REGISTRATION RIGHTS AGREEMENT BY AND AMONG REGENCY ENERGY PARTNERS LP AND THE PURCHASERS PARTY HERETO DATED AS OF MAY 2, 2011
Exhibit 4.1
BY AND AMONG
AND
THE PURCHASERS PARTY HERETO
DATED AS OF MAY 2, 2011
ARTICLE I . DEFINITIONS |
1 | |||
Section 1.1 Registrable Securities |
3 | |||
Section 1.2 Right and Obligations |
3 | |||
ARTICLE II . REGISTRATION RIGHTS |
3 | |||
Section 2.1 Registration |
3 | |||
Section 2.2 Piggyback Rights |
6 | |||
Section 2.3 Underwritten Offering |
8 | |||
Section 2.4 Cooperation by Holders |
11 | |||
Section 2.5 Restrictions on Public Sale by Holders of Registrable Securities |
11 | |||
Section 2.6 Expenses |
12 | |||
Section 2.7 Indemnification |
12 | |||
Section 2.8 Rule 144 Reporting |
14 | |||
Section 2.9 Transfer or Assignment of Registration Rights |
15 | |||
Section 2.10 Limitation on Subsequent Registration Rights |
15 | |||
ARTICLE III . MISCELLANEOUS |
16 | |||
Section 3.1 Communications |
16 | |||
Section 3.2 Successor and Assigns |
18 | |||
Section 3.3 Assignment of Rights |
18 | |||
Section 3.4 Recapitalization, Exchanges, Etc. Affecting the Units |
18 | |||
Section 3.5 Aggregation of Restricted Xxxxx |
00 | |||
Xxxxxxx 3.6 Specific Performance |
18 | |||
Section 3.7 Counterparts |
19 | |||
Section 3.8 Headings |
19 | |||
Section 3.9 Governing Law |
19 | |||
Section 3.10 Severability of Provisions |
19 | |||
Section 3.11 Entire Agreement |
19 | |||
Section 3.12 Amendment |
19 | |||
Section 3.13 No Presumption |
19 | |||
Section 3.14 Obligations Limited to Parties to Agreement |
19 | |||
Section 3.15 Interpretation |
20 | |||
Section 3.16 Equal Treatment of Purchasers |
20 |
i
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
May 2, 2011, by and among REGENCY ENERGY PARTNERS, L.P., a Delaware limited partnership (the
“Partnership”), and the purchasers listed on Schedule 1 hereto (each a “Purchaser”
and collectively, the “Purchasers”).
WHEREAS, this Agreement is made in connection with the Closing of the issuance and sale of
Purchased Units representing limited partnership interests in the Partnership, pursuant to that
certain Common Unit Purchase Agreement, dated as of March 22, 2011, by and among the Partnership
and the Purchasers named therein (the “Purchase Agreement”); and
WHEREAS, the Partnership has agreed to provide the registration and other rights set forth in
this Agreement for the benefit of the Purchasers of the Purchased Units pursuant to the Purchase
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by
each party hereto, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
DEFINITIONS
Definitions. Capitalized terms used herein without definition shall have the meanings
given to them in the Purchase Agreement. The terms set forth below are used herein as so defined:
“Affiliate” means, with respect to a specified Person, any other Person, whether now
in existence or hereafter created, directly or indirectly controlling, controlled by or under
direct or indirect common control with such specified Person. For purposes of this definition,
“control” (including, with correlative meanings, “controlling,” “controlled by,” and “under common
control with”) means the power to direct or cause the direction of the management and policies of
such Person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
“Agreement” has the meaning specified therefor in the recitals hereof.
“Commission” means the United States Securities and Exchange Commission.
“Common Units” means common units representing limited partner interests in the
Partnership having the rights and obligations specified in the Partnership Agreement.
“XXXXX” means the Electronic Data Gathering, Analysis and Retrieval System of the
Commission, or any successor system thereto.
“Effectiveness Period” has the meaning specified therefor in Section 2.1(a) of this
Agreement.
“Holder” means the record holder of any Registrable Securities.
“Included Registrable Securities” has the meaning specified therefor in Section 2.2(a)
of this Agreement.
“Liquidated Damages” has the meaning specified therefor in Section 2.1(c) of this
Agreement.
“Liquidated Damages Multiplier” has the meaning specified therefor in Section 2.1(c)
of this Agreement.
“Losses” has the meaning specified therefor in Section 2.6(a) of this Agreement.
“Managing Underwriter” means, with respect to any Underwritten Offering, the book
running lead manager of such Underwritten Offering.
“Parity Securities” has the meaning specified therefor in Section 2.2(b) of this
Agreement.
“Partnership” has the meaning specified therefor in the recitals hereof.
“Person” means any individual, corporation, company, voluntary association,
partnership, joint venture, trust, limited liability company, unincorporated organization or
government or any agency, instrumentality or political subdivision thereof, or any other form of
entity.
“Piggyback Opt-out Notice” has the meaning specified therefor in Section 2.2(a) of
this Agreement.
“Purchase Agreement” has the meaning specified therefor in the recitals hereof.
“Purchased Units” means the Common Units to be issued and sold to the Purchasers
pursuant to the Purchase Agreement.
“Purchaser” or “Purchasers” has the meaning specified therefor in the
introductory paragraph of this Agreement.
“Registrable Securities” means the Purchased Units, all of which Registrable
Securities are subject to the rights provided herein until such time as such securities cease to be
Registrable Securities pursuant to Section 1.1 hereof.
“Registration Expenses” has the meaning specified therefor in Section 2.6(b) of this
Agreement.
“Resale Opt-out Notice” has the meaning specified therefor in Section 2.1(b) of this
Agreement.
“Resale Registration Statement” means a registration statement under the Securities
Act to permit the public resale of the Registrable Securities from time to time, including as
permitted
2
by Rule 415 under the Securities Act (or any similar provision then in force under the
Securities Act).
“Selling Expenses” has the meaning specified therefor in Section 2.6(b) of this
Agreement.
“Selling Holder” means a Holder who is selling Registrable Securities pursuant to a
registration statement.
“Selling Holder Indemnified Persons” has the meaning specified therefor in Section
2.6(a) of this Agreement.
“Target Effective Date” has the meaning specified therefor in Section 2.1(a) of this
Agreement.
“Underwritten Offering” means an offering (including an offering pursuant to a Resale
Registration Statement) in which Common Units are sold to an underwriter on a firm commitment basis
for reoffering to the public or an offering that is a “bought deal” with one or more investment
banks.
“Walled Off Person” has the meaning specified therefor in Section 2.5 of this
Agreement.
“WKSI” means a well-known seasoned issuer (as defined in the rules and regulations of
the Commission).
Section 1.1 Registrable Securities. Any Registrable Security will cease to be a
Registrable Security (a) when a registration statement covering the Registrable Security becomes or
is declared effective by the Commission and the Registrable Security has been sold or disposed of
pursuant to such effective registration statement; (b) when such Registrable Security has been
disposed of pursuant to any section of Rule 144 (or any similar provision then in force) under the
Securities Act; (c) when such Registrable Security has been disposed of in a private transaction
pursuant to which the transferor’s rights have not been assigned to the transferee in accordance
with Section 2.9 of this Agreement; (d) when such Registrable Security is held by the Partnership
or its Subsidiaries; or (e) one year from the date of this Agreement.
Section 1.2 Right and Obligations. Except for the rights and obligations under
Section 2.7 herein, all rights and obligations of each Holder under this Agreement, and all rights
and obligations of the Partnership under this Agreement with respect to such Holders, shall
terminate when such Holder is no longer a Holder.
ARTICLE II.
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 2.1 Registration.
(a) Request for Filing and Deadline To Become Effective. Within thirty (30) days of
Closing, the Partnership shall file a Resale Registration Statement to permit the public resale of
Registrable Securities then outstanding from time to time as permitted by Rule 415 of
3
the Securities Act. The Partnership shall prepare and file a Resale Registration Statement
under the Securities Act with respect to all of the Registrable Securities of the Holders unless
the Holder has opted out of inclusion pursuant to Section 2.1(b). The Resale Registration
Statement filed pursuant to this Section 2.1(a) shall be on such appropriate registration form of
the Commission as shall be selected by the Partnership. The Partnership shall use its commercially
reasonable efforts to cause the Resale Registration Statement to become effective no later than 60
days following the Closing Date (the “Target Effective Date”). The Partnership will use
its commercially reasonable efforts to cause the Resale Registration Statement filed pursuant to
this Section 2.1 to be continuously effective under the Securities Act until all Registrable
Securities covered by the Resale Registration Statement have ceased to be Registrable Securities
(the “Effectiveness Period”). The Resale Registration Statement when declared effective
(including the documents incorporated therein by reference) will comply as to form in all material
respects with all applicable requirements of the Securities Act and the Exchange Act and will not
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 (and, in the case of any
prospectus contained in such Resale Registration Statement, in the light of the circumstances under
which a statement is made). As soon as practicable following the date that the Resale Registration
Statement becomes effective, but in any event within five Business Days of such date, the
Partnership shall provide the Holders with written notice of the effectiveness of the Resale
Registration Statement.
(b) Resale Registration Opt-Out. Any Holder may deliver advance written notice (a
“Resale Opt-Out Notice”) to the Partnership requesting that such Holder not be included in
the Resale Registration Statement. Following receipt of a Resale Opt-Out Notice from a Holder, the
Partnership shall not be required to include the Purchased Units of such Holder in the Resale
Registration Statement. The Holders indicated on Schedule 1 hereto shall each be deemed to have
delivered a Resale Opt-Out Notice as of the date hereof.
(c) Failure To Become Effective. If the Resale Registration Statement required by
Section 2.1(a) does not become or is not declared effective on or before the Target Effective Date,
then the Partnership shall pay each Holder (with respect to the Purchased Units of each such Holder
which are included on such Resale Registration Statement), as liquidated damages and not as a
penalty, (i) for each non-overlapping 30-day period for the first 60 days following the Target
Effective Date, an amount equal to (A) 0.25% times (B) the product of (x) the Purchased Unit Price
times (y) the number of Purchased Units, then held by such Holder and included on such Resale
Registration Statement (such product of (x) and (y) being the “Liquidated Damages
Multiplier”), and (ii) for each non-overlapping 30-day period beginning on the 61st day
following the Target Effective Date, with such payment amount increasing by an additional amount
equal to 0.25% times the Liquidated Damages Multiplier per non-overlapping 30-day period for each
subsequent 60 days (i.e., 0.5% for 61-120 days, 0.75% for 121-180 days, and 1.0% thereafter) up to
a maximum amount equal to 1.0% times the Liquidated Damages Multiplier per non-overlapping 30-day
period (the “Liquidated Damages”); provided, that the aggregate amount of Liquidated
Damages payable by the Partnership per Purchased Unit may not exceed 5.0% of the Purchased Unit
Price. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be
payable within ten Business Days after the end of each such non-overlapping 30-day period. Any
Liquidated Damages shall be paid to each Holder in cash; provided, however, if the Partnership
certifies that it is unable to pay Liquidated Damages
4
in cash because such payment will violate a covenant in an existing credit agreement or other
indebtedness, then the Partnership may, in its sole discretion, pay the Liquidated Damages in kind
in the form of the issuance of Common Units, unless otherwise not permitted. Upon any issuance of
Common Units as Liquidated Damages, the Partnership shall promptly prepare and file a supplemental
listing application with the NASDAQ to list such Common Units. The determination of the number of
Common Units to be paid as Liquidated Damages shall be based on the volume-weighted average price
of the Common Units for the ten trading days immediately preceding the date on which the Liquidated
Damages payment is due, less a discount of 2%. The payment of Liquidated Damages under this
Section 2.1(c) and Section 2.1(d) to a Holder shall cease at such time as the Resale Registration
Statement becomes or is declared effective by the Commission or at such time as the securities
included on the Resale Registration Statement are no longer Registrable Securities), and shall be
prorated for any period of less than 30 days in which the Liquidated Damages cease.
(d) Waiver of Liquidated Damages. If the Partnership is unable to cause a Resale
Registration Statement to become effective by the Target Effective Date as a result of an
acquisition, merger, reorganization, disposition or other similar transaction, then the Partnership
may request a waiver of the Liquidated Damages, which may be granted by the consent of the Holders
of a majority of the outstanding Registrable Securities that have been included on such Resale
Registration Statement, in their sole discretion, and which such waiver shall apply to all the
Holders of Registrable Securities included on such Resale Registration Statement.
(e) Delay Rights. Notwithstanding anything to the contrary contained herein, the
Partnership may, upon written notice to any Selling Holder whose Registrable Securities are
included in the Resale Registration Statement, suspend such Selling Holder’s use of any prospectus
which is a part of the Resale Registration Statement (in which event the Selling Holder shall
discontinue sales of the Registrable Securities pursuant to the Resale Registration Statement but
may settle any previously made sales of Registrable Securities) if (i) the Partnership is pursuing
an acquisition, merger, reorganization, disposition or other similar transaction and the
Partnership determines in good faith that the Partnership’s ability to pursue, consummate or
finance such a transaction would be materially adversely affected by any required disclosure of
such transaction in the Resale Registration Statement or (ii) the Partnership has experienced some
other material non-public event the disclosure of which at such time, in the good faith judgment of
the Partnership, would materially adversely affect the Partnership; provided, however, in no event
shall the Selling Holders be suspended from selling Registrable Securities pursuant to the Resale
Registration Statement for a period that exceeds an aggregate of 60 days in any 180-day period or
105 days in any 365-day period, in each case, exclusive of days covered by any lock-up agreement
executed by a Selling Holder in connection with any Underwritten Offering. Upon disclosure of such
information or the termination of the condition described above, the Partnership shall provide
prompt notice to the Selling Holders whose Registrable Securities are included in the Resale
Registration Statement, and shall promptly terminate any suspension of sales it has put into effect
and shall take such other reasonable actions to permit registered sales of Registrable Securities
as contemplated in this Agreement.
(f) Additional Rights to Liquidated Damages. If (i) the Holders shall be prohibited
from selling their Registrable Securities under the Resale Registration Statement as a
5
result of a suspension pursuant to Section 2.1(e) of this Agreement in excess of the periods
permitted therein or (ii) the Resale Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded within 10 days by a post-effective amendment pursuant
thereto, a supplement to the prospectus or a report filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, then until the suspension is lifted or a
post-effective amendment, supplement or report is filed with the Commission and declared effective,
but not including any day on which a suspension is lifted or such amendment, supplement or report
is declared effective, if applicable, the Partnership shall owe the Holder an amount equal to the
Liquidated Damages, following the earlier of (i) the date on which the suspension period exceeded
the permitted period or (ii) the 11th day after the Resale Registration Statement ceased
to be effective or failed to be useable for its intended purposes. All of the provisions in
Section 2.1(c) with respect to the payment of the Liquidated Damages, including but not limited to
the ability to issue additional Common Units in lieu of cash payments, the time period in which
payments are due, and the determination of the number of Common Units to issue as Liquidated
Damages shall be applicable to the Liquidated Damages payable hereunder. For purposes of this
Section 2.1(f), a suspension shall be deemed lifted on the date that notice that the suspension has
been lifted is delivered to the Holders pursuant to Section 3.1 of this Agreement.
(g) Termination of Rights. Other than as set forth otherwise in this Agreement, a
Holder’s rights (and any transferee’s rights pursuant to Section 2.9) under this Section 2.1,
including rights to Liquidated Damages (other than Liquidated Damages owing but not yet paid),
shall terminate upon the termination of the Effectiveness Period.
(h) No Demand Rights. Notwithstanding any other provision of this Agreement, no
Holder of Registrable Securities shall be entitled to any “demand” rights or similar rights that
would require the Partnership to effect an Underwritten Offering solely on behalf of such Holder.
Section 2.2 Piggyback Rights.
(a) Underwritten Offering Piggyback Rights. If the Partnership proposes to file (i) a
registration statement, or (ii) a prospectus supplement to an effective registration statement, so
long as the Corporation is a WKSI at such time or, whether or not the Corporation is a WKSI, so
long as the Registrable Securities were previously included in the underlying shelf Registration
Statement or are included on an effective Resale Registration Statement, or in any case in which
Holders may participate in such offering without the filing of a post-effective amendment, in each
case, for the sale of Common Units in an Underwritten Offering for its own account and/or another
Person, other than (a) a registration relating solely to employee benefit plans, (b) a registration
relating solely to a Rule 145 transaction, or (c) a registration on any registration form which
does not permit secondary sales, then as soon as practicable following the engagement of counsel by
the Partnership to prepare the documents to be used in connection with an Underwritten Offering,
the Partnership shall give notice (including, but not limited to, notification by electronic mail)
of such proposed Underwritten Offering to each Holder owning more than $20.0 million of such Common
Units, calculated on the basis of the Purchased Unit Price, and such notice shall offer such Holder
the opportunity to participate in any Underwritten Offering and to include in such Underwritten
Offering such number of Registrable Securities that
6
are Common Units (the “Included Registrable Securities”) as each such Holder may
request in writing, subject to any registration rights existing prior to the Closing Date and
customary underwriter cutbacks; provided, however, that the Partnership shall not be required to
provide such opportunity (i) to any such Holder that does not offer a minimum of $10.0 million of
Registrable Securities (based on the Purchased Unit Price), or (ii) to such Holders if the
Partnership has been advised by the Managing Underwriter that the inclusion of Registrable
Securities for sale for the benefit of the Holders will have an adverse effect on the price, timing
or distribution of the Common Units in the Underwritten Offering, then the amount of Registrable
Securities to be offered for the accounts of Holders shall be determined based on the provisions of
Section 2.2(b). Any notice required to be provided in this Section 2.2(a) to Holders shall be
provided on a Business Day pursuant to Section 3.1 hereof and receipt of such notice shall be
confirmed by the Holder. The Holder will have two Business Days (or one Business Day in connection
with any overnight or bought Underwritten Offering) after notice has been delivered to request in
writing the inclusion of Registrable Securities that are Common Units in the Underwritten Offering.
If no written request for inclusion from a Holder is received within the specified time, each such
Holder shall have no further right to participate in such Underwritten Offering. If, at any time
after giving written notice of its intention to undertake an Underwritten Offering and prior to the
closing of such Underwritten Offering, the Partnership shall determine for any reason not to
undertake or to delay such Underwritten Offering, the Partnership may, at its election, give
written notice of such determination to the Selling Holders and, (x) in the case of a determination
not to undertake such Underwritten Offering, shall be relieved of its obligation to sell any
Included Registrable Securities in connection with such terminated Underwritten Offering, and (y)
in the case of a determination to delay such Underwritten Offering, shall be permitted to delay
offering any Included Registrable Securities for the same period as the delay in the Underwritten
Offering. Any Selling Holder shall have the right to withdraw such Selling Holder’s request for
inclusion of such Selling Holder’s Registrable Securities in such Underwritten Offering by giving
written notice to the Partnership of such withdrawal at or prior to the time of pricing of such
Underwritten Offering. Any Holder may deliver written notice (an “Piggyback Opt-Out
Notice”) to the Partnership requesting that such Holder not receive notice from the Partnership
of any proposed Underwritten Offering; provided, however, that such Holder may later revoke any
such Piggyback Opt-Out Notice in writing. Following receipt of an Piggyback Opt-Out Notice from a
Holder (unless subsequently revoked), the Partnership shall not be required to deliver any notice
to such Holder pursuant to this Section 2.2(a) and such Holder shall no longer be entitled to
participate in Underwritten Offerings by the Partnership pursuant to this Section 2.2(a). The
Holders indicated on Schedule 1 hereto shall each be deemed to have delivered an Piggyback Opt-Out
Notice as of the date hereof.
(b) Priority of Piggyback Rights. If the Managing Underwriter or Underwriters of any
proposed Underwritten Offering advises the Partnership that the total amount of Registrable
Securities that the Selling Holders and any other Persons intend to include in such offering
exceeds the number that can be sold in such offering without being likely to have an adverse effect
on the price, timing or distribution of the Common Units offered or the market for the Common
Units, then the Common Units to be included in such Underwritten Offering shall include the number
of Registrable Securities that are Common Units that such Managing Underwriter or Underwriters
advises the Partnership can be sold without having such adverse effect, with such number to be
allocated (i) first, to the Partnership and, (ii) second, pro rata
7
among the Selling Holders who have requested participation in such Underwritten Offering and
any other holder of securities of the Partnership having rights of registration that are neither
expressly senior nor subordinated to the Registrable Securities (the “Parity Securities”).
The pro rata allocations for each Selling Holder who has requested participation in such
Underwritten Offering shall be the product of (A) the aggregate number of Registrable Securities
that are Common Units proposed to be sold in such Underwritten Offering multiplied by (B) the
fraction derived by dividing (x) the number of Registrable Securities that are Common Units owned
on the Closing Date by such Selling Holder by (y) the aggregate number of Registrable Securities
that are Common Units owned on the Closing Date by all Selling Holders plus the aggregate number of
Parity Securities owned on the Closing Date by all holders of Parity Securities that are
participating in the Underwritten Offering.
(c) Termination of Piggyback Registration Rights. The piggyback rights under Section
2.2 will terminate at the earlier of (i) the time at which a Holder and its Affiliates own less
than $20.0 million of Common Units (based on the Purchased Unit Price) or (ii) the Common Units
cease to be Registrable Securities.
Section 2.3 Underwritten Offering.
(a) General Procedures. In connection with any Underwritten Offering under this
Agreement, the Partnership shall be entitled to select the Managing Underwriter or Underwriters in
its sole discretion. In connection with an Underwritten Offering contemplated by this Agreement in
which a Selling Holder participates, each Selling Holder and the Partnership shall be obligated to
enter into an underwriting agreement with the Managing Underwriter or Underwriters which contains
such representations, covenants, indemnities and other rights and obligations as are customary in
underwriting agreements for firm commitment offerings of equity securities. No Selling Holder may
participate in an Underwritten Offering unless such Selling Holder agrees to sell its Registrable
Securities on the basis provided in such underwriting agreement and completes and executes all
questionnaires, powers of attorney, indemnities and other documents reasonably required under the
terms of such underwriting agreement. Each Selling Holder may, at its option, require that any or
all of the representations and warranties by, and the other agreements on the part of, the
Partnership to and for the benefit of such underwriters also be made to and for such Selling
Holder’s benefit and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement also be conditions precedent to its obligations. No
Selling Holder shall be required to make any representations or warranties to or agreements with
the Partnership or the underwriters other than representations, warranties or agreements regarding
such Selling Holder, its authority to enter into such underwriting agreement and to sell, and its
ownership of the securities being registered on its behalf and its intended method of distribution
and any other representation required by law. If any Selling Holder disapproves of the terms of an
Underwritten Offering, such Selling Holder may elect to withdraw therefrom by notice to the
Partnership and the Managing Underwriter; provided, however, that such withdrawal must be made at
least one Business Day prior to the time of pricing of such Underwritten Offering to be effective.
No such withdrawal or abandonment shall affect the Partnership’s obligation to pay Registration
Expenses.
(b) Sale Procedures. In connection with its obligations under this Article II, the
Partnership will, as expeditiously as possible:
8
(i) prepare and file with the Commission such amendments and supplements to the
Resale Registration Statement and the prospectus used in connection therewith as may be
necessary to keep the Resale Registration Statement effective for the Effectiveness Period
and as may be necessary to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities covered by the Resale Registration
Statement;
(ii) furnish to each Selling Holder (A) as far in advance as reasonably practicable
before filing the Resale Registration Statement or any supplement or amendment thereto,
upon request, copies of reasonably complete drafts of all such documents proposed to be
filed (including exhibits and each document incorporated by reference therein to the
extent then required by the rules and regulations of the Commission), and provide each
such Selling Holder the opportunity to object to any information pertaining to such
Selling Holder and its plan of distribution that is contained therein and make the
corrections reasonably requested by such Selling Holder with respect to such information
prior to filing the Resale Registration Statement or supplement or amendment thereto, and
(B) such number of copies of the Resale Registration Statement and the prospectus included
therein and any supplements and amendments thereto as such Selling Holder may reasonably
request in order to facilitate the public sale or other disposition of the Registrable
Securities covered by such Resale Registration Statement;
(iii) if applicable, use its commercially reasonable efforts to register or qualify
the Registrable Securities covered by the Resale Registration Statement under the
securities or blue sky laws of such jurisdictions as the Selling Holders shall reasonably
request; provided, however, that the Partnership will not be required to qualify generally
to transact business in any jurisdiction where it is not then required to so qualify or to
take any action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(iv) promptly notify each Selling Holder, at any time when a prospectus relating
thereto is required to be delivered by any of them under the Securities Act, of (A) the
filing of the Resale Registration Statement or any prospectus or prospectus supplement to
be used in connection therewith, or any amendment or supplement thereto, and, with respect
to such Resale Registration Statement or any post-effective amendment thereto, when the
same has become effective; and (B) the receipt of any written comments from the Commission
with respect to any filing referred to in clause (A) and any written request by the
Commission for amendments or supplements to the Resale Registration Statement or any
prospectus or prospectus supplement thereto;
(v) immediately notify each Selling Holder, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of (A) the happening of any
event as a result of which the prospectus or prospectus supplement contained in the Resale
Registration Statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any
9
prospectus contained therein, in the light of the circumstances under which a
statement is made); (B) the issuance or express threat of issuance by the Commission of
any stop order suspending the effectiveness of the Resale Registration Statement, or the
initiation of any proceedings for that purpose; or (C) the receipt by the Partnership of
any notification with respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
Following the provision of such notice, the Partnership agrees to as promptly as
practicable amend or supplement the prospectus or prospectus supplement or take other
appropriate action so that the prospectus or prospectus supplement does not include an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light of the
circumstances then existing and to take such other commercially reasonable action as is
necessary to remove a stop order, suspension, threat thereof or proceedings related
thereto;
(vi) upon request and subject to appropriate confidentiality obligations, furnish to
each Selling Holder copies of any and all transmittal letters or other correspondence with
the Commission or any other governmental agency or self-regulatory body or other body
having jurisdiction (including any domestic or foreign securities exchange) relating to
such offering of Registrable Securities;
(vii) otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(viii) cause all such Registrable Securities registered pursuant to this Agreement to
be listed on each securities exchange or nationally recognized quotation system on which
similar securities issued by the Partnership are then listed;
(ix) use its commercially reasonable efforts to cause the Registrable Securities to
be registered with or approved by such other governmental agencies or authorities as may
be necessary by virtue of the business and operations of the Partnership to enable the
Selling Holders to consummate the disposition of such Registrable Securities;
(x) provide a transfer agent and registrar for all Registrable Securities covered by
such registration statement not later than the effective date of such registration
statement;
(xi) if requested by a Selling Holder, (i) incorporate in a prospectus supplement or
post-effective amendment such information as such Selling Holder reasonably requests to be
included therein relating to the sale and distribution of Registrable Securities,
including information with respect to the number of Registrable Securities being offered
or sold, the purchase price being paid therefor and any other terms of the offering of the
Registrable Securities to be sold in such offering; and (ii)
10
make all required filings of such prospectus supplement or post-effective amendment
after being notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment; and
(xii) The Partnership agrees that, if any Holder could reasonably be deemed to be an
“underwriter,” as defined in Section 2(a)(11) of the Securities Act, in connection with
the Resale Registration Statement and any amendment or supplement thereof, then the
Partnership will reasonably cooperate with such Holder in allowing such Holder to conduct
customary “underwriter’s due diligence” with respect to the Partnership and satisfy its
obligations in respect thereof. In addition, at any Holder’s request, the Partnership
will furnish to such Holder, on the date of the effectiveness of the Resale Registration
Statement and thereafter from time to time on such dates as such Holder may reasonably
request, (A) a “cold comfort” letter, dated such date, from the Partnership’s independent
certified public accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering, addressed
to such Holder, (B) an opinion, dated as of such date, of counsel representing the
Partnership for purposes of the Resale Registration Statement, in form, scope and
substance as is customarily given in an underwritten public offering, including a standard
“10b-5” opinion for such offering, addressed to such Holder and (C) a standard officer’s
certificate from the chief executive officer or chief financial officer, or other officers
serving such functions, of the General Partner addressed to the Holder. Each Selling
Holder, upon receipt of notice from the Partnership of the happening of any event of the
kind described in subsection (v) of Section 2.3(b), shall forthwith discontinue offers and
sales of the Registrable Securities until such Selling Holder’s receipt of the copies of
the supplemented or amended prospectus contemplated by subsection (v) of Section 2.3(b) or
until it is advised in writing by the Partnership that the use of the prospectus may be
resumed and has received copies of any additional or supplemental filings incorporated by
reference in the prospectus, and, if so directed by the Partnership, such Selling Holder
will, or will request the managing underwriter or underwriters, if any, to deliver to the
Partnership (at the Partnership’s expense) all copies in their possession or control,
other than permanent file copies then in such Selling Holder’s possession, of the
prospectus covering such Registrable Securities current at the time of receipt of such
notice.
Section 2.4 Cooperation by Holders. The Partnership shall have no obligation to
include Registrable Securities of a Holder in the Resale Registration Statement who has failed to
timely furnish such information that the Partnership determines, after consultation with its
counsel, is reasonably required in order for the registration statement or prospectus supplement,
as applicable, to comply with the Securities Act, including the execution of the initial Selling
Unitholder Notice and Questionnaire attached at Exhibit A to this Agreement by the date specified
thereon.
Section 2.5 Restrictions on Public Sale by Holders of Registrable Securities. For so
long as the Purchased Units are Registrable Securities, each Holder agrees that it will not sell
any Common Units or other equity securities of the Partnership for a period of up to 60 days
following the pricing date of an Underwritten Offering of equity securities by the Partnership;
provided, however, that the duration of the foregoing restrictions shall be no longer than the
11
duration of the shortest restriction imposed by the underwriters on the officers, directors or
any Affiliate of the Partnership. In addition, the provisions of this Section 2.5 shall not apply
with respect to a Holder that (i) owns less than $20.0 million of Registrable Securities based on
the Purchased Unit Price, or (ii) has delivered a Piggyback Opt-Out Notice or a Resale Opt-Out
Notice to the Partnership pursuant to Section 2.2 hereof. Subject to such Holder’s compliance with
its obligations under the U.S. federal securities laws and its internal policies: (a) Holder, for
purposes hereof, shall not be deemed to include any employees, subsidiaries or Affiliates that are
effectively walled off by appropriate “Chinese Wall” information barriers approved by Holder’s
legal or compliance department (and thus have not been privy to any information concerning this
transaction) (a “Walled Off Person”) and (b) the foregoing covenants in this paragraph shall not
apply to any transaction by or on behalf of Holder that was effected by a Walled Off Person in the
ordinary course of trading without the advice or participation of Holder or receipt of confidential
or other information regarding this transaction provided by Holder to such entity.
Section 2.6 Expenses.
(a) Expenses. The Partnership will pay all reasonable Registration Expenses as
determined in good faith. Each Selling Holder shall pay its pro rata share of all Selling Expenses
in connection with any sale of its Registrable Securities hereunder. In addition, except as
otherwise provided in Section 2.7 hereof, the Partnership shall not be responsible for legal fees
incurred by Holders in connection with the exercise of such Holders’ rights hereunder.
(b) Certain Definitions. “Registration Expenses” means all expenses incident
to the Partnership’s performance under or compliance with this Agreement to effect the registration
of Registrable Securities on the Resale Registration Statement pursuant to Section 2.1 and the
disposition of such Registrable Securities, including, without limitation, all registration,
filing, securities exchange listing and NASDAQ fees, all registration, filing, qualification and
other fees and expenses of complying with securities or blue sky laws, fees of the Financial
Industry Regulatory Authority, fees of transfer agents and registrars, all word processing,
duplicating and printing expenses, any transfer taxes and the fees and disbursements of counsel and
independent public accountants for the Partnership, including the expenses of any special audits or
“cold comfort” letters required by or incident to such performance and compliance. “Selling
Expenses” means all underwriting fees, discounts and selling commissions or similar fees or
arrangements allocable to the sale of the Registrable Securities.
Section 2.7 Indemnification.
(a) By the Partnership. In the event of a registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, the Partnership will indemnify and hold
harmless each Selling Holder thereunder, its directors, officers, employees and agents and each
Person, if any, who controls such Selling Holder and its directors, officers, employees or agents
(collectively, the “Selling Holder Indemnified Persons”), against any losses, claims,
damages, expenses or liabilities (including reasonable attorneys’ fees and expenses) (collectively,
“Losses”), joint or several, to which such Selling Holder Indemnified Person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact (in the case
12
of any prospectus, in light of the circumstances under which such statement is made) contained
in the Resale Registration Statement, any preliminary prospectus, prospectus supplement, free
writing prospectus or final prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not misleading, and will
reimburse each such Selling Holder Indemnified Person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such Loss or actions or
proceedings; provided, however, that the Partnership will not be liable in any such case if and to
the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information furnished by such
Selling Holder Indemnified Person in writing specifically for use in the Resale Registration
Statement, or prospectus supplement, as applicable. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Selling Holder Indemnified
Person, and shall survive the transfer of such securities by such Selling Holder.
(b) By Each Selling Holder. Each Selling Holder agrees severally and not jointly to
indemnify and hold harmless the Partnership, the General Partner and each of their respective
directors, officers, employees and agents and each Person, if any, who controls the Partnership
within the meaning of the Securities Act or of the Exchange Act, and its directors, officers,
employees and agents, to the same extent as the foregoing indemnity from the Partnership to the
Selling Holders, but only with respect to information regarding such Selling Holder furnished in
writing by or on behalf of such Selling Holder expressly for inclusion in the Resale Registration
Statement, any preliminary prospectus, prospectus supplement, free writing prospectus or final
prospectus contained therein, or any amendment or supplement thereof; provided, however, that the
liability of each Selling Holder shall not be greater in amount than the dollar amount of the
proceeds (net of any Selling Expenses) received by such Selling Holder from the sale of the
Registrable Securities giving rise to such indemnification.
(c) Notice. Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party other than under this Section 2.7. In any action brought
against any indemnified party, it shall notify the indemnifying party of the commencement thereof.
The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified
party and, after notice from the indemnifying party to such indemnified party of its election so to
assume and undertake the defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 2.7 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; provided, however, that, (i) if the
indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the
indemnified party or (ii) if the defendants in any such action include both the indemnified party
and the indemnifying party and counsel to the indemnified party shall have concluded that there may
be reasonable defenses available to the indemnified
13
party that are different from or additional to those available to the indemnifying party, or
if the interests of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, then the indemnified party shall have the right to select a separate
counsel and to assume such legal defense and otherwise to participate in the defense of such
action, with the reasonable expenses and fees of such separate counsel and other reasonable
expenses related to such participation to be reimbursed by the indemnifying party (provided
appropriate documentation for such expense is also submitted with such notice) as incurred;
provided however, that the indemnified party will be required to repay the
indemnifying party any amounts paid to it for which it is determined the indemnified party was not
otherwise entitled within five calendar days of such determination. Notwithstanding any other
provision of this Agreement, no indemnifying party shall settle any action brought against any
indemnified party with respect to which such indemnified party is entitled to indemnification
hereunder without the consent of the indemnified party, unless the settlement thereof imposes no
liability or obligation on, and includes a complete and unconditional release from all liability
of, the indemnified party.
(d) Contribution. If the indemnification provided for in this Section 2.7 is held by
a court or government agency of competent jurisdiction to be unavailable to any indemnified party
or is insufficient to hold them harmless in respect of any Losses, then each such indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Loss in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of such indemnified party
on the other in connection with the statements or omissions which resulted in such Losses, as well
as any other relevant equitable considerations; provided, however, that in no event shall such
Selling Holder be required to contribute an aggregate amount in excess of the dollar amount of
proceeds (net of Selling Expenses) received by such Selling Holder from the sale of Registrable
Securities giving rise to such indemnification. The relative fault of the indemnifying party on
the one hand and the indemnified party on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact has been made by, or relates to, information supplied by
such party, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined by pro rata
allocation or by any other method of allocation which does not take account of the equitable
considerations referred to herein. The amount paid by an indemnified party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to include any legal and
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any Loss which is the subject of this paragraph. 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 is not guilty of such fraudulent misrepresentation.
(e) Other Indemnification. The provisions of this Section 2.7 shall be in addition to
any other rights to indemnification or contribution which an indemnified party may have pursuant to
law, equity, contract or otherwise.
Section 2.8 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the Registrable
14
Securities to the public without registration, the Partnership agrees to use its commercially
reasonable efforts to:
(a) Make and keep public information regarding the Partnership available, as those terms are
understood and defined in Rule 144 of the Securities Act, at all times from and after the date
hereof;
(b) File with the Commission in a timely manner all reports and other documents required of
the Partnership under the Securities Act and the Exchange Act at all times from and after the date
hereof; and
(c) So long as a Holder owns any Registrable Securities, furnish, unless otherwise available
at no charge by access electronically to the Commission’s XXXXX filing system, to such Holder
forthwith upon request a copy of the most recent annual or quarterly report of the Partnership, and
such other reports and documents so filed with the Commission as such Holder may reasonably request
in availing itself of any rule or regulation of the Commission allowing such Holder to sell any
such securities without registration.
If the Partnership fails for any reason to comply with the provisions of this Section 2.8 during
the period beginning on the date which is six months from the Closing Date and ending one year from
the Closing Date which prohibits a Holder from selling Purchased Units, then held by such Holder
pursuant to Rule 144 under the Securities Act for more than ten (10) days in the aggregate, then
the Partnership shall pay to each such Holder an amount equal to 0.25% times the Liquidated Damages
Multiplier for each 30 days in excess of such 5 days during which such Holder is unable to sell the
Purchased Units, with such payment amount increasing by an additional amount equal to 0.25% times
the Liquidated Damages Multiplier per additional 30 days up to a maximum of 1% times the Liquidated
Damages Multiplier; provided, that the aggregate amount of Liquidated Damages payable by the
Partnership per Purchased Unit may not exceed 5.0% of the Purchased Unit Price. All of the
provisions in Section 2.1(b) with respect to the payment of the Liquidated Damages, including but
not limited to the ability to issue additional Common Units in lieu of cash payments, the time
period in which payments are due, and the determination of the number of Common Units to issue as
Liquidated Damages shall be applicable to the Liquidated Damages payable hereunder.
Section 2.9 Transfer or Assignment of Registration Rights. The rights to cause the
Partnership to register Registrable Securities granted to the Purchasers by the Partnership under
this Article II will be transferable or assignable by each Purchaser to an Affiliate of such
Purchaser or to a transferee or assignee of Registrable Securities, provided (a) the amount of
Registrable Securities transferred or assigned to a Person who is not an Affiliate must represent
at least $20.0 million, based on the Purchased Unit Price, (b) the Partnership is given written
notice prior to any such transfer or assignment, stating the name and address of each such
transferee and identifying the securities with respect to which such registration rights are being
transferred or assigned, and (c) each such transferee agrees in writing to undertake responsibility
for its portion of the obligations of such Purchaser under this Agreement.
Section 2.10 Limitation on Subsequent Registration Rights. From and after the date
hereof, the Partnership shall not, without the prior written consent of the Holders of a majority
of
15
the outstanding Registrable Securities, enter into any agreement with any current or future
holder of any securities of the Partnership that would allow such current or future holder to
require the Partnership to include securities in any registration statement filed by the
Partnership on a basis other than pari passu with, or expressly subordinate to, the priority rights
set forth in Section 2.2(b) granted to the Holders of Registrable Securities hereunder.
ARTICLE III.
MISCELLANEOUS
MISCELLANEOUS
Section 3.1 Communications. All notices and demands provided for hereunder shall be
in writing and shall be given by registered or certified mail, return receipt requested, telecopy,
air courier guaranteeing overnight delivery or personal delivery to the following addresses:
(a) If to Xxxxx Xxxxxxxx MLP Investment Company, Xxxxx Xxxxxxxx Energy Total Return Fund,
Inc., Xxxxx Xxxxxxxx Midstream/Energy Fund, Inc., Xxxxx Xxxxxxxx Energy Development Company, Xxxxx
Xxxxxxxx Capital Income Partners (QP), LP, Xxxxx Xxxxxxxx Midstream Institutional Fund, LP, Xxxxx
Xxxxxxxx MLP Fund, LP or Xxxxx Xxxxxxxx Non-Traditional Investments, LP:
0000 Xxxxxx xx xxx Xxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxxxxxxx@xxxxxxxxxxxx.xxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxxxxxxx@xxxxxxxxxxxx.xxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxx@xxxxxxxxxxxx.xxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxx@xxxxxxxxxxxx.xxx
with a copy to:
Xxxxx Xxxxx L.L.P.
00 Xxx Xxxxxxx Xxxx., Xxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Internet electronic mail: xxxxx.xxxxx@xxxxxxxxxx.xxx
00 Xxx Xxxxxxx Xxxx., Xxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Internet electronic mail: xxxxx.xxxxx@xxxxxxxxxx.xxx
(b) If to Tortoise Energy Infrastructure Corporation, Tortoise Energy Capital Corporation,
Tortoise North American Energy Corporation, Tortoise MLP Fund, Inc. or Tortoise Capital Resources
Corporation:
16
Tortoise Capital Advisors, LLC
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
with a copy to:
Husch Xxxxxxxxx LLP
0000 Xxxx xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000.0000
Internet electronic mail: xxxx.xxxxxxx@xxxxxxxxxxxxxx.xxx
0000 Xxxx xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000.0000
Internet electronic mail: xxxx.xxxxxxx@xxxxxxxxxxxxxx.xxx
(c) If to Fiduciary/Claymore MLP Opportunity Fund, Nuveen Energy MLP Total Return Fund, MLP &
Strategic Equity Fund or Teachers’ Retirement System of Oklahoma:
Fiduciary Asset Management LLC
0000 Xxxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxx@xxxxx.xxx
0000 Xxxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxx@xxxxx.xxx
with a copy to:
Xxxxx Xxxxx L.L.P.
00 Xxx Xxxxxxx Xxxx., Xxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Internet electronic mail: xxxxx.xxxxx@xxxxxxxxxx.xxx
00 Xxx Xxxxxxx Xxxx., Xxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Internet electronic mail: xxxxx.xxxxx@xxxxxxxxxx.xxx
(d) If to Regency:
Regency Energy Partners LP
0000 Xxxxx Xxxxxx, Xxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Executive Vice President and Chief Legal Officer
Facsimile: (000) 000-0000
Internet electronic mail: xxxx.xxxxx@xxxxxxxxxx.xxx
0000 Xxxxx Xxxxxx, Xxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Executive Vice President and Chief Legal Officer
Facsimile: (000) 000-0000
Internet electronic mail: xxxx.xxxxx@xxxxxxxxxx.xxx
17
with a copy to:
Xxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxxxxx@xxxxxxxxxx.xxx
000 Xxxxxxxxx Xxxxxx, Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
Internet electronic mail: xxxxxxxxx@xxxxxxxxxx.xxx
or to such other address as Regency or such Purchaser may designate in writing. All notices and
communications shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; upon actual receipt if sent by certified or registered mail, return receipt
requested, or regular mail, if mailed; upon actual receipt of the overnight courier copy, if sent
via facsimile; and upon actual receipt when delivered to an air courier guaranteeing overnight
delivery.
Section 3.2 Successor and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties, including subsequent Holders of
Registrable Securities to the extent permitted herein.
Section 3.3 Assignment of Rights. All or any portion of the rights and obligations of
any Purchaser under this Agreement may be transferred or assigned by such Purchaser in accordance
with Section 2.9 hereof.
Section 3.4 Recapitalization, Exchanges, Etc. Affecting the Units. The provisions of
this Agreement shall apply to the full extent set forth herein with respect to any and all units of
the Partnership or any successor or assign of the Partnership (whether by merger, consolidation,
sale of assets or otherwise) which may be issued in respect of, in exchange for or in substitution
of, the Registrable Securities, and shall be appropriately adjusted for combinations, unit splits,
recapitalizations and the like occurring after the date of this Agreement.
Section 3.5 Aggregation of Restricted Units. All Registrable Securities held or
acquired by Persons who are Affiliates of one another shall be aggregated together for the purpose
of determining the availability of any rights and applicability of any obligations under this
Agreement.
Section 3.6 Specific Performance. Damages in the event of breach of this Agreement by
a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed that
each such Person, in addition to and without limiting any other remedy or right it may have, will
have the right to an injunction or other equitable relief in any court of competent jurisdiction,
enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of
the parties hereto hereby waives any and all defenses it may have on the ground of lack of
jurisdiction or competence of the court to grant such an injunction or other equitable relief. The
existence of this right will not preclude any such Person from pursuing any other rights and
remedies at law or in equity which such Person may have.
18
Section 3.7 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 3.8 Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 3.9 Governing Law. The Laws of the State of Texas shall govern this Agreement
without regard to principles of conflicts of Laws that would apply the substantive law of some
other jurisdiction.
Section 3.10 Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof or affecting or impairing the validity or enforceability of such provision in any other
jurisdiction.
Section 3.11 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the rights granted by the Partnership set forth herein.
This Agreement and the Purchase Agreement supersede all prior agreements and understandings
between the parties with respect to such subject matter.
Section 3.12 Amendment. This Agreement may be amended only by means of a written
amendment signed by the Partnership and the Holders of a majority of the then outstanding
Registrable Securities; provided, however, that no such amendment shall materially and adversely
affect the rights of any Holder hereunder without the consent of such Holder.
Section 3.13 No Presumption. If any claim is made by a party relating to any
conflict, omission, or ambiguity in this Agreement, no presumption or burden of proof or persuasion
shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a
particular party or its counsel.
Section 3.14 Obligations Limited to Parties to Agreement. Each of the Parties hereto
covenants, agrees and acknowledges that no Person other than the Purchasers (and their permitted
assignees) and the Partnership shall have any obligation hereunder and that, notwithstanding that
one or more of the Purchasers may be a corporation, partnership or limited liability company, no
recourse under this Agreement or under any documents or instruments delivered in connection
herewith or therewith shall be had against any former, current or future director, officer,
employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of
the Purchasers or any former, current or future director, officer, employee, agent, general or
limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any
applicable Law, it being expressly agreed and acknowledged that
19
no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by
any former, current or future director, officer, employee, agent, general or limited partner,
manager, member, stockholder or Affiliate of any of the Purchasers or any former, current or future
director, officer, employee, agent, general or limited partner, manager, member, stockholder or
Affiliate of any of the foregoing, as such, for any obligations of the Purchasers under this
Agreement or any documents or instruments delivered in connection herewith or therewith or for any
claim based on, in respect of or by reason of such obligation or its creation, except in each case
for any assignee of a Purchaser hereunder.
Section 3.15 Interpretation. Article, Exhibit and Section references in this
Agreement are references to the corresponding Article and Section to this Agreement, unless
otherwise specified. All references to instruments, documents, contracts and agreements are
references to such instruments, documents, contracts and agreements as the same may be amended,
supplemented and otherwise modified from time to time, unless otherwise specified. The word
“including” shall mean “including but not limited to.” Whenever any determination, consent or
approval is to be made or given by a Purchaser under this Agreement, such action shall be in such
Purchaser’s sole discretion unless otherwise specified.
Section 3.16 Equal Treatment of Purchasers. Neither the Partnership nor any of its
Affiliates shall, directly or indirectly, offer to pay, pay or cause to be paid any consideration,
whether by way of interest, fee, payment for the redemptions or exchange of Registrable Securities,
or otherwise, to any holder of Registrable Securities for or as an inducement to, or in connection
with solicitation of, any consent, waiver or amendment of any terms or provisions of the
Registrable Securities or this Agreement or any of the other agreements referred to in this
Agreement unless such consideration is offered to all Holders.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| REGENCY ENERGY PARTNERS LP | ||||||
| By: | Regency GP LP, its general partner | |||||
| By: Regency GP LLC, its general partner | ||||||
| By: | /s/Xxxxxx X. Xxxx
|
|||||
| Executive Vice President and Chief Financial Officer | ||||||
Signature
Page to Registration Rights Agreement
| XXXXX XXXXXXXX MLP INVESTMENT COMPANY | ||||||
| By: KA Fund Advisors, LLC, as its investment manager | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxx
|
|||||
| Title: | Senior Managing Director | |||||
| XXXXX XXXXXXXX ENERGY TOTAL RETURN FUND, INC. | ||||||
| By: KA Fund Advisors, LLC, as its investment manager | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxx
|
|||||
| Title: | Senior Managing Director | |||||
| XXXXX XXXXXXXX MIDSTREAM/ENERGY FUND, INC. | ||||||
| By: KA Fund Advisors, LLC, as its investment manager | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxx
|
|||||
| Title: | Senior Managing Director | |||||
| XXXXX XXXXXXXX ENERGY DEVELOPMENT COMPANY | ||||||
| By: KA Fund Advisors, LLC, as its investment manager | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxx
|
|||||
| Title: | Senior Managing Director | |||||
Signature Page to Registration Rights Agreement
| XXXXX XXXXXXXX CAPITAL INCOME PARTNERS (QP), LP | ||||||
| By: Xxxxx Xxxxxxxx Capital Advisors, L.P., as its general partner | ||||||
| By: | /s/ Xxxxx Xxxxxxxxxx
|
|||||
| General Counsel | ||||||
| XXXXX XXXXXXXX MIDSTREAM INSTITUTIONAL FUND, LP | ||||||
| By: Xxxxx Xxxxxxxx Capital Advisors, L.P., as its general partner | ||||||
| By: | /s/ Xxxxx Xxxxxxxxxx
|
|||||
| General Counsel | ||||||
| XXXXX XXXXXXXX MLP FUND, LP | ||||||
| By: Xxxxx Xxxxxxxx Capital Advisors, L.P., as its general partner | ||||||
| By: | /s/ Xxxxx Xxxxxxxxxx
|
|||||
| General Counsel | ||||||
Signature Page to Registration Rights Agreement
| XXXXX XXXXXXXX NON-TRADITIONAL INVESTMENTS, LP | ||||||
| By: Xxxxx Xxxxxxxx Capital Advisors, L.P., as its general partner | ||||||
| By: | /s/ Xxxxx Xxxxxxxxxx
|
|||||
| General Counsel | ||||||
Signature Page to Registration Rights Agreement
| TORTOISE ENERGY INFRASTRUCTURE CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Senior Vice President | ||||
| TORTOISE ENERGY CAPITAL CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Senior Vice President | ||||
| TORTOISE NORTH AMERICAN ENERGY CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Senior Vice President | ||||
| TORTOISE MLP FUND, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Senior Vice President | ||||
| TORTOISE CAPITAL RESOURCES CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| Senior Vice President | ||||
Signature Page to Registration Rights Agreement
| FIDUCIARY/CLAYMORE MLP OPPORTUNITY FUND |
||||
| By: | /s/ Quinn T. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Vice President | ||||
| NUVEEN ENERGY MLP TOTAL RETURN FUND |
||||
| By: | /s/ Quinn T. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Portfolio Manager | ||||
| MLP & STRATEGIC EQUITY FUND INC. |
||||
| By: | /s/ Quinn T. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Portfolio Manager | ||||
| TEACHERS’ RETIREMENT SYSTEM OF OKLAHOMA |
||||
| By: | /s/ Quinn T. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Portfolio Manager | ||||
Signature Page to Registration Rights Agreement
