Exhibit 1.1
3,600,000 COMMON UNITS
ATLAS PIPELINE HOLDINGS, L.P.
REPRESENTING LIMITED PARTNER INTERESTS
UNDERWRITING AGREEMENT
_______ __, 2006
▇▇▇▇▇▇ BROTHERS INC.
As Representative of the several Underwriters
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Atlas Pipeline Holdings, L.P., a Delaware limited partnership
(the "PARTNERSHIP"), proposes to sell 3,600,000 common units (the "FIRM UNITS"),
representing limited partner interests in the Partnership (the "COMMON UNITS").
In addition, the Partnership proposes to grant to the underwriters named in
Schedule I hereto (the "UNDERWRITERS") an option to purchase up to 540,000
additional Common Units on the terms and for the purposes set forth in Section 2
(the "OPTION UNITS"). The Firm Units and the Option Units, if purchased, are
hereinafter collectively called the "UNITS."
This is to confirm the agreement among the Partnership and
Atlas Pipeline Holdings GP, LLC, a Delaware limited liability company and the
general partner of the Partnership (the "GENERAL PARTNER," and together with the
Partnership, the "ATLAS PARTIES"), and the Underwriters concerning the purchase
of the Units from the Partnership by the Underwriters.
The Partnership owns 100% of the membership interests in Atlas
Pipeline Partners GP, LLC, a Delaware limited liability company ("APL GP"),
which serves as the sole general partner of Atlas Pipeline Partners, L.P., a
publicly traded Delaware limited partnership ("APL") and the sole general
partner of Atlas Pipeline Operating Partnership, L.P., a Delaware limited
partnership (the "OPERATING PARTNERSHIP"). The Partnership is the sole limited
partner of the Operating Partnership and the sole member of APC Acquisition,
LLC, a Delaware limited liability company ("APC LLC"). APL GP owns (i) 1,641,026
common units of APL, representing approximately 12.8% of the common units of
APL, (ii) a 1.0101% general partner interest in APL, (iii) all of the incentive
distribution rights in APL and (iv) a 1.0101% general partner interest in the
Operating Partnership.
Each of Atlas Pipeline Ohio, LLC, a Pennsylvania limited
liability company ("OHIO LLC"), Atlas Pipeline Pennsylvania, LLC, a Pennsylvania
limited liability company ("PENNSYLVANIA LLC"), Atlas Pipeline New York, LLC, a
Pennsylvania limited liability company ("NEW YORK LLC"), and Atlas Pipeline
Mid-Continent, LLC, a Delaware limited liability company ("MID-CONTINENT LLC"),
is a subsidiary of the Operating Partnership. Mid-Continent LLC is the sole
member of Elk City Oklahoma GP, LLC, a Delaware limited liability company ("ELK
CITY GP"), the general partner of Elk City Oklahoma Pipeline, Ltd., a Texas
limited partnership ("ELK CITY"), the sole limited partner of Elk City and the
sole member of Atlas Arkansas Pipeline LLC, an Oklahoma limited liability
company ("ARKANSAS PIPELINE LLC"). For purposes of this Agreement, each of Ohio
LLC, Pennsylvania LLC, New York LLC, APC LLC, Mid-Continent LLC, Elk City, Elk
City GP and Arkansas Pipeline LLC is sometimes referred to herein individually
as an "APL SUBSIDIARY" and collectively, as the "APL SUBSIDIARIES."
Atlas America, Inc., a Delaware corporation ("ATLAS AMERICA")
has formed the General Partner and contributed an aggregate of $1,000 in cash to
it. The General Partner, Atlas Resources, Inc. ("RESOURCES"), AIC, Inc. ("AIC"),
Viking Resources Corporation ("VIKING"), Atlas America, Resource Energy, Inc.
("RESOURCE Energy") and REI-NY, Inc. ("REI-NY") (collectively, the "GP OWNERS")
have formed the Partnership, to which they contributed, in the aggregate, $1,000
in cash.
APL, the Operating Partnership and the APL Subsidiaries are
collectively referred to herein as the "APL PARTIES."
On [ ,] 2006, the Partnership, APL GP and the GP Owners
entered into the Contribution Agreement (the "CONTRIBUTION AGREEMENT") pursuant
to which the following transactions will occur prior to the Initial Delivery
Date (as hereinafter defined):
[To come]
It is understood and agreed to by all the parties hereto that
the Partnership was initially formed to acquire or indirectly own, as of each
Delivery Date (as hereinafter defined):
(a) 1,641,026 common units of APL, representing approximately
12.8% of the common units of APL;
(b) a 1.0101% general partner interest in APL and a 1.0101%
general partner interest in the Operating Partnership; and
(c) the incentive distribution rights in APL;
each as more particularly described in the Prospectus (as hereinafter defined)
and as acquired pursuant to the Contribution Agreement. The transactions
contemplated by the Contribution Agreement are referred to herein as the
"TRANSACTIONS."
It is further understood and agreed to by the parties hereto
that the following additional transactions will occur substantially
contemporaneously with the Initial Delivery Date:
(i) The Partnership shall have amended and restated
its agreement of limited partnership (as so amended and
restated, the "PARTNERSHIP AGREEMENT") to conform to the
description thereof set forth in the Prospectus under the
caption "DESCRIPTION OF OUR PARTNERSHIP AGREEMENT";
2
(ii) The General Partner shall have amended and
restated its limited liability company agreement of limited
partnership (as so amended and restated, the "GENERAL PARTNER
LLC AGREEMENT");
(iii) The Partnership, the General Partner, APL, APL
GP and their respective affiliates shall have entered into an
Omnibus Agreement (the "OMNIBUS AGREEMENT") consistent with
the description thereof set forth in the Prospectus under the
caption "Certain Relationships and Related Party
Transactions--Omnibus Agreement;" and
(iv) The Partnership shall enter into a $[___]
million credit facility (the "CREDIT FACILITY") with [___]
that provides for [___].
The "TRANSACTION DOCUMENTS" shall mean the Contribution Agreement, the Omnibus
Agreement and the Credit Facility. The "ORGANIZATIONAL DOCUMENTS" shall mean the
Partnership Agreement and the General Partner LLC Agreement. The "OPERATIVE
AGREEMENTS" shall mean the Transaction Documents and the Organizational
Documents collectively.
The Atlas Parties wish to confirm as follows their agreement
with you in connection with the purchase of the Units from the Partnership by
the Underwriters.
1. Representations, Warranties and Agreements of the Atlas
Parties. The Atlas Parties jointly and severally represent, warrant and agree
that:
(a) Registration; Definitions; No Stop Order. A registration
statement (Registration No. 333-130999) on Form S-1 relating to the
Units has (i) been prepared by the Partnership in conformity with the
requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and the rules and regulations (the "RULES AND REGULATIONS") of
the Securities and Exchange Commission (the "COMMISSION") thereunder;
(ii) been filed with the Commission under the Securities Act; and (iii)
become effective under the Securities Act. Copies of such registration
statement and any amendment thereto have been delivered by the
Partnership to you as the representative of the Underwriters (the
"REPRESENTATIVE"). As used in this Agreement:
(i) "APPLICABLE TIME" means [_:__ [a][p].m.] (New
York City time) on the date of this Agreement;
(ii) "EFFECTIVE DATE" means each date and time as of
which such registration statement, any post-effective
amendment or amendments thereto and any registration statement
or amendments thereto filed pursuant to Rule 462(b) relating
to the offering of the Units was or is declared effective by
the Commission;
(iii) "ISSUER FREE WRITING PROSPECTUS" means each
"free writing prospectus" (as defined in Rule 405 of the Rules
and Regulations) prepared by or on behalf of the Partnership
or used or referred to by the Partnership in connection with
the offering of the Units;
3
(iv) "PRELIMINARY PROSPECTUS" means any preliminary
prospectus relating to the Units included in such registration
statement or filed with the Commission pursuant to Rule 424(b)
of the Rules and Regulations;
(v) "PRICING DISCLOSURE PACKAGE" means, as of the
Applicable Time, the most recent Preliminary Prospectus,
together with each Issuer Free Writing Prospectus filed with
the Commission by the Partnership on or before the Applicable
Time;
(vi) "PROSPECTUS" means the final prospectus relating
to the Units, as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations; and
(vii) "REGISTRATION STATEMENT" means such
registration statement, as amended as of the Effective Date,
including any Preliminary Prospectus or the Prospectus and all
exhibits to such registration statement.
Any reference to the "MOST RECENT PRELIMINARY PROSPECTUS" shall be
deemed to refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) on or prior to
the date hereof. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending the effectiveness of the Registration Statement, and no
proceeding or examination for such purpose has been instituted or
threatened by the Commission.
(b) Partnership Not an "Ineligible Issuer." The Partnership
was not at the time of initial filing of the Registration Statement and
at the earliest time thereafter that the Partnership or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Rules and Regulations) of the Units, is not on the
date hereof and will not be on the applicable Delivery Date an
"ineligible issuer" (as defined in Rule 405).
(c) Registration Statement and Prospectus Conform to the
Requirements of the Securities Act. The Registration Statement
conformed when filed and will conform in all material respects on the
Effective Date and on the applicable Delivery Date, and any amendment
to the Registration Statement filed after the date hereof will conform
in all material respects when filed, to the requirements of the
Securities Act and the Rules and Regulations. The Preliminary
Prospectus conformed when filed, and the Prospectus will conform, in
all material respects when filed with the Commission pursuant to Rule
424(b) and on the applicable Delivery Date, to the requirements of the
Securities Act and the Rules and Regulations.
(d) No Material Misstatements or Omissions in Registration
Statement. The Registration Statement did not, as of the Effective
Date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with written
information furnished to the Partnership through the Representative by
or on behalf of any Underwriter specifically for inclusion therein,
which information is specified in Section 8(e).
4
(e) No Material Misstatements or Omissions in Prospectus. The
Prospectus will not, as of its date and on the applicable Delivery
Date, contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided
that no representation or warranty is made as to information contained
in or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Partnership through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 8(e).
(f) No Material Misstatements or Omissions in Pricing
Disclosure Package. The Pricing Disclosure Package did not, as of the
Applicable Time, contain an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading , except that the price of the Units and disclosures
directly relating thereto and derived therefrom will be included on the
cover page of the Prospectus or under the captions "The Offering,"
"Summary Historical Consolidated and Pro Forma Financial Data," "Use of
Proceeds," "Capitalization," "Dilution," "Cash Distribution Policy and
Restrictions on Distributions," "Selected Historical Financial and
Operating Data" and "Underwriting" in the Prospectus; provided that no
representation or warranty is made as to information contained in or
omitted from the Pricing Disclosure Package in reliance upon and in
conformity with written information furnished to the Partnership
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in
Section 8(e).
(g) No Material Misstatements or Omissions in Issuer Free
Writing Prospectuses. Each Issuer Free Writing Prospectus (including,
without limitation, any road show that is a free writing prospectus
under Rule 433), when considered together with the Pricing Disclosure
Package as of the Applicable Time, did not contain an untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading , except that the price of the Units and
disclosures directly relating thereto and derived therefrom will be
included on the cover page of the Prospectus or under the captions "The
Offering," "Summary Historical Consolidated and Pro Forma Financial
Data," "Use of Proceeds," "Capitalization," "Dilution," "Cash
Distribution Policy and Restrictions on Distributions," "Selected
Historical Financial and Operating Data" and "Underwriting" in the
Prospectus.
(h) Issuer Free Writing Prospectuses Conform to the
Requirements of the Securities Act. Each Issuer Free Writing Prospectus
conformed or will conform in all material respects to the requirements
of the Securities Act and the Rules and Regulations on the date of
first use, and the Partnership has complied with all prospectus
delivery and any filing requirements applicable to such Issuer Free
Writing Prospectus pursuant to the Rules and Regulations. The
Partnership has not made any offer relating to the Units that would
constitute an Issuer Free Writing Prospectus without the prior written
consent of the Representative. The Partnership has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Rules
and Regulations. The Partnership has taken all actions necessary so
that any "road show" (as defined in Rule 433 of the Rules and
Regulations) in connection with the offering of the Units will not be
required to be filed pursuant to the Rules and Regulations.
5
(i) Formation and Qualification. Each of the Atlas Parties and
the APL Parties has been duly formed and is validly existing and is in
good standing as a limited partnership or limited liability company, as
applicable, under the laws of its jurisdiction of formation and is duly
qualified to do business and in good standing as a foreign limited
partnership or foreign limited liability company, as applicable, in
each jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not, in the
aggregate, reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), results of operations,
unitholders' equity, properties, business or prospects of the
Partnership and its subsidiaries (as hereinafter defined) taken as a
whole (a "MATERIAL ADVERSE Effect"); each of the Atlas Parties and the
APL Parties has all power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged.
(j) Power and Authority to Act as a General Partner. The
General Partner has, and as of each Delivery Date will have, full
limited liability company power and authority to act as general partner
of the Partnership in all material respects as described in the
Registration Statement and Prospectus.
(k) Ownership of the General Partner. AIC owns 33.40% of the
issued and outstanding membership interests in the General Partner,
Viking owns 23.56% of the issued and outstanding membership interests
in the General Partner, Resource Energy owns 20.24% of the issued and
outstanding membership interests in the General Partner, Atlas America
owns 10.21% of the issued and outstanding membership interests in the
General Partner, REI-NY owns 6.63% of the issued and outstanding
membership interests in the General Partner, Resources owns 5.96% of
the issued and outstanding membership interests in the General Partner;
such membership interests have been duly authorized and validly issued
in accordance with the General Partner LLC Agreement and are fully paid
(to the extent required by the General Partner LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in Section 18-607 of the Delaware Limited Liability
Company Act (the "DELAWARE LLC ACT"); and the GP Owners are the only
members of the General Partner and the GP Owners own such membership
interests free and clear of all liens, encumbrances, security
interests, charges or claims.
(l) Ownership of the General Partner Interest in the
Partnership. At each Delivery Date, the General Partner will be the
sole general partner of the Partnership and will have a non-economic
general partner interest in the Partnership; such non-economic general
partner interest will be duly authorized and validly issued in
accordance with the Partnership Agreement, and the General Partner will
own such non-economic general partner interest free and clear of all
liens, encumbrances, security interests, charges or claims.
6
(m) Ownership of the Management Units. At the Initial Delivery
Date, after giving effect to the Transactions and this offering of
Units, AIC will own [_________] Common Units, representing a [___]%
limited partner interest in the Partnership, Viking will own
[_________] Common Units, representing a [___]% limited partner
interest in the Partnership, Resource Energy will own [_______] Common
Units, representing a [___]% limited partner interest in the
Partnership, Resources will own [_________] Common Units, representing
a [___]% limited partner interest in the Partnership and REI-NY will
own [_________] Common Units, representing a [___]% limited partner
interest in the Partnership. At the Initial Delivery Date, after giving
effect to the Transactions and this offering of Units, AIC, Viking,
Resource Energy, Resources and REI-NY will collectively own [_________]
Common Units, representing a [___]% limited partner interest in the
Partnership (the "MANAGEMENT UNITS"). Such limited partner interests
will be duly authorized and validly issued in accordance with the
Partnership Agreement, and AIC, Viking, Resource Energy, Resources and
REI-NY will own their respective limited partner interests free and
clear of all liens, encumbrances, security interests, charges or
claims.
(n) Ownership of APL GP by the Partnership. At each Delivery
Date, the Partnership will be the sole member of APL GP with a 100%
membership interest in APL GP; such membership interest has been duly
authorized and validly issued in accordance with the limited liability
company agreement of APL GP (the "APL GP LLC AGREEMENT"), and is fully
paid (to the extent required under APL GP LLC Agreement) and
nonassessable (except as such nonassessability may be affected by
matters described in Section 18-607 of the Delaware LLC Act); and the
Partnership owns such membership interest free and clear of all liens,
encumbrances, security interests, charges or claims.
(o) Ownership of the General Partner Interests in APL. APL GP
is the sole general partner of APL with a 1.0101% general partner
interest in APL; such general partner interest has been duly authorized
and validly issued in accordance with the Amended and Restated
Agreement of Limited Partnership of APL (the "APL LIMITED PARTNERSHIP
AGREEMENT"); and APL GP owns such general partner interest free and
clear of all liens, encumbrances, security interests, charges or
claims.
(p) Ownership of APL Common Units by APL GP. At each Delivery
Date, APL GP will own 1,641,026 APL common units representing a limited
partner interest in APL; such limited partner interest has been duly
authorized and validly issued in accordance with the APL Limited
Partnership Agreement and is fully paid (to the extent required under
the APL Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in Section 17-607
of the Delaware Revised Uniform Limited Partnership Act (the "DELAWARE
LP ACT")); and APL GP will own such limited partner interest free and
clear of all liens, encumbrances, security interests, charges or
claims.
7
(q) Ownership of the General Partner Interests in the
Operating Partnership. APL GP is the sole general partner of the
Operating Partnership with 1.0101% general partner interest in the
Operating Partnership; such general partner interest has been duly
authorized and validly issued in accordance with the Agreement of
Limited Partnership of the Operating Partnership (the "OPERATING
PARTNERSHIP AGREEMENT"); and APL GP owns such general partner interest
free and clear of all liens, encumbrances, security interests, charges
or claims.
(r) Ownership of the Limited Partner Interests in the
Operating Partnership. APL is the sole limited partner of the Operating
Partnership with a 98.9899% limited partner interest in the Operating
Partnership; such limited partner interest has been duly authorized and
validly issued in accordance with the Operating Partnership Agreement
and is fully paid (to the extent required under the Operating
Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described in Section 17-607
of the Delaware LP Act); and APL owns such limited partner interest
free and clear of all liens, encumbrances, security interests, charges
or claims.
(s) Ownership of the APL Subsidiaries.
(A) The Operating Partnership owns 100% of the membership
interests in each of Ohio LLC, Pennsylvania LLC and New
York LLC,; such membership interests have been duly
authorized and validly issued in accordance with the
applicable certificate of formation and limited liability
company agreement of each of Ohio LLC, Pennsylvania LLC
and New York LLC (collectively, the "OPERATING
AGREEMENTS"), and are fully paid (to the extent required
under the applicable Operating Agreements) and
nonassessable (except as such nonassessability may be
affected by Section 8931 of the Pennsylvania Limited
Liability Company Law of 1994, as amended); and the
Operating Partnership owns such membership interests free
and clear of all liens, encumbrances, security interests,
charges or claims;
(B) The Operating Partnership owns 100% of the membership
interests in Mid-Continent LLC; such membership interests
have been duly authorized and validly issued in accordance
with the certificate of formation and limited liability
company agreement of Mid-Continent LLC (the "Mid-Continent
Operating Agreements") and are fully paid (to the extent
required under the Mid-Continent Operating Agreements) and
nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act), as
the case may be; and the Operating Partnership owns such
membership interests free and clear of all liens,
encumbrances, security interests, charges or claims;
(C) The Partnership owns 100% of the membership interests
in APC LLC; such membership interests have been duly
authorized and validly issued in accordance with the
certificate of formation and limited liability company
agreement of APC LLC (the "APC LLC OPERATING AGREEMENTS"),
and are fully paid (to the extent required under the APC
LLC Operating Agreements) and nonassessable (except as
such nonassessability may be affected by Section 18-607 of
the Delaware LLC Act); and the Partnership owns such
membership interests free and clear of all liens,
encumbrances, security interests, charges or claims;
8
(D) Mid-Continent owns 100% of the membership interests in
Elk City GP; such membership interests have been duly
authorized and validly issued in accordance with the
certificate of formation and limited liability company
agreement of Elk City GP (the "ELK CITY GP OPERATING
AGREEMENTS"), and are fully paid (to the extent required
under the Elk City GP Operating Agreements) and
nonassessable (except as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act); and
Mid-Continent owns such membership interests free and
clear of all liens, encumbrances, security interests,
charges or claims;
(E) Mid-Continent owns 100% of the membership interests in
Arkansas Pipeline LLC; such membership interests have been
duly authorized and validly issued in accordance with the
certificate of formation and limited liability company
agreement of Arkansas Pipeline LLC (the "ARKANSAS PIPELINE
LLC OPERATING AGREEMENTS"), and are fully paid (to the
extent required under the Arkansas Pipeline LLC Operating
Agreements) and nonassessable (except as such
nonassessability may be affected by Section 18-2054.4(H)
of the Oklahoma Limited Liability Company Act); and
Mid-Continent owns such membership interests free and
clear of all liens, encumbrances, security interests,
charges or claims;
(F) Mid-Continent owns 100% of the limited partner
interests in Elk City; such limited partner interests have
been duly authorized and validly issued in accordance with
the agreement of limited partnership of Elk City (the "ELK
CITY PARTNERSHIP AGREEMENT"), and are fully paid (to the
extent required under the Elk City Partnership Agreement)
and nonassessable (except as such nonassessability may be
affected by Section 6.07 of the Texas Revised Limited
Partnership Act); and Mid-Continent owns such limited
partner interests free and clear of all liens,
encumbrances, security interests, charges or claims;
(G) Elk City GP is the sole general partner of Elk City
with a .01% general partner interest in Elk City; such
interest has been duly authorized and validly issued in
accordance with the Elk City Partnership Agreement, and
Elk City GP owns such general partner interest free and
clear of all liens, encumbrances, security interests,
charges or claims.
(t) No Other Subsidiaries. Except as disclosed above and other
than its ownership of its non-economic general partner interest in the
Partnership, the General Partner does not own, and at each Delivery
Date will not own, directly or indirectly, any equity or long-term debt
securities of any corporation, partnership, limited liability company,
joint venture, association or other entity. Other than its ownership of
(1) a 1.0101% general partner interest in APL, held through a 100%
ownership interest in APL GP; (2) a 1.0101% general partner interest in
the Operating Partnership, held through a 100% ownership interest in
APL GP; (3) 1,641,026 common units of APL, representing approximately
13.1% of the common units of APL, held through a 100% ownership
interest in APL GP; and (4) all of the incentive distribution rights in
APL, held through a 100% ownership interest in APL GP, the Partnership
does not directly own, and at each Delivery Date will not directly own,
any equity or long-term debt securities of any corporation,
partnership, limited liability company, joint venture, association or
other entity.
9
(u) Capitalization. At the Initial Delivery Date, after giving
effect to the Offering, the issued and outstanding Common Units of the
Partnership will consist of 21,100,000 Common Units (including
17,500,000 Management Units). Other than the Management Units, the
Units will be the only limited partner interests of the Partnership
issued or outstanding at each Delivery Date.
(v) Valid Issuance of the Units. At the Initial Delivery Date,
there will be issued to the Underwriters the Firm Units (assuming no
purchase by the Underwriters of Option Units on the Initial Delivery
Date); at the Initial Delivery Date or the Option Unit Delivery Date
(as defined in Section 4 hereof), as the case may be, the Firm Units or
the Option Units, as the case may be, and the limited partner interests
represented thereby, will be duly and validly authorized in accordance
with the Partnership Agreement and, when issued and delivered to the
Underwriters against payment therefor in accordance with this
Agreement, will be duly and validly issued, fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by matters described in Section
17-607 of the Delaware LP Act).
(w) No Preemptive Rights, Registration Rights or Options.
Except as identified in the most recent Preliminary Prospectus, there
are no (i) preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of any equity
securities of, any of the Atlas Parties or APL Parties; (ii) contracts,
agreements or understandings between any of the Atlas Parties or the
APL Parties and any person granting such person the right to require
the Partnership to file a registration statement under the Securities
Act with respect to any securities of the Partnership owned or to be
owned by such person or to require the Partnership to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Partnership under the Securities
Act or (iii) outstanding options or warrants to purchase any securities
of any of the Atlas Parties or the APL Parties.
(x) Authority and Authorization. The Partnership has all
requisite partnership power and authority to issue, sell and deliver
(i) the Units, in accordance with and upon the terms and conditions set
forth in this Agreement and the Partnership Agreement and (ii) the
Management Units, in accordance with and upon the terms and conditions
set forth in the Partnership Agreement and the Contribution Agreement.
At each Delivery Date, all corporate, partnership and limited liability
company action, as the case may be, required to be taken by any of the
Atlas Parties or the APL Parties or any of their respective
unitholders, stockholders, members or partners for the authorization,
issuance, sale and delivery of the Units and the Management Units, the
execution and delivery of the Operative Agreements and the consummation
of the transactions (including the Transactions) contemplated by this
Agreement and the Operative Agreements, shall have been validly taken.
10
(y) Authorization, Execution and Delivery of this Agreement.
This Agreement has been duly authorized and validly executed and
delivered by each of the Atlas Parties.
(z) Authorization, Execution, Delivery and Enforceability of
Certain Agreements. At or before the Initial Delivery Date:
1. each Transaction Document will have been duly
authorized, executed and delivered by the parties
thereto and each will be a valid and legally binding
agreement of the parties thereto, enforceable
against such parties in accordance with its terms;
2. the Partnership Agreement will have been duly
authorized, executed and delivered by the General
Partner and will be a valid and legally binding
agreement of the General Partner, enforceable
against the General Partner in accordance with its
terms; and
3. the General Partner LLC Agreement will have been
duly authorized, executed and delivered by Atlas
America and will be a valid and legally binding
agreement of Atlas America, enforceable against
Atlas America in accordance with its terms;
provided that, with respect to each agreement described in this Section
1(z), the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); provided further;
that the indemnity, contribution and exoneration provisions contained
in any of such agreements may be limited by applicable laws and public
policy.
(aa) Authorization, Execution and Enforceability of Certain
Agreements. As of each Delivery Date:
(i) the APL GP LLC Agreement has been duly
authorized, executed and delivered by the Partnership as the
sole member of APL GP, and is a valid and legally binding
agreement of the Partnership, enforceable against the
Partnership in accordance with its terms;
(ii) the APL Limited Partnership Agreement has been
duly authorized, executed and delivered by APL GP and is a
valid and legally binding agreement of APL GP, enforceable
against APL GP in accordance with its terms; and
11
(iii) the Operating Partnership Agreement has been
duly authorized, executed and delivered by each of APL GP and
APL, and is a valid and legally binding agreement of each of
them, enforceable against each of them in accordance with its
terms;
provided that, with respect to each agreement described in this Section
1(aa), the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); provided further;
that the indemnity, contribution and exoneration provisions contained
in any of such agreements may be limited by applicable laws and public
policy.
(bb) Sufficiency of the Contribution Agreement. The
Contribution Agreement will be legally sufficient to transfer or convey
to the Partnership all interests in APL GP as contemplated by the most
recent Preliminary Prospectus and the Prospectus, subject to the
conditions, reservations and limitations contained in the Contribution
Agreement and those set forth in the most recent Preliminary Prospectus
and the Prospectus.
(cc) No Conflicts. None of the (i) offering, issuance or sale
by the Partnership of the Units, (ii) the execution, delivery and
performance of this Agreement by the Atlas Parties and the Operative
Agreements by the Atlas Parties and APL Parties that are parties
thereto or (iii) the consummation of any other transactions
contemplated by this Agreement or the Operative Agreements (including
the Transactions) or the fulfillment of the terms hereof or thereof,
conflict with or will conflict with, result in a breach or violation
of, or a default (or an event that, with notice or lapse of time or
both, would constitute such a default) under, or imposition of any
lien, charge or encumbrance upon any property or assets of any of the
Atlas Parties or the APL Parties pursuant to (i) the certificate of
limited partnership or agreement of limited partnership, certificate of
formation or limited liability company agreement, the charter or
bylaws, or any other organizational documents of any of the Atlas
Parties or APL Parties, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which any
of the Atlas Parties or APL Parties is a party or by which any of them
are bound or to which any of their respective properties is subject or
(iii) any statute, law, rule or regulation, or any judgment, order or
decrees of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over any of the Atlas Parties or APL Parties or any of their properties
or assets, except, in the case of clauses (ii) and (iii), for such
conflicts, breaches, violations, defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, have a
Material Adverse Effect.
(dd) No Default. None of the Atlas Parties or the APL Parties
(i) is in violation of its certificate of limited partnership or
agreement of limited partnership, certificate of formation or limited
liability company agreement or other organizational or governing
documents; (ii) is in breach or default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would
constitute such a breach or default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject, (iii) is in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or (iv) has failed to obtain any material license, permit,
certificate, franchise or other governmental or regulatory
authorization or permit necessary to the ownership or leasing of its
property or to the conduct of its business, except in the case of
clauses (ii) and (iv) as would not have a material adverse effect on
the condition (financial or other), business, assets, results of
operations of the Atlas Parties, taken as a whole.
12
(ee) No Consents. No permit, consent, approval, certificate,
authorization or order of any person, court, governmental agency or
body is required in connection with the execution, delivery and
performance of, or the consummation by any of the Atlas Parties of the
Transactions contemplated by this Agreement except (i) such permits,
consents, approvals and similar authorizations required under the
Securities Act, the Exchange Act and state securities or "Blue Sky"
laws, (ii) such permits, consents, approvals, certificates and similar
authorizations which have been, or prior to the Delivery Date will be,
obtained and (iii) such permits, consents, approvals, certificates and
similar authorizations which, if not obtained, would not, individually
or in the aggregate, have a Material Adverse Effect.
(ff) Conformity of Units to Description in the Most Recent
Preliminary Prospectus. The Units, when issued and delivered in
accordance with the terms of the Partnership Agreement and this
Agreement against payment therefor as provided therein and herein, will
conform in all material respects to the description thereof contained
in the most recent Preliminary Prospectus.
(gg) No Integration. The Partnership has not sold or issued
any securities that would be integrated with the offering of the Units
contemplated by this Agreement pursuant to the Securities Act, the
Rules and Regulations or the interpretations thereof by the Commission.
(hh) No Adverse Change. None of the Atlas Parties or the APL
Parties has sustained, since the date of the latest audited financial
statements included in the most recent Preliminary Prospectus, any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, and since
such date, there has not been any change in the capitalization or
long-term debt of any of the Atlas Parties or the APL Parties or any
adverse change, or any development involving a prospective adverse
change, in or affecting the condition (financial or otherwise), results
of operations, unitholders' equity, properties, management, business or
prospects of any of the Atlas Parties or the APL Parties taken as a
whole, in each case except as would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect. Since the date of the
latest audited financial statements included in the Prospectus, none of
the Atlas Parties or the APL Parties has incurred any liability or
obligation, direct, indirect or contingent, or entered into any
transactions, not in the ordinary course of business, that,
individually or in the aggregate, is material to the Atlas Parties or
the APL Parties, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
13
(ii) Conduct of Business. Since the date as of which
information is given in the most recent Preliminary Prospectus, none of
the Atlas Parties or the APL Parties have (i) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations that were incurred in the ordinary course of business, (ii)
entered into any material transaction not in the ordinary course of
business or (iii) declared, paid or made any dividend or distribution
on any class of security.
(jj) Financial Statements. The historical financial statements
(including the related notes and supporting schedules) included in the
most recent Preliminary Prospectus (or any amendment or supplement
thereto) comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and present
fairly in all material respects the financial condition, results of
operations and cash flows of the entities purported to be shown thereby
at the dates and for the periods indicated and have been prepared in
conformity with accounting principles generally accepted in the United
States applied on a consistent basis throughout the periods involved.
The summary historical consolidated and pro forma financial data
included in the most recent Preliminary Prospectus (and any amendment
or supplement thereto) under the caption "Summary--Summary Historical
Consolidated and Pro Forma Financial Data" and the selected historical
and operating data set forth under the caption "Selected Historical and
Operating Data" is accurately presented in all material respects and
prepared on a basis consistent with the audited and unaudited
historical financial statements and pro forma financial statements, as
applicable, from which it has been derived.
(kk) Pro Forma Financial Statements. The pro forma financial
statements included in the most recent Preliminary Prospectus (and any
amendment or supplement thereto) comply as to form in all material
respects with the applicable requirements of Regulation S-X and have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
computed on the bases described therein. The assumptions used in the
preparation of such pro forma financial statements are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. The other historical
financial and statistical information and data included in the most
recent Preliminary Prospectus are, in all material respects, fairly
presented.
(ll) Statistical and Market-Related Data. The statistical and
market-related data included under the captions "Business" and
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" in the most recent Preliminary Prospectus and
the consolidated financial statements of the Partnership, the General
Partner and APL GP and their respective subsidiaries included in the
most recent Preliminary Prospectus are based on or derived from sources
that the Atlas Parties believe to be reliable and accurate in all
material respects and the Partnership has obtained the written consent
to the use of such data from such sources to the extent required.
14
(mm) Independent Public Accountants.
(A) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain
financial statements of the General Partner, the
Partnership and APL GP, and their respective consolidated
subsidiaries, whose report appears in the most recent
Preliminary Prospectus and the Prospectus and who have
delivered the initial letter referred to in Section 7(g))
hereof, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(B) Ernst & Young LLP, who have certified certain
financial statements of Enogex Arkansas Pipeline
Corporation, ETC Oklahoma Pipeline, Ltd., the Elk City
System (a division of Aquila Gas Processing Corporation)
and Spectrum Field Services, Inc., whose report appears
in the most recent Preliminary Prospectus and the
Prospectus and who have delivered the initial letter
referred to in Section 7(g)) hereof, are independent
public accountants as required by the Securities Act and
the Rules and Regulations.
(nn) Title to Properties. At each Delivery Date, each of the
Atlas Parties and APL Parties will have (A) good and marketable title
to all of the properties and assets described in the most recent
Preliminary Prospectus as owned by it, free and clear of all liens,
claims, security interests, charges, encumbrances, defects and
restrictions (except for (i) taxes not yet payable, (ii) as described
in the most recent Preliminary Prospectus and the financial statements
included therein and (iii) such liens, charges, encumbrances and
restrictions as do not detract from the value thereof and do not
materially interfere with the use thereof taken as a whole as such
properties and assets have been used in the past and are proposed to be
used in the future). All assets held under lease or license by any
Atlas Party or APL Party are held under valid, subsisting and
enforceable leases or licenses, with such exceptions (i) as are not
material and do not interfere with the use made and proposed to be made
of such assets as they have been used as described in the most recent
Preliminary Prospectus or (ii) that would not have a material adverse
effect on the condition (financial or other), business, prospects,
properties, securityholders' equity or results of operations of the
Atlas Parties, taken as a whole.
(oo) Rights-of Way. At each Delivery Date, each of the Atlas
Parties and APL Parties will have such consents, easements,
rights-of-way, permits or licenses from each person (collectively,
"RIGHTS-OF-WAY") as are necessary to conduct its business in the manner
described, and subject to the limitations contained, in the most recent
Preliminary Prospectus, except for (i) qualifications, reservations and
encumbrances as may be set forth in the most recent Preliminary
Prospectus which are not reasonably expected to have a material adverse
effect upon the ability of the Atlas Parties and the APL Parties, taken
as a whole, to conduct their businesses in all material respects as
currently conducted and as contemplated by the most recent Preliminary
Prospectus to be conducted, and (ii) such rights-of-way the absence of
which would not, individually or in the aggregate, result in a Material
Adverse Effect; other than as set forth in the most recent Preliminary
Prospectus, each of the Atlas Parties and APL Parties has fulfilled and
performed all its material obligations with respect to such
rights-of-way and no event has occurred that allows, or after notice or
lapse of time would allow, revocation or termination thereof or would
result in any impairment of the rights of the holder of any such
rights-of-way, except for such revocations, terminations and
impairments that would not (x) have a material adverse effect upon the
ability of the Atlas Parties and the APL Parties, taken as a whole, to
conduct their businesses in all material respects as currently
conducted and as contemplated by the most recent Preliminary Prospectus
to be conducted or (y) individually or in the aggregate, result in a
Material Adverse Effect; and, except as described in the most recent
Preliminary Prospectus, none of such rights-of-way contains any
restriction that is materially burdensome to the Atlas Parties or the
APL Parties considered as a whole.
15
(pp) Insurance. Each of the Atlas Parties and APL Parties
carry, or are covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of their respective businesses and
the value of their respective properties and as is customary for
businesses engaged in similar businesses in similar industries, and
none of the Atlas Parties or APL Parties has received notice of
cancellation or non-renewal of such insurance.
(qq) Investment Company. None of the Atlas Parties or the APL
Parties is, and as of the applicable Delivery Date and, after giving
effect to the offer and sale of the Units and the application of the
proceeds therefrom as described under "Use of Proceeds" in the most
recent Preliminary Prospectus and the Prospectus, none of them will be,
an "investment company" or a company "controlled by" an "investment
company" within the meaning of such term under the Investment Company
Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), and the rules
and regulations of the Commission thereunder.
(rr) Litigation. Except as described in the most recent
Preliminary Prospectus, there is (i) no action, suit or proceeding
before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of the
Atlas Parties, threatened, to which any of the Atlas Parties or the APL
Parties is or may be a party or to which the business or property of
any of the Atlas Parties or the APL Parties is or may be subject, (ii)
no statute, rule, regulation or order that has been enacted, adopted or
issued by any governmental agency and (iii) no injunction, restraining
order or order of any nature issued by a federal or state court or
foreign court of competent jurisdiction to which any of the Atlas
Parties or the APL Parties is or may be subject, that, in the case of
clauses (i), (ii) and (iii) above, is reasonably expected to (A) singly
or in the aggregate have a Material Adverse Effect, (B) prevent or
result in the suspension of the offering and issuance of the Units, or
(C) in any manner draw into question the validity of this Agreement.
(ss) Legal Proceedings or Contracts to be Described or Filed.
There are no legal or governmental proceedings or contracts or other
documents of a character required to be described in the Registration
Statement or the most recent Preliminary Prospectus or, in the case of
documents, to be filed as exhibits to the Registration Statement, that
are not described and filed as required. None of the Atlas Parties or
the APL Parties has knowledge that any other party to any such
contract, agreement or arrangement has any intention not to render full
performance as contemplated by the terms thereof; and that statements
made in the most recent Preliminary Prospectus under the captions
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Business" insofar as they purport to
constitute summaries of the terms of statutes, rules or regulations,
legal or governmental proceedings or contracts and other documents,
constitute accurate summaries of the terms of such statutes, rules and
regulations, legal and governmental proceedings and contracts and other
documents in all material respects.
16
(tt) Certain Relationships and Related Transactions. Except as
described in the most recent Preliminary Prospectus, no relationship,
direct or indirect, exists between or among any of the Atlas Parties or
the APL Parties, on the one hand, and the directors, officers,
unitholders, customers or suppliers of any of the Atlas Parties or the
APL Parties, on the other hand, that is required to be described in the
most recent Preliminary Prospectus or the Prospectus which is not so
described.
(uu) No Labor Dispute. No labor disturbance by the employees
of any of the Atlas Parties or the APL Parties exists or, to the
knowledge of the Atlas Parties, is imminent that could reasonably be
expected to have a Material Adverse Effect.
(vv) ERISA. Each Atlas Party and APL Party is in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which any Atlas Party or
APL Party would have any liability; no Atlas Party or APL Party has
incurred nor does either expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "CODE"); each "pension plan" for which
any Atlas Party or APL Party would have any liability that is intended
to be qualified under Section 401(a) of the Code has been determined by
the Internal Revenue Service to be so qualified and nothing has
occurred, whether by action or by failure to act, which could
reasonably be expected to cause the loss of such qualification; and no
Atlas Party or APL Party has incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than for payment of
premiums in the ordinary course of business).
(ww) Tax Returns. Each of the Atlas Parties and APL Parties
has filed (or has obtained extensions with respect to) all tax returns
required to be filed through the date hereof, which returns are
complete and correct in all material respects, and has paid all taxes
shown to be due pursuant to such returns, other than those (i) which,
if not paid, would not have a material adverse effect on the condition
(financial or other), business, prospects, properties, securityholders'
equity or results of operations of the Atlas Parties and APL Parties
considered as a whole, or (ii) which are being contested in good faith.
No tax deficiency has been determined adversely to any Atlas Party or
APL Party which has had (nor does any Atlas Party or APL Party have any
knowledge of any tax deficiency which, if determined adversely to any
Atlas Party or APL Party, might have) a material adverse effect on the
consolidated (financial or other), business, prospects, properties,
securityholders' equity or results of operations of the Atlas Parties
and APL Parties considered as a whole.
17
(xx) Books and Records; Accounting Controls. Each of the Atlas
Parties and APL Parties (i) makes and keeps books, records and
accounts, which, in reasonable detail, accurately and fairly reflect
the transactions and dispositions of assets and (ii) maintains systems
of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(yy) Disclosure Controls and Procedures. (i) Each of the Atlas
Parties and APL Parties has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 under
the Exchange Act), (ii) such disclosure controls and procedures are
designed to ensure that the information required to be disclosed by the
Atlas Parties and APL Parties in the reports they file or will file or
submit under the Securities Exchange Act of 1934, as amended, as
applicable, is accumulated and communicated to management of the Atlas
Parties and APL Parties, as applicable, including their respective
principal executive officers and principal financial officers, as
appropriate, to allow timely decisions regarding required disclosure to
be made and (iii) such disclosure controls and procedures are effective
in all material respects to perform the functions for which they were
established.
(zz) No Changes in Internal Controls. None of the Atlas
Parties or the APL Parties has been advised of (A) any significant
deficiencies in the design or operation of internal controls that could
adversely affect the ability of the Atlas Parties or the APL Parties to
record, process, summarize and report financial data, or any material
weaknesses in internal controls or (B) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the internal controls of any of the Atlas Parties
or the APL Parties, and since that date, there have been no significant
changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses.
(aaa) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. There is and has been no
failure on the part of any of the Atlas Parties or the APL Parties or
any of their respective directors or officers, in their capacities as
such, to comply with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and the rules and regulations promulgated in connection therewith.
(bbb) Permits. Each of the Atlas Parties and APL Parties has
such consents, licenses, franchises and certificates of governmental or
regulatory authorities ("PERMITS") as are necessary to own or lease its
properties and to conduct its business in the manner described in the
most recent Preliminary Prospectus, subject to such qualifications as
may be set forth in the most recent Preliminary Prospectus and except
for such permits that, if not obtained, would not have, individually or
in the aggregate, a Material Adverse Effect and except for such permits
that are of a routine or administrative nature and that are expected in
the reasonable judgment of the General Partner to be obtained, as
necessary, in the ordinary course of business subsequent to the date
hereof; each of the Atlas Parties and APL Parties has fulfilled and
performed all its material obligations with respect to such permits and
no event has occurred that would prevent such permits from being
renewed or reissued or that allows, or after notice or lapse of time
would allow, revocation or termination thereof or results or would
result in any impairment of the rights of the holder of any such
permit, except for such non-renewals, non-issues, revocations,
terminations and impairments that would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, prospects, properties, securityholders' equity or
results of operations of the Atlas Parties considered as a whole.
18
(ccc) Environmental Compliance. The Atlas Parties and the APL
Parties are (i) in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or releases of hazardous
or toxic substances or wastes, pollutants or contaminants, except where
such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not
individually or in the aggregate, have a Material Adverse Effect,
except as set forth in or contemplated in the most recent Preliminary
Prospectus. None of the Atlas Parties or the APL Parties has been named
as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended.
(ddd) No Distribution of Other Offering Materials. None of the
Atlas Parties or the APL Parties has distributed and, prior to the
later to occur of any Delivery Date and completion of the distribution
of the Units, will distribute any offering material in connection with
the offering and sale of the Units other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which
the Representative has consented in accordance with Section 1(h) or
5(a)(v) or as set forth on Schedule [ ] hereto.
(eee) Market Stabilization. The Partnership has not taken and
will not take, directly or indirectly, any action designed to or that
has constituted or that could reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of
the Partnership or APL to facilitate the sale or resale of the Units.
19
(fff) Listing on the New York Stock Exchange. The Units have
been approved, subject to official notice of issuance, to be listed on
the New York Stock Exchange.
Any certificate signed by any officer of the Atlas Parties and
delivered to the Representative or counsel for the Underwriters in connection
with the offering of the Units shall be deemed a representation and warranty by
such entity, as to matters covered thereby, to each Underwriter.
2. Purchase of the Units by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Partnership agrees to sell the Firm Units to
the several Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase the number of Firm Units set forth opposite that
Underwriter's name in Schedule I hereto. The respective purchase obligations of
the Underwriters with respect to the Firm Units shall be rounded among the
Underwriters to avoid fractional units, as the Representative may determine.
In addition, the Partnership grants to the Underwriters an
option to purchase up to 540,000 Option Units. Such option is exercisable in the
event that the Underwriters sell more Common Units than the number of Firm Units
in the offering and as set forth in Section 4 hereof. Each Underwriter agrees,
severally and not jointly, to purchase the number of Option Units (subject to
such adjustments to eliminate fractional units as the Representative may
determine) that bears the same proportion to the total number of Option Units to
be sold on such Delivery Date as the number of Firm Units set forth in Schedule
I hereto opposite the name of such Underwriter bears to the total number of Firm
Units.
The price of both the Firm Units and any Option Units
purchased by the Underwriters shall be $[_._] per unit.
The Partnership shall not be obligated to deliver any of the
Firm Units or Option Units to be delivered on the applicable Delivery Date,
except upon payment for all such Units to be purchased on such Delivery Date as
provided herein.
3. Offering of Units by the Underwriters. Upon authorization
by the Representative of the release of the Firm Units, the several Underwriters
propose to offer the Firm Units for sale upon the terms and conditions to be set
forth in the Prospectus.
4. Delivery of and Payment for the Units. Delivery of and
payment for the Firm Units shall be made at 10:00 A.M., New York City time, on
the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representative and the Partnership. This date and time are sometimes referred to
as the "INITIAL DELIVERY DATE." Delivery of the Firm Units shall be made to the
Representative for the account of each Underwriter against payment by the
several Underwriters through the Representative and of the respective aggregate
purchase prices of the Firm Units being sold by the Partnership to or upon the
order of the Partnership of the purchase price by wire transfer in immediately
available funds to the accounts specified by the Partnership. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. The Partnership shall deliver the Firm Units through the facilities
of the Depository Trust Company unless the Representative shall otherwise
instruct.
20
The option granted in Section 2 will expire 30 days after the
date of this Agreement and may be exercised in whole or from time to time in
part by written notice being given to the Partnership by the Representative;
provided that if such date falls on a day that is not a business day, the option
granted in Section 2 will expire on the next succeeding business day. Such
notice shall set forth the aggregate number of Option Units as to which the
option is being exercised, the names in which the Option Units are to be
registered, the denominations in which the Option Units are to be issued and the
date and time, as determined by the Representative, when the Option Units are to
be delivered; provided, however, that this date and time shall not be earlier
than the Initial Delivery Date nor earlier than the second business day after
the date on which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised. Each
date and time the Option Units are delivered is sometimes referred to as an
"OPTION UNIT DELIVERY DATE," and the Initial Delivery Date and any Option Unit
Delivery Date are sometimes each referred to as a "DELIVERY DATE."
Delivery of the Option Units by the Partnership and payment
for the Option Units by the several Underwriters through the Representative
shall be made at 10:00 A.M., New York City time, on the date specified in the
corresponding notice described in the preceding paragraph or at such other date
or place as shall be determined by agreement between the Representative and the
Partnership. On the Option Unit Delivery Date, the Partnership shall deliver or
cause to be delivered the Option Units to the Representative for the account of
each Underwriter against payment by the several Underwriters through the
Representative and of the respective aggregate purchase prices of the Option
Units being sold by the Partnership to or upon the order of the Partnership of
the purchase price by wire transfer in immediately available funds to the
accounts specified by the Partnership. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. The Partnership shall
deliver the Option Units through the facilities of the Depository Trust Company
unless the Representative shall otherwise instruct.
5. Further Agreements of the Atlas Parties. (a) (a) Each of
the Atlas Parties, jointly and severally, covenants and agrees to cause the
Partnership:
(i) Preparation of Prospectus and Registration Statement. To
prepare the Prospectus in a form approved by the Representative and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement; to
make no further amendment or any supplement to the Registration
Statement or the Prospectus prior to the last Delivery Date except as
provided herein; to advise the Representative, promptly after it
receives notice thereof, of the time when any amendment or supplement
to the Registration Statement or the Prospectus has been filed and to
furnish the Representative with copies thereof; to advise the
Representative, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing
or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus, of the suspension of the qualification of the Units for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding or examination for any such purpose or of any request
by the Commission for the amending or supplementing of the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
21
(ii) Signed Copies of Registration Statement. To furnish
promptly to the Representative and to counsel for the Underwriters a
signed copy of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(iii) Copies of Documents to Underwriters. To deliver promptly
to the Representative such number of the following documents as the
Representative shall reasonably request: (A) conformed copies of the
Registration Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per unit earnings), (B) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus and (C) each Issuer Free Writing Prospectus; and, if the
delivery of a prospectus is required at any time after the date hereof
in connection with the offering or sale of the Units or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify the
Representative and, upon its request, to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representative may from time
to time reasonably request of an amended or supplemented Prospectus
that will correct such statement or omission or effect such compliance;
(iv) Filing of Amendment or Supplement. To file promptly with
the Commission any amendment or supplement to the Registration
Statement or the Prospectus that may, in the judgment of the
Partnership or the Representative, be required by the Securities Act or
requested by the Commission; prior to filing with the Commission any
amendment or supplement to the Registration Statement or to the
Prospectus, to furnish a copy thereof to the Representative and counsel
for the Underwriters and obtain the consent of the Representative to
the filing;
(v) Issuer Free Writing Prospectus. Not to make any offer
relating to the Units that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Representative; to
retain in accordance with the Rules and Regulations all Issuer Free
Writing Prospectuses not required to be filed pursuant to the Rules and
Regulations; and if at any time after the date hereof any events shall
have occurred as a result of which any Issuer Free Writing Prospectus,
as then amended or supplemented, would conflict with the information in
the Registration Statement, the most recent Preliminary Prospectus or
the Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement any Issuer Free Writing Prospectus, to
notify the Representative and, upon its request, to file such document
and to prepare and furnish without charge to each Underwriter as many
copies as the Representative may from time to time reasonably request
of an amended or supplemented Issuer Free Writing Prospectus that will
correct such conflict, statement or omission or effect such compliance;
22
(vi) Reports to Security Holders. As soon as practicable after
the Effective Date (it being understood that the Partnership shall have
until at least 410 or, if the fourth quarter following the fiscal
quarter that includes the Effective Date is the last fiscal quarter of
the Partnership's fiscal year, 455 days after the end of the
Partnership's current fiscal quarter), to make generally available to
the Partnership's security holders and to deliver to the Representative
an earnings statement of the Partnership and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the
Partnership, Rule 158);
(vii) Qualifications. Promptly from time to time to take such
action as the Representative may reasonably request to qualify the
Units for offering and sale under the securities laws of such
jurisdictions as the Representative may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Units; provided that in connection therewith the
Partnership shall not be required to (i) qualify as a foreign limited
partnership in any jurisdiction in which it would not otherwise be
required to so qualify, (ii) file a general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in
any jurisdiction in which it would not otherwise be subject;
(viii) Lock-Up Period; Lock-Up Letters. For a period
commencing on the date hereof and ending on the 180th day after the
date of the Prospectus (the "LOCK-UP PERIOD"), not to, directly or
indirectly, (1) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device that is designed to, or could
be expected to, result in the disposition by any person at any time in
the future of) any Common Units or securities convertible into or
exchangeable for Common Units (other than the Units and Common Units
issued pursuant to employee benefit plans, option plans or other
employee compensation plans existing on the date hereof), or sell or
grant options, rights or warrants with respect to any Common Units or
securities convertible into or exchangeable for Common Units (other
than the grant of options pursuant to option plans existing on the date
hereof), (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits
or risks of ownership of such Common Units, whether any such
transaction described in clause (1) or (2) above is to be settled by
delivery of Common Units or other securities, in cash or otherwise, (3)
file or cause to be filed a registration statement, including any
amendments, with respect to the registration of any Common Units or
securities convertible, exercisable or exchangeable into Common Units
or any other securities of the Partnership or (4) publicly disclose the
intention to do any of the foregoing, in each case without the prior
written consent of the Representative on behalf of the Underwriters,
and to cause each officer, director and unitholder of the Partnership
or the General Partner, as applicable, to furnish to the Representative
prior to the Initial Delivery Date, a letter or letters, substantially
in the form of Exhibit A hereto (the "LOCK-UP AGREEMENTS");
notwithstanding the foregoing, if (1) during the last 17 days of the
Lock-Up Period, the Partnership or APL issues an earnings release or
material news or a material event relating to the Partnership occurs or
(2) prior to the expiration of the Lock-Up Period, the Partnership or
APL announces that it will release earnings results during the 16-day
period beginning on the last day of the Lock-Up Period, then the
restrictions imposed in this Section 5(a)(viii) shall continue to apply
until the expiration of the 18-day period beginning on the issuance of
the earnings release or the announcement of the material news or the
occurrence of the material event, unless the Representative, on behalf
of the Underwriters, waives such extension in writing;
23
(ix) Application of Proceeds. To apply the net proceeds from
the sale of the Units being sold by the Partnership as set forth in the
Prospectus; and
(b) Each Underwriter severally agrees that such Underwriter
shall not include any "issuer information" (as defined in Rule 433) in any "free
writing prospectus" (as defined in Rule 405) used or referred to by such
Underwriter without the prior consent of the Partnership (any such issuer
information with respect to whose use the Partnership has given its consent,
"PERMITTED ISSUER INFORMATION"); provided that (i) no such consent shall be
required with respect to any such issuer information contained in any document
filed by the Partnership with the Commission prior to the use of such free
writing prospectus and (ii) "issuer information," as used in this Section 5(b),
shall not be deemed to include information prepared by or on behalf of such
Underwriter on the basis of or derived from issuer information.
6. Expenses. Each of the Atlas Parties covenants and agrees,
jointly and severally, whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, that the Partnership
will pay or cause to be paid all costs, expenses, fees and taxes incident to and
in connection with (a) the authorization, issuance, sale and delivery of the
Units and any stamp duties or other taxes payable in that connection, and the
preparation and printing of certificates for the Units; (b) the preparation,
printing and filing under the Securities Act of the Registration Statement
(including any exhibits thereto), any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus and any amendment or supplement thereto; (c)
the distribution of the Registration Statement (including any exhibits thereto),
any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus
and any amendment or supplement thereto, all as provided in this Agreement; (d)
the preparation, printing, authentication, issuance and delivery of certificates
for the Units, including any stamp or transfer taxes in connection with the
original issuance and sale of the Units; (e) services provided by the transfer
agent or registrar; (f) the production and distribution of this Agreement, any
supplemental agreement among Underwriters, and any other related documents in
connection with the offering, purchase, sale and delivery of the Units; (g) any
required review by the NASD of the terms of sale of the Units (including related
fees and expenses of counsel to the Underwriters); (h) the listing of the Units
on the New York Stock Exchange or any other exchange; (i) the qualification of
the Units under the securities laws of the several jurisdictions as provided in
Section 5(a)(vii)) and the preparation, printing and distribution of a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(j) the investor presentations on any "road show" undertaken in connection with
the marketing of the Units, including, without limitation, expenses associated
with any electronic roadshow, travel and lodging expenses of the representatives
and officers of the General Partner and the cost of any aircraft chartered in
connection with the road show; and (k) all other costs and expenses incident to
the performance of the obligations of the Partnership under this Agreement;
provided that, except as provided in this Section 6 and in Section 11, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Units which they may sell
and the expenses of advertising any offering of the Units made by the
Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Atlas
Parties contained herein, to the performance by the Atlas Parties of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
24
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a)(i); no stop order suspending
the effectiveness of the Registration Statement or preventing or
suspending the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been issued and no proceeding or examination for
such purpose shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to any
of the Atlas Parties on or prior to such Delivery Date that the
Registration Statement, the Prospectus or the Pricing Disclosure
Package, or any amendment or supplement thereto, contains an untrue
statement of a fact which, in the opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.,
counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate, partnership and limited liability company
proceedings and other legal matters incident to the authorization, form
and validity of this Agreement, the Units, the Registration Statement,
the Prospectus and any Issuer Free Writing Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Partnership shall
have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall have furnished to the
Representative its written opinion, as counsel to the Partnership,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representative, substantially
in the form attached hereto as Exhibit B-1.
25
(e) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Legal Officer and Secretary of the
General Partner, shall have furnished to the Representative a written
opinion addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representative,
substantially in the form attached hereto as Exhibit B-2.
(f) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇
L.L.P., counsel for the Underwriters, such opinion or opinions, dated
such Delivery Date, with respect to the issuance and sale of the Units,
the Registration Statement, the Prospectus and the Pricing Disclosure
Package and other related matters as the Representative may reasonably
require, and the Atlas Parties shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(g) At the time of execution of this Agreement, the
Representative shall have received from each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and
Ernst & Young LLP a letter or letters, in form and substance
satisfactory to the Representative, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective dates
as of which specified financial information is given in the most recent
Preliminary Prospectus, as of a date not more than five days prior to
the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection
with registered public offerings.
(h) With respect to the letter or letters of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP and Ernst & Young LLP referred to in the preceding paragraph and
delivered to the Representative concurrently with the execution of this
Agreement (the "INITIAL LETTER"), the Partnership shall have furnished
to the Representative a letter (the "BRING-DOWN LETTER") of such
accountants, addressed to the Underwriters and dated such Delivery Date
(i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than three days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(i) The Atlas Parties shall have furnished to the
Representative a certificate, dated such Delivery Date, signed on
behalf of the Partnership by (1) the Chief Executive Officer and
Chairman of the Board of the General Partner and (2) the Chief
Financial Officer of the General Partner, stating that:
26
(i) The representations, warranties and agreements of
the Atlas Parties in Section 1 are true and correct on and as
of such Delivery Date, and the each of the Atlas Parties has
complied with all of its respective agreements contained
herein and satisfied all of the respective conditions on its
part to be performed or satisfied hereunder at or prior to
such Delivery Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued; and no proceedings
or examination for that purpose have been instituted or, to
the knowledge of such officers, threatened; and
(iii) They have carefully examined the Registration
Statement, the Prospectus and the Pricing Disclosure Package,
and, in their opinion, (A) (1) the Registration Statement, as
of the Effective Date, (2) the Prospectus, as of its date and
on the applicable Delivery Date, or (3) the Pricing Disclosure
Package, as of the Applicable Time, did not and do not contain
any untrue statement of a material fact and did not and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (except in the case
of the Registration Statement, in the light of the
circumstances under which they were made) not misleading,
except, in the case of the Pricing Disclosure Package, that
the price of the Units and disclosures directly relating
thereto and derived therefrom are included on the cover page
of the Prospectus or under the captions "The Offering,"
"Summary Historical Consolidated and Pro Forma Financial
Data," "Use of Proceeds," "Capitalization," "Dilution," "Cash
Distribution Policy and Restrictions on Distributions,"
"Selected Historical Financial and Operating Data," and
"Underwriting" in the Prospectus, and (B) since the Effective
Date, no event has occurred that should have been set forth in
a supplement or amendment to the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus that has not
been so set forth;
(j) Except as described in the most recent Preliminary
Prospectus, (i) none of the Atlas Parties or the APL Parties shall have
sustained, since the date of the latest audited financial statements
included in the most recent Preliminary Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree or (ii) since
such date there shall not have been any change in the capitalization or
long-term debt of any of the Atlas Parties or the APL Parties or any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of
operations, equity, properties, management, business or prospects of
the Atlas Parties and APL Parties taken as a whole, the effect of
which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Units being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Partnership on any exchange or in the
over-the-counter market, shall have been suspended or materially
limited or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on
any such exchange or such market by the Commission, by such exchange or
by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by
federal or state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions, including, without
limitation, as a result of terrorist activities after the date hereof
(or the effect of international conditions on the financial markets in
the United States shall be such), as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public
offering or delivery of the Units being delivered on such Delivery Date
on the terms and in the manner contemplated in the Prospectus.
27
(l) The New York Stock Exchange shall have approved the Units
for listing, subject only to official notice of issuance.
(m) The Lock-Up Agreements between the Representative and each
officer, director and unitholder of the Partnership or the General
Partner, as applicable, shall have delivered to the Representative on
or before the date of this Agreement, shall be in full force and effect
on such Delivery Date.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) Each of the Atlas Parties, jointly and severally, shall
indemnify and hold harmless each Underwriter, its directors, officers
and employees and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
the Units), to which that Underwriter, director, officer, employee or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) any Preliminary
Prospectus, the Registration Statement, the Prospectus or in any
amendment or supplement thereto, (B) any Issuer Free Writing Prospectus
or in any amendment or supplement thereto or (C) any Permitted Issuer
Information used or referred to in any "free writing prospectus" (as
defined in Rule 405) used or referred to by any Underwriter, (D) any
"road show" (as defined in Rule 433) not constituting an Issuer Free
Writing Prospectus (a "NON-PROSPECTUS ROAD SHOW") or (E) any Blue Sky
application or other document prepared or executed by any of the Atlas
Parties (or based upon any written information furnished by any of the
Atlas Parties or the APL Parties for use therein) specifically for the
28
purpose of qualifying any or all of the Units under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "BLUE SKY APPLICATION"), (ii)
the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free
Writing Prospectus or in any amendment or supplement thereto or in any
Permitted Issuer Information, any Non-Prospectus Road Show or any Blue
Sky Application, any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Units
or the offering contemplated hereby, and which is included as part of
or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above
(provided that the Atlas Parties shall not be liable under this clause
(iii) to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct), and shall reimburse each
Underwriter and each such director, officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably
incurred by that Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Atlas
Parties shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus, any Issuer Free Writing
Prospectus or in any such amendment or supplement thereto or in any
Permitted Issuer Information, any Non-Prospectus Road Show or any Blue
Sky Application, in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Partnership
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information consists solely
of the information specified in Section 8(e). The foregoing indemnity
agreement is in addition to any liability which the Atlas Parties may
otherwise have to any Underwriter or to any director, officer, employee
or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Atlas Parties, their respective
officers and employees, each of their respective directors and
managers, and each person, if any, who controls any of the Atlas
Parties within the meaning of Section 15 of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which any of the Atlas Parties or any
such director, manager, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Non-Prospectus Road Show or
Blue Sky Application, or (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Non-Prospectus Road Show or Blue Sky
Application, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information concerning such Underwriter
furnished to the Partnership through the Representative by or on behalf
of that Underwriter specifically for inclusion therein, which
information is limited to the information set forth in Section 8(e).
The foregoing indemnity agreement is in addition to any liability that
any Underwriter may otherwise have to any of the Atlas Parties or any
such director, manager, officer, employee or controlling person.
29
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representative shall have
the right to employ counsel to represent jointly the Representative and
those other Underwriters and their respective directors, officers,
employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by
the Underwriters against the Atlas Parties under this Section 8 if (i)
the Atlas Parties and the Underwriters shall have so mutually agreed;
(ii) the Atlas Parties have failed within a reasonable time to retain
counsel reasonably satisfactory to the Underwriters; (iii) the
Underwriters and their respective directors, officers, employees and
controlling persons shall have reasonably concluded that there may be
legal defenses available to them that are different from or in addition
to those available to the Atlas Parties; or (iv) the named parties in
any such proceeding (including any impleaded parties) include both the
Underwriters or their respective directors, officers, employees or
controlling persons, on the one hand, and the Atlas Parties, on the
other hand, and representation of both sets of parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them, and in any such event the fees and expenses of
such separate counsel shall be paid by the Atlas Parties. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include any findings of fact or
admissions of fault or culpability as to the indemnified party, or (ii)
be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with the consent of the indemnifying party or if there be a
final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from
and against any loss or liability by reason of such settlement or
judgment.
30
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Atlas Parties, on the one hand, and the Underwriters, on the other,
from the offering of the Units or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Atlas Parties,
on the one hand, and the Underwriters, on the other, with respect to
the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by
the Atlas Parties, on the one hand, and the Underwriters, on the other,
with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Units
purchased under this Agreement (before deducting expenses) received by
the Atlas Parties, as set forth in the table on the cover page of the
Prospectus, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the Units
purchased under this Agreement, as set forth in the table on the cover
page of the Prospectus, on the other hand. The relative fault shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Atlas Parties or
the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Atlas Parties and the Underwriters
agree that it would not be just and equitable if contributions pursuant
to this Section 8(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take into account the
equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
8(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the net proceeds from the sale of the
Units underwritten by it exceeds the amount of any damages that such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. 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. The Underwriters' obligations to contribute as
provided in this Section 8(d) are several in proportion to their
respective underwriting obligations and not joint.
31
(e) The Underwriters severally confirm and each of the Atlas
Parties acknowledges and agrees that the statements with respect to the
public offering of the Units by the Underwriters set forth on the cover
page of, and the concession and reallowance figures appearing under the
caption "Underwriting--Commissions and Expenses" and the statements
relating to stabilization by the Underwriters appearing under the
caption "Underwriting--Stabilization, Short Positions and Penalty Bids"
in, the most recent Preliminary Prospectus and the Prospectus are
correct and constitute the only information concerning such
Underwriters furnished in writing to the Atlas Parties by or on behalf
of the Underwriters specifically for inclusion in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any Issuer Free
Writing Prospectus or in any amendment or supplement thereto or in any
Marketing Materials.
9. Defaulting Underwriters. If, on any Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Units that the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of Firm Units set
forth opposite the name of each remaining non-defaulting Underwriter in Schedule
I hereto bears to the total number of Firm Units set forth opposite the names of
all the remaining non-defaulting Underwriters in Schedule I hereto; provided,
however, that the remaining non-defaulting Underwriters shall not be obligated
to purchase any of the Units on such Delivery Date if the total number of Units
that the defaulting Underwriter or Underwriters agreed but failed to purchase on
such date exceeds 9.09% of the total number of Units to be purchased on such
Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of Units that it agreed to
purchase on such Delivery Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Units to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the
Representative do not elect to purchase the units that the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to any Option Unit Delivery Date, the
obligation of the Underwriters to purchase, and of the Partnership to sell, the
Option Units) shall terminate without liability on the part of any
non-defaulting Underwriter or any of the Atlas Parties, except that the Atlas
Parties will continue to be liable for the payment of expenses to the extent set
forth in Sections 6 and 11. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule I hereto that, pursuant to this
Section 9, purchases Units that a defaulting Underwriter agreed but failed to
purchase.
32
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Atlas Parties for damages caused
by its default. If other Underwriters are obligated or agree to purchase the
Units of a defaulting or withdrawing Underwriter, either the Representative or
the Partnership may postpone the Delivery Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Partnership or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representative by notice given to and received by the
Atlas Parties prior to delivery of and payment for the Firm Units if, prior to
that time, any of the events described in Sections 7(j) or 7(k) shall have
occurred or if the Underwriters shall decline to purchase the Units for any
reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the
Partnership shall fail to tender the Units for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of any of the Atlas
Parties to perform any agreement on its part to be performed, or because any
other condition to the Underwriters' obligations hereunder required to be
fulfilled by any of the Atlas Parties is not fulfilled for any reason or (b) the
Underwriters shall decline to purchase the Units for any reason permitted under
this Agreement, the Atlas Parties will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Units, and upon demand the Atlas Parties shall pay the full
amount thereof to the Representative. If this Agreement is terminated pursuant
to Section 10 by reason of the default of one or more Underwriters, the Atlas
Parties shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. Research Analyst Independence. Each of the Atlas Parties
acknowledges that the Underwriters' research analysts and research departments
are required to be independent from their respective investment banking
divisions and are subject to certain regulations and internal policies, and that
such Underwriters' research analysts may hold views and make statements or
investment recommendations or publish research reports with respect to the
Partnership or the offering of the Units that differ from the views of their
respective investment banking divisions. Each of the Atlas Parties hereby waives
and releases, to the fullest extent permitted by law, any claims that the Atlas
Parties may have against the Underwriters with respect to any conflict of
interest that may arise from the fact that the views expressed by their
independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Atlas Parties by such
Underwriters' investment banking divisions. Each of the Atlas Parties
acknowledges that each of the Underwriters is a full service securities firm and
as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long
or short positions in debt or equity securities of the companies that may be the
subject of the transactions contemplated by this Agreement.
33
13. No Fiduciary Duty. Each of the Atlas Parties acknowledges
and agrees that in connection with this offering and sale of the Units or any
other services the Underwriters may be deemed to be providing hereunder,
notwithstanding any preexisting relationship, advisory or otherwise, between the
parties or any oral representations or assurances previously or subsequently
made by the Underwriters: (i) no fiduciary or agency relationship between any of
the Atlas Parties and any other person, on the one hand, and the Underwriters,
on the other, exists; (ii) the Underwriters are not acting as advisors, expert
or otherwise, to any of the Atlas Parties, including, without limitation, with
respect to the determination of the public offering price of the Units, and such
relationship between the Atlas Parties, on the one hand, and the Underwriters,
on the other, is entirely and solely commercial, based on arms-length
negotiations; (iii) any duties and obligations that the Underwriters may have to
any of the Atlas Parties shall be limited to those duties and obligations
specifically stated herein; and (iv) the Underwriters and their respective
affiliates may have interests that differ from those of the Atlas Parties. Each
of the Atlas Parties hereby waives any claims that any such entity may have
against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering of Units.
14. Notices, Etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail
or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Registration (Fax:
▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant to
Section 8(c), to the Director of Litigation, Office of the General
Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Partnership, shall be delivered or sent by mail
or facsimile transmission to the address of the Partnership set forth
in the Registration Statement, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ (Fax:
__________);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail or facsimile transmission to such Underwriter
care of the Representative at the following address: [_______________]. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof. The Atlas Parties shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by ▇▇▇▇▇▇ Brothers Inc.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Atlas
Parties and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Atlas
Parties contained in this Agreement shall also be deemed to be for the benefit
of the directors, officers and employees of the Underwriters and each person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 8(c) of this Agreement shall be deemed to be for the benefit of the
directors and managers of the Atlas Parties, the officers of the Atlas Parties
who have signed the Registration Statement and any person controlling the Atlas
Parties within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 15, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
34
16. Survival. The respective indemnities, representations,
warranties and agreements of the Atlas Parties and the Underwriters contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Units and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary."
For purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday that is not a day on which banking institutions in
New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
35
If the foregoing correctly sets forth the agreement between
Atlas Parties and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
ATLAS PIPELINE HOLDINGS, L.P.
By: ATLAS PIPELINE HOLDINGS GP, LLC
its General Partner
By:
------------------------------
Name:
Title:
ATLAS PIPELINE HOLDINGS GP, LLC
By:
----------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
For itself and as Representative
of the several Underwriters named
in Schedule I hereto
By:
-------------------------
Authorized Representative
36
SCHEDULE I
Number of Firm Units
--------------------
Underwriters
-----------------------------------------------------------
▇▇▇▇▇▇ Brothers Inc........................................
[Other underwriters].......................................
............................................................
............................................................
--------------------
Total...................................................... 3,600,000
====================
Schedule I
SCHEDULE II
Jurisdiction of Foreign
Subsidiary Formation Qualifications
--------------------------------------------------- --------------- --------------
---------------- --------------
Schedule II
SCHEDULE III
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors
Officers
Unitholders
EXHIBIT A
LOCK-UP LETTER AGREEMENT
▇▇▇▇▇▇ BROTHERS INC.
As Representative of the several
Underwriters named in Schedule I,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned understands that you (the "REPRESENTATIVE")
and certain other firms (the "UNDERWRITERS") propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") providing for the purchase
by the Underwriters of common units (the "COMMON UNITS") representing limited
partner interests in Atlas Pipeline Holdings, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), and that the Underwriters propose to reoffer
the Common Units to the public (the "OFFERING").
In consideration of the execution of the Underwriting
Agreement by the Representative on behalf of the Underwriters, and for other
good and valuable consideration, the undersigned hereby irrevocably agrees that,
without the prior written consent of the Representative on behalf of the
Underwriters, the undersigned will not, directly or indirectly, (1) offer for
sale, sell, pledge, or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any Common Units (including, without
limitation, Common Units that may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and
Exchange Commission and Common Units that may be issued upon exercise of any
options or warrants) or securities convertible into or exercisable or
exchangeable for Common Units, (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of the Common Units, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Units or other securities, in cash or otherwise, (3) make any demand for or
exercise any right or cause, or otherwise attempt to cause, to be filed a
registration statement, including any amendments thereto, with respect to the
registration of any Common Units or securities convertible into or exercisable
or exchangeable for Common Units or any other securities of the Partnership or
(4) publicly disclose the intention to do any of the foregoing, for a period
commencing on the date hereof and ending on the 180th day after the date of the
final prospectus relating to the Offering (such 180-day period, the "LOCK-UP
PERIOD").
Notwithstanding the foregoing, if (1) during the last 17 days
of the Lock-Up Period, the Partnership issues an earnings release or material
news or a material event relating to the Partnership occurs or (2) prior to the
expiration of the Lock-Up Period, the Partnership announces that it will release
earnings results during the 16-day period beginning on the last day of the
Lock-Up Period, then the restrictions imposed by this Lock-Up Letter Agreement
shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the announcement of the material news or
the occurrence of the material event, unless the Representative waives such
extension in writing. The undersigned hereby further agrees that, prior to
engaging in any transaction or taking any other action that is subject to the
terms of this Lock-Up Letter Agreement during the period from the date of this
Lock-Up Letter Agreement to and including the 34th day following the expiration
of the Lock-Up Period, it will give notice thereof to the Partnership and will
not consummate such transaction or take any such action unless it has received
written confirmation from the Partnership that the Lock-Up Period (as such may
have been extended pursuant to this paragraph) has expired.
In furtherance of the foregoing, the Partnership and its
transfer agent are hereby authorized to decline to make any transfer of
securities if such transfer would constitute a violation or breach of this
Lock-Up Letter Agreement.
It is understood that, if the Partnership notifies the
Representative that it does not intend to proceed with the Offering, if the
Underwriting Agreement does not become effective, or if the Underwriting
Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common
Units, the undersigned will be released from its obligations under this Lock-Up
Letter Agreement.
The undersigned understands that the Partnership and the
Underwriters will proceed with the Offering in reliance on this Lock-Up Letter
Agreement.
Whether or not the Offering actually occurs depends on a
number of factors, including market conditions. Any Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Partnership and the Underwriters.
[Signature page follows]
2
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this Lock-Up Letter
Agreement and that, upon request, the undersigned will execute any additional
documents necessary in connection with the enforcement hereof. Any obligations
of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
By: ______________________________
Name:
Title:
Dated: _______________
