’s compliance with clauses (a) and (b) above to
Holders reasonably requesting such statement in connection with such Holders’
sale of Registrable Securities to the public without registration.
-20-
ARTICLE
8
MISCELLANEOUS
8.1 Notices.
All
notices and other communications provided for or permitted hereunder shall
be
deemed to be sufficient if contained in a written instrument and shall be deemed
to have been duly given when delivered in person, by telecopy, by facsimile,
by
nationally-recognized overnight courier, or by first class registered or
certified mail, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing
by
the addressee as follows:
|
|
(i)
|
if
to the MLP, to:
|
|
|
Legacy
Reserves LP
|
|
|
000
X. Xxxx, Xxxxx 0000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Attention: Chief
Executive Officer
|
|
|
Fax
Number: (000) 000-0000
|
|
|
With
a copy to:
|
|
|
Xxxxxxx
Xxxxx LLP
|
|
|
000
Xxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxxx,
Xxxxx 00000
|
|
|
Attention: Xxxxxx
Xxxxxxxxxx
|
|
|
Fax
Number: (000) 000-0000
|
|
|
(ii)
|
If
to Xxxxxxx, to the address of Xxxxxxx set forth in the records of
the
MLP.
|
|
|
(iii)
|
If
to any subsequent Holder, to the address of such Person set forth
in the
records of the MLP.
|
All
such
notices, requests, consents and other communications shall be deemed to have
been delivered (a) in the case of personal delivery or delivery by telecopy
or facsimile, on the date of such delivery, (b) in the case of a
nationally-recognized overnight courier, on the next Business Day and
(c) in the case of mailing, on the third Business Day following such
mailing if sent by certified mail, return receipt requested.
8.2 Assignment
of Rights.
Xxxxxxx
may transfer and assign all or a portion of its rights hereunder to any (i)
of
its partners, members, shareholders or other Affiliates, or (ii) any Immediate
Family Member of the foregoing who shall acquire at least 10% of the Registrable
Securities held by the assigning Holder, to which Xxxxxxx transfers its
ownership of all or any of its Registrable Securities and any such partner,
member, shareholder or other Affiliate or Immediate Family Member may further
transfer and assign all or a portion of its rights hereunder to any of its
partners, members, shareholders or other Affiliates or Immediate Family Members
to whom it transfers its
-21-
ownership
of all or any of its Registrable Securities (collectively, the “Permitted
Transferees”); provided, that no such assignment shall be binding upon
or obligate the MLP to any such Permitted Transferee unless and until the MLP
shall have received notice of such assignment and a written agreement of such
Permitted Transferee to be bound by the provisions of this
Agreement. Except as provided above, no Holder may transfer and
assign all or any portion of its rights hereunder to any Person without the
prior written consent of the MLP that shall not be unreasonably
withheld. In no event shall the MLP be required to file a
post-effective amendment to a Registration Statement for the benefit of such
transferee(s) or assignee(s) unless the MLP agrees to do so and such Permitted
Transferee or other successor agrees in writing that it will pay all of the
additional Registration Expenses incurred by the MLP in connection with filing
a
post-effective amendment to a Registration Statement or a new Registration
Statement for the benefit of such transferee(s) or assignee(s).
8.3 Limitation
of Rights.
This
Agreement shall not be construed to vest any rights under this Agreement to
any
individual or entity other than the Holders and their Permitted
Transferees.
8.4 Recapitalization,
Exchanges, etc. Affecting the Units.
The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to any and all Units of the MLP or any successor or assign of
the
MLP (whether by merger, consolidation, sale of assets or otherwise) which may
be
issued in respect of, in exchange for or in substitution of, the Registrable
Securities, and shall be appropriately adjusted for combinations,
recapitalizations and the like occurring after the date of this
Agreement.
8.5 Specific
Performance.
Damages
in the event of breach of this Agreement by a Party hereto may be difficult,
if
not impossible, to ascertain, and it is therefore agreed that each such Person,
in addition to and without limiting any other remedy or right it may have,
will
have the right to seek an injunction or other equitable relief in any court
of
competent jurisdiction, enjoining any such breach, and enforcing specifically
the terms and provisions hereof, and each of the Parties hereto hereby waives
any and all defenses it may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or other equitable relief.
The existence of this right will not preclude any such Person from pursuing
any
other rights and remedies at law or in equity which such Person may
have.
8.6 Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
8.7 Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
-22-
8.8 Governing
Law.
The
laws of the State of Texas shall govern this Agreement without regard to
principles of conflict of laws.
8.9 Severability
of Provisions.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting or impairing the validity or enforceability
of
such provision in any other jurisdiction.
8.10 Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the Parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the Parties with respect to such subject
matter.
8.11 Amendment.
This
Agreement may be amended only by means of a written amendment signed by all
Parties to this Agreement.
8.12 No
Presumption.
In
the event any claim is made by a Party relating to any conflict, omission,
or
ambiguity in this Agreement, no presumption or burden of proof or persuasion
shall be implied by virtue of the fact that this Agreement was prepared by
or at
the request of a particular Party or its counsel.
[Signature
page follows]
-23-
IN
WITNESS WHEREOF, the undersigned have executed and delivered this Agreement
as
of the date first above set forth.
| XXXXXXX & ASSOCIATES, INC. | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxxxxxx | |
| Xxxxxx Xxxxxxxxxxx | |||
| Executive Vice President and Chief Operating Officer | |||
| LEGACY RESERVES GP, LLC | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx | |||
| President, Chief Financial Officer and Secretary | |||
|
LEGACY
RESERVES LP
By: Legacy Reserves GP, LLC, its general
partner
|
|||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx | |||
| President, Chief Financial Officer and Secretary | |||
-24-
