Exhibit 4.3
FOUNDERS REGISTRATION RIGHTS AGREEMENT
MARCH 15, 2006
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FOUNDERS REGISTRATION RIGHTS AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS
1.1 Defined Terms.............................................................. 2
ARTICLE 2
REGISTRATION RIGHTS
2.1 Private Placement Resale Registration...................................... 6
2.2 Demand Registration........................................................ 7
2.3 Piggyback Registration..................................................... 11
2.4 Underwritten Offerings..................................................... 12
2.5 Postponements.............................................................. 13
ARTICLE 3
REGISTRATION PROCEDURES
3.1 Obligations of the MLP..................................................... 14
3.2 Seller Information......................................................... 18
3.3 Notice to Discontinue...................................................... 18
ARTICLE 4
REGISTRATION EXPENSES
ARTICLE 5
OTHER AGREEMENTS
5.1 Free Writing Prospectus.................................................... 19
5.2 Agreement Restricting Sale of Units........................................ 19
ARTICLE 6
INDEMNIFICATION
6.1 Indemnification by the MLP................................................. 20
6.2 Indemnification by Holders................................................. 21
6.3 Conduct of Indemnification Proceedings..................................... 21
6.4 Contribution............................................................... 22
6.5 Other Indemnification...................................................... 23
6.6 Indemnification Payments................................................... 23
ARTICLE 7
COMPLIANCE WITH RULE 144
ARTICLE 8
MISCELLANEOUS
8.1 Notices.................................................................... 23
8.2 Assignment of Rights....................................................... 24
8.3 Limitation of Rights....................................................... 25
8.4 Recapitalization, Exchanges, etc. Affecting the Units...................... 25
8.5 Specific Performance....................................................... 25
8.6 Counterparts............................................................... 25
8.7 Headings................................................................... 25
8.8 Governing Law.............................................................. 25
8.9 Severability of Provisions................................................. 25
8.10 Entire Agreement........................................................... 25
8.11 Amendment.................................................................. 25
8.12 No Presumption............................................................. 25
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FOUNDERS REGISTRATION RIGHTS AGREEMENT
This FOUNDERS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered
into on the 15th day of March, 2006, but effective for all purposes as of the
Closing Date (the "Effective Date") by and among Moriah Properties, Ltd., a
Texas limited partnership ("Moriah"), DAB Resources, Ltd., a Texas limited
partnership ("DAB Resources"), Brothers Production Properties, Ltd., a Texas
limited partnership ("Brothers"), Brothers Production Company, Inc., a Texas
corporation ("Brothers Production"), Brothers Operating Company, Inc., a Texas
corporation ("Brothers Operating"), J&W McGraw Properties, Ltd., a Texas limited
partnership ("J&W Properties"), MBN Properties LP, a Delaware limited
partnership ("MBN Properties"), and H2K Holdings, Ltd., a Texas limited
partnership ("H2K," and with Moriah, DAB, Brothers, Brothers Production,
Brothers Operating, J&W Properties and MBN Properties, the "Limited Partners"),
Newstone Capital, LP, a Texas limited partnership ("Newstone"), Newstone Group
Partners, a Texas general partnership ("Newstone Partners"), Blackstone
Investments I, LP, a Texas limited partnership ("Blackstone I"), Blackstone
Investments II, LP, a Texas limited partnership ("Blackstone II"), Trinity
Equity Partners I, LP, a Texas limited partnership ("Trinity"), SHP Capital LP,
a Texas limited partnership ("SHP"), Legacy Reserves LP, a Delaware limited
partnership (the "MLP"), and Legacy Reserves GP, LLC, a Delaware limited
liability company (the "General Partner"), for itself and on behalf of the MLP
in its capacity as general partner. The above-named entities are sometimes
referred to in this Agreement each as a "Party" and collectively as the
"Parties." Terms that are capitalized but not defined shall have the meanings
assigned to such terms in 0 hereof.
RECITALS
WHEREAS, as of the Effective Date, the MLP has completed a private
placement (the "Private Placement") of units representing limited partner
interests in the MLP ("Units") to the purchasers (the "Investors")
identified in the purchase/placement agreement dated March 6, 2006 between
the MLP and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. ("FBR") (the "Placement
Agreement"); and
WHEREAS, pursuant to the Placement Agreement and as an inducement to
the Investors to purchase the Units in the Private Placement, the MLP has
entered into a Registration Rights Agreement with the Investors (the
"Investors Registration Rights Agreement") providing registration rights
to the Investors as more particularly provided therein; and
WHEREAS, concurrently with the Private Placement, the MLP and the
Limited Partners have entered into an Omnibus Agreement (the "Omnibus
Agreement") setting forth the terms of their agreement and understanding
with respect to the matters more specifically set forth therein; and
WHEREAS, the Omnibus Agreement contemplates that the parties hereto
will execute this Agreement to more fully set forth the registration
rights of the Limited Partners and their successors and assigns including,
without limitation, the Newstone Members.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS. When used in this Agreement, the following terms shall
have the respective meanings set forth below:
"Affiliate" has the meaning specified in Rule 12b-2 under the Exchange
Act. The term "Affiliate" has a correlative meaning.
"Agent" is defined in Section 6.1.
"Agreement" is defined in the introductory paragraph of this Agreement.
"Base Units" is defined in Section 2.1.2(a)
"Blackout Notice" is defined in Section 2.5.
"Blackout Period" is defined in Section 2.5.
"Blackstone I" is defined in the introductory paragraph of this Agreement.
"Blackstone II" is defined in the introductory paragraph of this
Agreement.
"Board" means the board of directors of the General Partner.
"Brothers" is defined in the introductory paragraph of this Agreement.
"Brothers Group" means Brothers, Brothers Production, Brothers Operating,
J&W Properties and each of their respective Permitted Transferees.
"Brothers Operating" is defined in the introductory paragraph of this
Agreement.
"Brothers Production" is defined in the introductory paragraph of this
Agreement.
"Business Day" means with respect to any act to be performed hereunder,
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York or other applicable places where such
act is to occur are authorized or obligated by applicable law, regulation or
executive order to close.
"Claims" is defined in Section 6.1.
"Closing Date" means the date of the closing of the Private Placement.
"Commission" means the Securities and Exchange Commission.
"DAB Resources" is defined in the introductory paragraph of this
Agreement.
"Demand Registration" is defined in Section 2.2.1(a).
"Demand Registration Statement" means a Registration Statement of the MLP
which covers the Registrable Securities requested to be included therein
pursuant to Section 2.2.
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"Effective Date" is defined in the introductory paragraph of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Free Writing Prospectus" means a free writing prospectus, as defined in
Rule 405 under the Securities Act.
"Founders" means Moriah, DAB Resources, Brothers, Brothers Production,
Brothers Operating, J&W Properties, H2K and their respective Permitted
Transferees.
"General Partner" is defined in the introductory paragraph of this
Agreement.
"H2K" is defined in the introductory paragraph of this Agreement.
"Holders" means each of the Limited Partners for so long as it owns any
Registrable Securities and such Limited Partner's Permitted Transferees and
their respective heirs, successors and permitted assigns who acquire or are
otherwise the transferee of the Registrable Securities, directly or indirectly
from a Limited Partner (or any subsequent Holder), for so long as such Permitted
Transferee, heir, successor and permitted assign owns any Registrable
Securities.
"Initiating Holder(s)" means with respect to a particular Demand
Registration, the Holder or Holders who initiated the Request for such
registration.
"Inspector" and "Inspectors" are defined in Section 3.1(g).
"Investors" is defined in the Recitals to this Agreement.
"Investors Registration Rights Agreement" is defined in the Recitals to
this Agreement.
"Investors Registration Statement" is defined in Section 2.1.1.
"Issuer Free Writing Prospectus" means an issuer free writing prospectus,
as defined in Rule 433 under the Securities Act.
"J&W Properties" is defined in the introductory paragraph of this
Agreement.
"Limited Partners" is defined in the introductory paragraph of this
Agreement.
"Majority Holders of the Registration" means with respect to a particular
registration, one or more Holders of Registrable Securities who would hold a
majority of the Registrable Securities to be included in such registration.
"Market Price" means the price of the Units sold in the Private Placement.
"Market Value" of any Units means the amount determined by multiplying the
number of Units for which such determination is being made by the Market Price.
"MBN Properties" is defined in the introductory paragraph of this
Agreement.
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"MBN Properties Partnership Agreement" means the Second Amended and
Restated Agreement of Limited Partnership of MBN Properties, LP.
"MLP" is defined in the introductory paragraph of this Agreement.
"MLP Assets" means the properties or assets, or portion thereof, conveyed,
contributed or otherwise transferred or intended to be conveyed, contributed or
otherwise transferred to any member of the Partnership Group prior to or as of
the Closing Date.
"Moriah" is defined in the introductory paragraph of this Agreement.
"Moriah Group" means Moriah, DAB Resources and each of their respective
Permitted Transferees.
"Newstone" is defined in the introductory paragraph of this Agreement.
"Newstone Group" means Newstone, Newstone Partners, Blackstone I,
Blackstone II, Trinity, SHP and each of their respective Permitted Transferees.
"Newstone Member" means a member of the Newstone Group.
"Newstone Partners" is defined in the introductory paragraph of this
Agreement.
"Omnibus Agreement" is defined in the Recitals to this Agreement.
"Partnership Group" means the MLP, the General Partner, Legacy Reserves
Operating LP, a Texas limited partnership, and Legacy Operating GP, LLC, a Texas
limited liability company.
"Party" and "Parties" are defined in the introductory paragraph of this
Agreement.
"Permitted Free Writing Prospectus" is defined in Section 5.1.
"Permitted Transferees" is defined in Section 8.2.
"Person" means any individual, corporation, company, voluntary
association, partnership, joint venture, trust, limited liability company,
unincorporated organization, government or any agency, instrumentality or
political subdivision thereof, or any other form of entity.
"Piggyback Registration" is defined in Section 2.3.1.
"Piggyback Registration Statement" means a Registration Statement of the
MLP which covers the Registrable Securities requested to be included therein
pursuant to the provisions of Section 2.3.
"Placement Agreement" is defined in the Recitals to this Agreement.
"Private Placement" is defined in the Recitals to this Agreement.
"Private Placement Resale Registration" is defined in Section 2.1.2(b).
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"Prospectus" means the prospectus included in the Registration Statement
at each such time as the Registration Statement is filed with the Commission and
at the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereof,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
"Registration Expenses" is defined in Article 4 of this Agreement.
"Registrable Securities" means (i) the Units beneficially owned by the
Limited Partners on the Effective Date, (ii) the Units beneficially owned by the
Permitted Transferees on the Effective Date and any Units the beneficial
ownership of which is subsequently acquired by a Permitted Transferee and (iii)
any other securities of the MLP (or successor or assign of the MLP, whether by
merger, consolidation, sale of assets or otherwise) which may be issued or
issuable with respect to, in exchange for, or in substitution of, any Units
referenced in clauses (i) and (ii) whether by reason of any dividend or split,
combination of securities, merger, consolidation, recapitalization,
reclassification, reorganization, sale of assets or similar transaction. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (A) a Registration Statement with respect to the
sale of such securities shall have been declared effective under the Securities
Act and such securities shall have been disposed of in accordance with such
Registration Statement, (B) such securities are sold pursuant to Rule 144 (or
any successor provision) under the Securities Act, (C) such securities have been
otherwise transferred and subsequent public distribution of them shall not
require registration under the Securities Act or (D) such securities shall cease
to be outstanding.
"Registration Statement" means a registration statement of the MLP
concerning the sale of its securities to the public, on an appropriate form
under the Securities Act, including the Prospectus included therein, all
amendments thereof and supplements thereto (including post-effective amendments)
and all exhibits and all material incorporated therein.
"Request" is defined in Section 2.2.1(a).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" is defined in Section 2.2.1(a).
"SHP" is defined in the introductory paragraph of this Agreement.
"Transfer" means any sale, assignment, gift, pledge, encumbrance,
hypothecation, mortgage, exchange or any other disposition by law or otherwise.
"Trinity" is defined in the introductory paragraph of this Agreement.
"Underwritten Offering" means a sale of Units to an underwriter or
underwriters for reoffering to the public.
"Units" is defined in the Recitals of this Agreement.
"Withdrawn Demand Registration" is defined in Section 2.2.1(b).
"Withdrawn Request" is defined in Section 2.2.1(b).
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ARTICLE 2
REGISTRATION RIGHTS
2.1 PRIVATE PLACEMENT RESALE REGISTRATION.
2.1.1 Investors Registration Statement. Pursuant to the Investors
Registration Rights Agreement, the MLP has agreed to file with the Commission
two shelf Registration Statements on Form S-1 or such other form under the
Securities Act then available to the MLP providing for the resale of any Units
acquired in the Private Placement pursuant to Rule 415 from time to time by the
Investors (collectively, the "Investors Registration Statement"). Such Investors
Registration Statement shall provide for resale from time to time, and pursuant
to any method or combination of methods legally available (including, without
limitation, an Underwritten Offering, a direct sale to purchasers or a sale
through brokers or agents) to the Investors. Notwithstanding anything in this
Agreement to the contrary, the MLP shall not file any registration statement on
behalf of or for the benefit of any Holder unless it has filed or files
concurrently the Investors Registration Statement, and the MLP shall not submit
an acceleration request to the Commission requesting effectiveness of any such
registration statement unless it has submitted or concurrently submits an
acceleration request to the Commission requesting effectiveness of the Investors
Registration Statement and reasonably believes based on communications with the
Commission that such request with respect to the Investors Registration
Statement will be granted.
2.1.2 Right to Piggyback.
(a) Except to the extent otherwise prohibited or restricted pursuant
to the Investors Registration Rights Agreement, and in any event subject
to the provisions of Section 2.1.3, and unless otherwise notified in
writing by a Founder, the MLP shall include in such Investors Registration
Statement the Base Units held by each Founder. If a Founder notifies the
MLP that it does not want to include its Base Units in the Investors
Registration Statement, such Founder shall nevertheless continue to have
the right to include any Registrable Securities in any subsequent
Registration Statement or Registration Statements as may be filed by the
MLP with respect to offerings of its securities, all upon the terms and
conditions set forth herein. For purposes of this Agreement, the term
"Base Units" when used with respect to any Founder shall mean the number
of Units held by such Founder that constitute Base Units as such term is
defined in the MBN Properties Partnership Agreement.
(b) Except to the extent otherwise prohibited or restricted pursuant
to the Investors Registration Rights Agreement, in addition to the rights
granted to the Founders in Section 2.1.2(a) with respect to the Base
Units, and subject to the provisions of Section 2.1.3, all Holders of
Registrable Securities shall have the right to participate in the
registration required to be effected by the MLP as described in Section
2.1.1 (the "Private Placement Resale Registration") in accordance with the
provisions of Section 2.3.
2.1.3 Priority on Private Placement Resale Registration.
(a) If the Private Placement Resale Registration is an Underwritten
Offering and the sole or lead managing underwriter advises the MLP or the
Investors that the total number of Units which the Investors and Base
Units which the Founders intend to include in the Private Placement Resale
Registration exceeds the number which can be sold in such offering without
being likely to have an adverse effect on the price, timing or
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distribution of such Units offered or the market for such Units, then the
aggregate number of Units (including Base Units) to be included in the
Private Placement Resale Registration shall include all of the Units that
the Investors intend to include in such Private Placement Resale
Registration, plus the number of Base Units that such sole or lead
managing underwriter advises the MLP or Investors can be sold without
having such adverse effect, with such number of Base Units to be allocated
pro rata among the selling Founders and based, for each such selling
Founder, on the percentage derived by dividing (i) the number of Base
Units proposed to be sold by such Founder in such offering, by (ii) the
aggregate number of Base Units proposed to be sold by the selling
Founders.
(b) If in accordance with Section 2.3 any Holders, including the
Founders, request the inclusion in the Private Placement Resale
Registration of any Registrable Securities (other than Base Units), any
such Holder's right to participate therein with respect to such
Registrable Securities shall be subject to the limitations and provisions
of Section 2.3.2.
2.1.4 No Effect on Demand Registration. No registration or designation of
Base Units effected pursuant to this Section 2.1 shall be deemed to have been
effected pursuant to Section 2.2 or shall relieve the MLP of its obligation
under Section 2.2.
2.2 DEMAND REGISTRATION.
2.2.1 Request for Registration.
(a) Subject to the terms of this Agreement, each of the Moriah
Group, the Brothers Group and the Newstone Group at any time commencing on
or after the third (3rd) month anniversary of the Closing Date, may
request registration by the MLP under the Securities Act of all or a part
of such group's Registrable Securities. Any such registration requested
pursuant to this Section 2.2 is referred to herein as a "Demand
Registration." Any request for a Demand Registration (each, a "Request")
shall specify (i) the amount of Registrable Securities proposed to be
registered (which such amount must be greater than 10% of the Registrable
Securities owned by such Party immediately following the Private
Placement), and (ii) the intended method or methods and plan of
distribution thereof, including whether such requested registration is to
involve an Underwritten Offering. As promptly as practicable, but no later
than ten (10) days after receipt of a Request, the MLP shall give written
notice of such requested registration to all Holders of Registrable
Securities. Subject to Section 2.2.2, the MLP shall include in a Demand
Registration (i) the Registrable Securities intended to be disposed of by
the Initiating Holders and (ii) the Registrable Securities intended to be
disposed of by any other Holder which shall have made a written request
(which request shall specify the amount of Registrable Securities to be
registered and the intended method of disposition thereof) to the MLP for
inclusion thereof in such registration within 20 days after the receipt of
such written notice from the MLP. Promptly following such a Request, the
MLP shall thereafter use its commercially reasonable best efforts to file
with the Commission, or otherwise designate an existing filing as, a
Demand Registration Statement providing for the registration under the
Securities Act of the Registrable Securities which the MLP has been so
requested to register by all such Holders, to the extent necessary to
permit the disposition of such Registrable Securities to be so registered
in accordance with the intended methods of disposition thereof requested
in such Request or further Request (including, without limitation, by
means of a shelf registration pursuant to Rule 415 under the Securities
Act (a "Shelf Registration")
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if so requested and if the MLP is then eligible to use such a
registration). The MLP shall thereafter (i) use its commercially
reasonable best efforts to cause such Demand Registration Statement
promptly to be declared effective under (A) the Securities Act and (B) the
"blue sky" laws of such jurisdictions as any seller of Registrable
Securities being registered under such Demand Registration Statement or
any other underwriter, if any, reasonably requests; or (ii) otherwise make
available for use by such Holders a previously filed effective
Registration Statement for the offer and sale of the Registrable
Securities.
For purposes of initiating any Demand Registration:
(i) the Moriah Group may only act through ▇▇▇▇ ▇. ▇▇▇▇▇, or if
▇▇▇▇ ▇. ▇▇▇▇▇ is unable to act, through ▇▇▇▇ ▇. ▇▇▇▇▇, or if ▇▇▇▇ ▇.
▇▇▇▇▇ is unable to act, through such person as may be selected by
the holders of a majority of the Units held by all of the members of
the Moriah Group; provided, that notice thereof is given to the MLP;
(ii) the Brothers Group may only act through ▇▇▇▇ ▇. ▇▇▇▇▇▇,
or if ▇▇▇▇ ▇. ▇▇▇▇▇▇ is unable to act, through such person as may be
selected by the holders of a majority of the Units held by all of
the members of the Brothers Group; provided, that notice thereof is
given to the MLP; and
(iii) the Newstone Group may only act through Newstone, or if
Newstone is unable to act, through such person as may be selected by
the holders of a majority of the Units held by all of the members of
the Newstone Group; provided, that notice thereof is given to the
MLP.
(b) A Request may be withdrawn prior to the filing of the Demand
Registration Statement by the Initiating Holders (a "Withdrawn Request")
and a Demand Registration Statement may be withdrawn up to the time of
effectiveness or, if applicable, pricing, by the Initiating Holders of the
registration (a "Withdrawn Demand Registration"), and such withdrawal
shall be treated as a Demand Registration which shall have been effected
pursuant to this Section 2.2, unless the Initiating Holders reimburse the
MLP for its reasonable out-of-pocket Registration Expenses relating to the
preparation and filing of such Demand Registration Statement (to the
extent actually incurred); provided, however, that if a Withdrawn Request
or Withdrawn Demand Registration is made (A) because of a material adverse
change in the business, financial condition or prospects of the MLP, or
(B) because the sole or lead managing underwriter advises that the amount
of Registrable Securities to be sold in such offering be reduced pursuant
to Section 2.2.2 by more than twenty percent (20%) of the Registrable
Securities to be included in such Registration Statement, or (C) because
of the postponement of such registration pursuant to Section 2.5, then
such withdrawal shall not be treated as a Demand Registration effected
pursuant to this Section 2.2 (and shall not be counted toward the number
of Demand Registrations), and the MLP shall pay all Registration Expenses
in connection therewith. Any Holder requesting inclusion in a Demand
Registration may, at any time up to the time of effectiveness or, if
applicable, pricing of the Demand Registration Statement revoke such
request by delivering written notice to the MLP revoking such requested
inclusion.
(c) The registration rights granted pursuant to provisions of this
Section 2.2 shall be in addition to the registration rights granted
pursuant to the other provisions of Article 2 hereof. Any Request by any
Holder for a Demand Registration pursuant to this
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Section 2.2, and any written request by any Holder for inclusion in such
Demand Registration Statement will not affect the inclusion of such
Registrable Securities in the Investors Registration Statement until such
Registrable Securities have been sold under the Demand Registration
Statement; provided, however, that at such time of sale, the MLP shall
have the right to remove from the Investors Registration Statement the
Registrable Securities sold pursuant to the Demand Registration Statement.
2.2.2 Priority in Demand Registrations. If a Demand Registration involves
an Underwritten Offering, and the sole or lead managing underwriter, as the case
may be, of such Underwritten Offering shall advise the MLP in writing, with a
copy to each Holder requesting registration, on or before the date ten (10) days
prior to the date then scheduled for such offering that, in its opinion, the
amount of Registrable Securities requested to be included in such Demand
Registration exceeds the number which can be sold in such offering within a
price range acceptable to the Initiating Holders, the MLP shall include in such
Demand Registration, to the extent of the number which the MLP is so advised may
be included in such offering, the Registrable Securities requested to be
included in the Demand Registration by the Holders allocated as follows (subject
to the Investors' pro rata allocation rights set forth in the Investors
Registration Rights Agreement): (i) first, 100% of the Registrable Securities of
the Founders representing Base Units which have not previously been sold by such
Founders, (ii) second, only if all of the Registrable Securities referred to in
clause (i) have been included, the number of Registrable Securities requested to
be included therein by the Holders allocated pro rata among such Holders and
based, for each such selling Holder, on the percentage derived by dividing (A)
the number of Registrable Securities proposed to be sold by such Holder in such
Demand Registration in excess of the number of Registrable Securities included
in clause (i), by (B) the aggregate number of Registrable Securities not
included in clause (i) proposed to be sold by each such Holder in such Demand
Registration, and (iii) third, only if all of the Registrable Securities in
clause (ii) have been included, any other securities requested to be included
therein.
2.2.3 Limitations on Demand Registrations. The MLP shall not be obligated
to effect any Demand Registration within three (3) months after (i) the
effective date of the Investors Registration Statement, or (ii) the effective
date of a previous Demand Registration Statement. The rights of the Holders to
request Demand Registrations pursuant to this Section 2.2 are subject to the
limitation that in no event shall the MLP be obligated to undertake, and pay the
Registration Expenses of, more than two (2) Demand Registrations during any
Annual Period or more than three (3) Demand Registrations total for each of the
Moriah Group, the Brothers Group and the Newstone Group; provided, however, (i)
that there shall be no limit on the total number of Demand Registrations
requested by the Holders if such Demand Registrations are to be effected on Form
S-3 and are each expected to result in gross proceeds to the Holders of at least
$1,000,000, (ii) that to the extent the MLP does not include in any Demand
Registration requested by the Newstone Group the number of Registrable
Securities requested to be registered by any Newstone Member by reason of the
limitation in clause (i) of Section 2.2.2, the Newstone Group shall be entitled
to request one (1) additional Demand Registration during the same Annual Period,
and (iii) that to the extent the MLP does not include, in what would otherwise
be the final Demand Registration which the MLP is required to undertake pursuant
to this Section 2.2, the number of Registrable Securities requested to be
registered by the Holders by reason of Section 2.2.2, such number of Demand
Registrations shall be increased once for each such occurrence.
2.2.4 Underwriting; Selection of Underwriters. Notwithstanding anything to
the contrary contained in this Section 2.2, if the Initiating Holders so elect,
the offering of such
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Registrable Securities pursuant to such Demand Registration shall be in the form
of a firm commitment Underwritten Offering; and such Initiating Holders may
require, in accordance with Section 2.4 below, that all Holders participating in
such registration sell their Registrable Securities to the underwriters at the
same price and on the same terms of underwriting applicable to the Initiating
Holders. Except to the extent the MLP has otherwise already agreed to hire
designated underwriters as required by the terms of the Private Placement, if
any Demand Registration involves an Underwritten Offering, the sole or managing
underwriters and any additional investment bankers and managers to be used in
connection with such registration shall be selected by the Initiating Holders,
subject to the approval of the MLP (such approval not to be unreasonably
withheld).
2.2.5 [Intentionally Omitted]
2.2.6 Effective Registration Statement; Suspension. A Demand Registration
Statement shall not be deemed to have become effective (and the related
registration will not be deemed to have been effected) (i) unless it has been
declared effective by the Commission and remains effective in compliance with
the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Demand Registration Statement for the
period provided in Section 3.1(b), (ii) if the offering of any Registrable
Securities pursuant to such Demand Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court, or (iii) if, in the case of an
Underwritten Offering, the conditions to closing specified in an underwriting
agreement to which the MLP is a party are not satisfied other than by the sole
reason of any breach or failure by the Holders of Registrable Securities or are
not otherwise waived.
2.2.7 Other Registrations. During the period (i) beginning on the date of
a Request and (ii) ending on the date that is 90 days after the date that a
Demand Registration Statement filed pursuant to such Request has been declared
effective by the Commission, the MLP shall not, without the consent of the
Initiating Holder, file a registration statement pertaining to any other
securities of the MLP other than the Investors Registration Statement on Form
S-8 (or any successor form) for securities issued under the Partnership Group's
employee benefit plans to eligible participants therein or on Form S-4 (or any
successor form) for securities issued to effect a business combination pursuant
to Rule 145 promulgated under the Securities Act.
2.2.8 Registration Statement Form. Demand Registrations under this Section
2.2 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Initiating Holders, and (ii) which shall be available
for the sale of Registrable Securities in accordance with the intended method or
methods of disposition specified in the requests for registration. The MLP
agrees to include in any such Registration Statement all information which any
selling Holder, upon advice of counsel, shall reasonably request.
2.2.9 Special Provisions Applicable to ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇.
(a) In the event that the employment of ▇▇▇▇ ▇. ▇▇▇▇▇ with the MLP
or any of its Affiliates ("Employer") is terminated by the Employer
without "Cause," as such term is defined in the employment agreement
between ▇▇▇▇ ▇. ▇▇▇▇▇ and the Employer, ▇▇▇▇ ▇. ▇▇▇▇▇ will thereafter have
one demand registration right, to be exercised by him in accordance with
the provisions of this Section 2.2.
(b) In the event that the employment of ▇▇▇▇ ▇. ▇▇▇▇▇▇ with the
Employer is terminated without "Cause," as such term is defined in the
employment agreement between ▇▇▇▇ ▇. ▇▇▇▇▇▇ and the Employer, ▇▇▇▇ ▇.
▇▇▇▇▇▇ will thereafter have one
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demand registration right, to be exercised by him in accordance with the
provisions of this Section 2.2.
2.3 PIGGYBACK REGISTRATION.
2.3.1 Right to Include Registrable Securities. If the MLP at any time or
from time to time proposes to register any of its securities under the
Securities Act (other than in a registration on Form S-4 or Form S-8 or any
successor form to such forms) and files (i) a shelf registration statement or
(ii) a registration statement, other than a shelf registration statement, or
proposes to do a take down off of an effective shelf registration statement,
whether or not pursuant to registration rights granted to other holders of its
securities and whether or not for sale for its own account, the MLP shall
deliver prompt written notice (which notice shall be given at least 45 days
prior to the filing of such registration statement or ten (10) days prior to the
filing of any preliminary prospectus supplement pursuant to Rule 424(b), or the
prospectus supplement pursuant to Rule 424(b) (if no preliminary prospectus
supplement is used)) to all Holders of Registrable Securities of its intention
to undertake such registration or offering, describing in reasonable detail the
proposed registration and distribution (including the anticipated range of the
proposed offering price, the class and number of securities proposed to be
registered and the distribution arrangements) and of such Holders' right to
participate in such registration under this Section 2.3 as hereinafter provided.
Subject to the other provisions of this Section 2.3, upon the written request of
any Holder made within 20 days after the receipt of such written notice (which
request shall specify the amount of Registrable Securities to be registered and
the intended method of disposition thereof), the MLP shall effect the
registration under the Securities Act of all Registrable Securities requested by
Holders to be so registered (a "Piggyback Registration"), to the extent required
to permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered, by inclusion of
such Registrable Securities in the Registration Statement which covers the
securities which the MLP proposes to register and shall cause such Registration
Statement to become and remain effective with respect to such Registrable
Securities for the period provided in Section 3.1(b). If a Piggyback
Registration involves an Underwritten Offering, immediately upon notification to
the MLP from the underwriter of the price at which such securities are to be
sold, the MLP shall so advise each participating Holder. The Holders requesting
inclusion in a Piggyback Registration may, at any time up to and including the
time of pricing of the Piggyback Registration Statement (and for any reason),
revoke such request by delivering written notice to the MLP revoking such
requested inclusion.
If at any time after giving written notice of its intention to
register any securities and up to and including the time of effectiveness or, if
applicable, pricing of the Piggyback Registration Statement filed in connection
with such registration, the MLP shall determine for any reason not to register
or to delay registration of such securities, the MLP may, at its election, give
written notice of such determination to each Holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, the MLP
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses incurred in connection therewith), without prejudice,
however, to the rights of Holders to cause such registration to be effected as a
Demand Registration under Section 2.2, subject, however, to the provisions of
Section 2.5 and (ii) in the case of a determination to delay such registration,
the MLP shall be permitted to delay the registration of such Registrable
Securities for the same period as the delay in registering such other
securities; provided, however, that if such delay shall extend beyond 120 days
from the date the MLP received a request to include Registrable Securities in
such Piggyback Registration, then the MLP shall again give all Holders the
opportunity to participate therein and
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shall follow the notification procedures set forth in the preceding paragraph.
There is no limitation on the number of such Piggyback Registrations pursuant to
this Section 2.3 which the MLP is obligated to effect.
The registration rights granted pursuant to the provisions of this
Section 2.3 shall be in addition to the registration rights granted pursuant to
the other provisions of Article 2 hereof.
2.3.2 Priority in Incidental Registration. If a Piggyback Registration
involves an Underwritten Offering, and the sole or the lead managing
underwriter, as the case may be, of such Underwritten Offering shall advise the
MLP in writing on or before the date ten (10) days prior to the date then
scheduled for such offering that, in its opinion, the amount of securities
(including Registrable Securities) requested to be included in such registration
exceeds the amount which can be sold in such offering without materially
interfering with the successful marketing of the securities being offered, the
MLP shall include in such registration, to the extent of the number which the
MLP is so advised may be included in such offering without such effect (subject
to the Investors' pro rata allocation rights set forth in the Investors
Registration Rights Agreement), (i) first, the securities, if any, that the MLP
proposes to register for its own account, (ii) second, assuming that all of the
Registrable Securities referred to in clause (i) have been included, 100% of the
Registrable Securities of the Founders representing Base Units which have not
previously been sold by such Founders, (iii) third, only if all of the
Registrable Securities referred to in clause (ii) have been included, the number
of Registrable Securities requested to be included therein by the Holders
allocated pro rata among such Holders and based, for each such selling Holder,
on the percentage derived by dividing (A) the number of Registrable Securities
proposed to be sold by such Holder in excess of the number of Registrable
Securities included in clause (ii), by (B) the aggregate number of Registrable
Securities not included in clause (ii) proposed to be sold by each such Holder
in such Piggyback Registration, and (iv) fourth, only if all of the Registrable
Securities in clause (iii) have been included, any other securities requested to
be included therein.
2.3.3 Selection of Underwriters. If any Piggyback Registration involves an
Underwritten Offering, the sole or managing underwriters and any additional
investment bankers and managers to be used in connection with such registration
shall be subject to the approval of the Majority Holders of the Registration.
2.4 UNDERWRITTEN OFFERINGS.
2.4.1 Demand Underwritten Offerings. If requested by the sole or lead
managing underwriter for any Underwritten Offering effected pursuant to a Demand
Registration, the MLP shall enter into a customary underwriting agreement with
the underwriters for such offering, such agreement to be reasonably satisfactory
in substance and form to the Majority Holders of the Registration and to contain
such representations and warranties by the MLP, and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnification and contribution to the effect and to the extent provided in
Article 6.
2.4.2 Holders of Registrable Securities to be Parties to Underwriting
Agreement. The Holders of Registrable Securities to be distributed by
underwriters in an Underwritten Offering contemplated by this Article 2 shall be
parties to the underwriting agreement between the MLP and such underwriters and
may, at such Holders' option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the MLP to and for the
benefit of such underwriters shall also be made to and for the benefit of such
Holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such
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underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holders of Registrable Securities; provided, however, that
the MLP shall not be required to make any representations or warranties with
respect to written information specifically provided by a selling Holder for
inclusion in the Registration Statement. No Holder shall be required to make any
representations or warranties to, or agreements with, the MLP or the
underwriters other than representations, warranties or agreements regarding such
Holder, such Holder's Registrable Securities and such Holder's intended method
of disposition.
2.4.3 Participation in Underwritten Registration. Notwithstanding anything
herein to the contrary, no Person may participate in any underwritten
registration hereunder unless such Person (i) agrees to sell its securities on
the same terms and conditions provided in any underwritten arrangements approved
by the Persons entitled hereunder to approve such arrangement and (ii)
accurately completes and executes in a timely manner all questionnaires, powers
of attorney, indemnities, custody agreements, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
2.5 POSTPONEMENTS. The MLP shall be entitled to postpone a Demand
Registration and to require the Holders of Registrable Securities to discontinue
the disposition of their securities covered by a shelf registration during any
Blackout Period (i) if the Board determines in good faith that effecting such a
registration or continuing such disposition at such time would have a material
adverse effect upon a proposed sale of all (or substantially all) of the assets
of the Partnership Group or a merger, reorganization, recapitalization or
similar current transaction materially affecting the capital structure or equity
ownership of the Partnership Group, or (ii) if the MLP is in possession of
material information which the Board determines in good faith it is not in the
best interests of the MLP to disclose in a registration statement at such time;
provided, however, that the MLP may only delay a Demand Registration pursuant to
this Section 2.5 by delivery of a Blackout Notice within thirty (30) days of
delivery of the Request for such Demand Registration, and may delay a Demand
Registration and require the Holders of Registrable Securities to discontinue
the disposition of their securities covered by a shelf registration only for a
reasonable period of time not to exceed ninety (90) days (or such earlier time
as such transaction is consummated or no longer proposed or the material
information has been made public) (the "Blackout Period"). There shall not be
more than one Blackout Period in any 12-month period. The MLP shall promptly
notify the Holders in writing (a "Blackout Notice") of any decision to postpone
a Demand Registration or to discontinue sales of Registrable Securities covered
by a shelf registration pursuant to this Section 2.5 and shall include a general
statement of the reason for such postponement, an approximation of the
anticipated delay and an undertaking by the MLP promptly to notify the Holders
as soon as a Demand Registration may be effected or sales of Registrable
Securities covered by a shelf registration may resume. In making any such
determination to initiate or terminate a Blackout Period, the MLP shall not be
required to consult with or obtain the consent of any Holder, and any such
determination shall be the MLP's sole responsibility. Each Holder shall treat
all notices received from the MLP pursuant to this Section 2.5 constituting
material inside information in the strictest confidence and shall not trade on
or disseminate such information. If the MLP shall postpone the filing of a
Demand Registration Statement, the Initiating Holders shall have the right to
withdraw the request for registration. Any such withdrawal shall be made by
giving written notice to the MLP within thirty (30) days after receipt of the
Blackout Notice. Such withdrawn registration request shall not be treated as a
Demand Registration effected pursuant to Section 2.2 (and shall not be counted
towards the number of Demand Registrations effected), and the MLP shall pay all
Registration Expenses in connection therewith.
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ARTICLE 3
REGISTRATION PROCEDURES
3.1 OBLIGATIONS OF THE MLP. Whenever the MLP is required to effect the
registration of Registrable Securities under the Securities Act pursuant to
Article 2 of this Agreement, the MLP shall use its commercially reasonable best
efforts to:
(a) promptly prepare and file with the Commission, or designate an
existing filing as, a Registration Statement to effect such registration,
which Registration Statement shall comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the Commission to be filed therewith, and
the MLP shall use its commercially reasonable best efforts to cause such
Registration Statement to become effective (provided, that the MLP may
discontinue any registration of its securities that are not Registrable
Securities, and, under the circumstances specified in Section 2.3.1, its
securities that are Registrable Securities); provided, however, that
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, or comparable statements under securities or blue sky
laws of any jurisdiction, the MLP shall (i) provide Holders' counsel and
any other Inspector with an adequate and appropriate opportunity to
participate in the preparation of such Registration Statements and each
Prospectus included therein (and each amendment or supplement thereto or
comparable statement) to be filed with the Commission, which documents
shall be subject to the review and comment of Holders' counsel, and (ii)
not file any such Registration Statement or Prospectus (or amendment or
supplement thereto or comparable statement) with the Commission to which
Holder's counsel, any selling Holder or any other Inspector shall have
reasonably objected on the grounds that such filing does not comply in all
material respects with the requirements of the Securities Act or of the
rules or regulations thereunder;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary (i) to keep such Registration
Statement effective, and (ii) to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Securities covered by such Registration Statement, in each case until such
time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller(s)
thereof set forth in such Registration Statement; provided, that except
with respect to any shelf registration, such period need not extend beyond
nine months after the effective date of the Registration Statement; and
provided, further, that with respect to any shelf registration, such
period need not extend beyond the time when all Registrable Securities
covered by such shelf registration may be sold pursuant to Rule 144(k)
under the Securities Act, and which periods, in any event, shall terminate
when all Registrable Securities covered by such Registration Statement
have been sold (but not before the expiration of the 90-day period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder,
if applicable);
(c) furnish, without charge, to each selling Holder of such
Registrable Securities and each underwriter, if any, of the securities
covered by such Registration Statement, such number of copies of such
Registration Statement and the Prospectus included in such Registration
Statement (including each preliminary Prospectus), any Issuer Free Writing
Prospectuses, and each amendment and supplement to any of the foregoing
(in each case including all exhibits), in conformity with the requirements
of the Securities Act, and such other documents as such selling Holder and
underwriter may
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reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such selling Holder
(the MLP hereby consenting to the use in accordance with applicable law of
each such Registration Statement (or amendment or post-effective amendment
thereto), each such Prospectus (or preliminary prospectus or supplement
thereto) and any Issuer Free Writing Prospectus by each such selling
Holder of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities
covered by such Registration Statement or Prospectus);
(d) prior to any public offering of Registrable Securities, to
register or qualify all Registrable Securities and other securities
covered by such Registration Statement under such other securities or blue
sky laws of such jurisdictions as any selling Holder of Registrable
Securities covered by such Registration Statement or the sole or lead
managing underwriter, if any, may reasonably request to enable such
selling Holder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such selling Holder and to continue such
registration or qualification in effect in each such jurisdiction for as
long as such Registration Statement remains in effect (including through
new filings or amendments or renewals), and do any and all other acts and
things which may be necessary or advisable to enable any such selling
Holder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such selling Holder; provided, however,
that the MLP shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3.1(d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction;
(e) to obtain all other approvals, consents, exemptions or
authorizations from such governmental agencies or authorities as may be
necessary to enable the selling Holders of such Registrable Securities to
consummate the disposition of such Registrable Securities;
(f) promptly notify Holders' counsel, each Holder of Registrable
Securities covered by such Registration Statement and the sole or lead
managing underwriter, if any: (i) when the Registration Statement, any
pre-effective amendment, the Prospectus or any prospectus supplement
related thereto, Issuer Free Writing Prospectus, or post-effective
amendment to the Registration Statement has been filed and, with respect
to the Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the Commission or any
state securities or blue sky authority for amendments or supplements to
the Registration Statement, the Prospectus or the Issuer Free Writing
Prospectus related thereto or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation or threat of any
proceedings for that purpose, (iv) of the receipt by the MLP of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any proceeding for such purpose, (v)
of the existence of any fact of which the MLP becomes aware or the
happening of any event which results in (A) the Registration Statement
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any
statements therein not misleading, or (B) the Prospectus included in such
Registration Statement or any Issuer Free Writing Prospectus containing an
untrue statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make any statements therein,
in the light of
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the circumstances under which they were made, not misleading, (vi) if at
any time the representations and warranties contemplated by Section 2.4.2
cease to be true and correct in all material respects, and (vii) of the
MLP's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate or that there exists
circumstances not yet disclosed to the public which make further sales
under such Registration Statement inadvisable pending such disclosure and
post-effective amendment; and, if the notification relates to an event
described in any of the clauses (ii) through (vii) of this Section 3.1(f),
the MLP shall promptly prepare a supplement or post-effective amendment to
such Registration Statement, related Prospectus or Issuer Free Writing
Prospectus or any document incorporated therein by reference or file any
other required document so that (1) such Registration Statement shall not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (2) as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, such
Prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading (and shall furnish to each such Holder
and each underwriter, if any, a reasonable number of copies of such
Prospectus or Issuer Free Writing Prospectus so supplemented or amended);
and if the notification relates to an event described in clause (iii) of
this Section 3.1(f), the MLP shall take all reasonable action required to
prevent the entry of such stop order or to remove it if entered;
(g) make available for inspection by any selling Holder of
Registrable Securities, any sole or lead managing underwriter
participating in any disposition pursuant to such Registration Statement,
Holders' counsel and any attorney, accountant or other agent retained by
any such seller or any underwriter (each, an "Inspector" and,
collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the MLP and any
subsidiaries thereof as may be in existence at such time as shall be
necessary, in the opinion of such Holders' and such underwriters'
respective counsel, to enable them to exercise their due diligence
responsibility and to conduct a reasonable investigation within the
meaning of the Securities Act, and cause the MLP's and any subsidiaries'
officers, directors and employees, and the independent public accountants
of the MLP, to supply all information reasonably requested by any such
Inspectors in connection with such Registration Statement;
(h) if requested by the Majority Holders of the Registration, obtain
an opinion from the MLP's counsel and a "cold comfort" letter from the
MLP's independent public accountants who have certified the MLP's
financial statements included or incorporated by reference in such
Registration Statement, in each case dated the effective date of such
Registration Statement (and if such registration involves an Underwritten
Offering, dated the date of the closing under the underwriting agreement),
in customary form and covering such matters as are customarily covered by
such opinions and "cold comfort" letters delivered to underwriters in
underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the sole or lead managing underwriter, if any,
and to the Majority Holders of the Registration, and furnish to each
Holder participating in the offering and to each underwriter, if any, a
copy of such opinion and letter addressed to such Holder (in the case of
the opinion) and underwriter (in the case of the opinion and the "cold
comfort" letter);
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(i) provide a CUSIP number for all Registrable Securities and
provide and cause to be maintained a transfer agent and registrar for all
such Registrable Securities covered by such Registration Statement not
later than the effectiveness of such Registration Statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and any other governmental agency
or authority having jurisdiction over the offering, and make available to
its security holders, as soon as reasonably practicable but not later than
90 days after the end of any 12-month period, an earnings statement (i)
commencing at the end of any month in which Registrable Securities are
sold to underwriters in an Underwritten Offering and (ii) commencing with
the first day of the MLP's calendar month next succeeding each sale of
Registrable Securities after the effective date of a Registration
Statement, which statement shall cover such 12-month periods, in a manner
which satisfies the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(k) if so requested by the Majority Holders of the Registration, use
its best efforts to cause all such Registrable Securities to be listed (i)
on each national securities exchange on which the MLP's securities are
then listed or (ii) if securities of the MLP are not at the time listed on
any national securities exchange (or if the listing of Registrable
Securities is not permitted under the rules of each national securities
exchange on which the MLP's securities are then listed), on a national
securities exchange designated by the Majority Holders of the
Registration;
(l) keep each selling Holder of Registrable Securities advised in
writing as to the initiation and progress of any registration under
Article 2 hereunder;
(m) enter into and perform customary agreements (including, if
applicable, an underwriting agreement in customary form) and provide
officers' certificates and other customary closing documents;
(n) cooperate with each selling Holder of Registrable Securities and
each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD and make reasonably available its
employees and personnel and otherwise provide reasonable assistance to the
underwriters (taking into account the needs of the MLP's businesses and
the requirements of the marketing process) in the marketing of Registrable
Securities in any Underwritten Offering;
(o) furnish to each Holder participating in the offering and the
sole or lead managing underwriter, if any, without charge, a least one
manually-signed copy of the Registration Statement and any post-effective
amendments thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including
those deemed to be incorporated by reference);
(p) cooperate with the selling Holders of Registrable Securities and
the sole or lead managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive
legends representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and registered
in such names in accordance with the underwriting agreement prior to any
sale of Registrable Securities to the underwriters or, if not an
Underwritten Offering, in
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accordance with the instructions of the selling Holders of Registrable
Securities at least three (3) business days prior to any sale of
Registrable Securities;
(q) if requested by the sole or lead managing underwriter or any
selling Holder of Registrable Securities, immediately incorporate in a
prospectus supplement, Issuer Free Writing Prospectus or post-effective
amendment such information concerning such Holder of Registrable
Securities, the underwriters or the intended method of distribution as the
sole or lead managing underwriter or the selling Holder of Registrable
Securities reasonably requests to be included therein and as is
appropriate in the reasonable judgment of the MLP, including, without
limitation, information with respect to the number of shares of the
Registrable Securities being sold to the underwriters, the purchase price
being paid therefor by such underwriters and with respect to any other
terms of the Underwritten Offering of the Registrable Securities to be
sold in such offering; make all required filings of such Prospectus
supplement, Issuer Free Writing Prospectus or post-effective amendment as
soon as notified of the matters to be incorporated in such Prospectus
supplement, Issuer Free Writing Prospectus or post-effective amendment;
and supplement or make amendments to any Registration Statement if
requested by the sole or lead managing underwriter of such Registrable
Securities; and
(r) use its best efforts to take all other steps necessary to
expedite or facilitate the registration and disposition of the Registrable
Securities contemplated hereby.
3.2 SELLER INFORMATION.
The MLP may require each selling Holder of Registrable Securities as to
which any registration is being effected to furnish to the MLP such information
regarding such Holder, such Holder's Registrable Securities and such Holder's
intended method of disposition as the MLP may from time to time reasonably
request in writing; provided that such information shall be used only in
connection with such registration.
If any Registration Statement or comparable statement under blue sky laws
refers to any Holder by name or otherwise as the Holder of any securities of the
MLP, then such Holder shall have the right to require (i) the insertion therein
of language, in form and substance satisfactory to such Holder and the MLP, to
the effect that the holding by such Holder of such securities is not to be
construed as a recommendation by such Holder of the investment quality of the
MLP's securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the MLP, and
(ii) in the event that such reference to such Holder by name or otherwise is not
in the judgment of the MLP, as advised by counsel, required by the Securities
Act or any similar federal statute or any state blue sky or securities law then
in force, the deletion of the reference to such Holder.
3.3 NOTICE TO DISCONTINUE. Each holder of Registrable Securities agrees
that, upon receipt of any notice from the MLP of the happening of any event of
the kind described in Section 3.1(f)(ii) through (vii), such Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3.1(f) and, if so directed by the MLP, such Holder shall deliver to the
MLP (at the MLP's expense) all copies, other than permanent file copies, then in
such Holder's possession of the Prospectus or any Issuer Free Writing Prospectus
covering such Registrable Securities which is current at the time of receipt of
such notice. If the MLP shall give any such notice, the
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MLP shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement (including, without limitation,
the period referred to in Section 3.1(b)) by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 3.1(f) to and including the date when the Holder shall have received the
copies of the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 3.1(f).
ARTICLE 4
REGISTRATION EXPENSES
All reasonable expenses incident to the MLP's performance of or compliance
with this Agreement, including, but not limited to, (i) all registration, filing
and listing fees of the National Association of Securities Dealers, Inc.; (ii)
all registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws; (iii) all word processing, duplicating,
printing, messenger and delivery expenses; (iv) the reasonable fees and
disbursements of counsel for the MLP and of its independent registered public
accountants, including, without limitation, the expenses of any "comfort
letters" required by or incident to such performance and compliance; (v) any
reasonable fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to securities being sold by any Holder or that
are otherwise not being sold or disposed of by the MLP), including, without
limitation, reasonable fees and disbursements of counsel for the underwriter(s)
in connection with blue sky qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of such
jurisdictions; and (vi) reasonable fees and expenses of other Persons retained
or employed by the MLP (all such expenses being herein called "Registration
Expenses"), shall be borne by the MLP. In addition, the MLP shall pay its
internal expenses (including, but not limited to, all salaries and expenses of
any officers and employees of the Partnership Group performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any insurance obtained by the MLP against liabilities arising out of
the public offering of the Registrable Securities being registered and the
expenses and fees for listing the securities to be registered on each securities
exchange.
ARTICLE 5
OTHER AGREEMENTS
5.1 FREE WRITING PROSPECTUS. Each Holder executing this Agreement
represents that it has not prepared or had prepared on its behalf or used or
referred to, and agrees that it will not prepare or have prepared on its behalf
or use or refer to, any Free Writing Prospectus, and has not distributed and
will not distribute any written materials in connection with the offer or sale
of the Registrable Securities without the prior express written consent of the
MLP and, in connection with any Underwritten Offering, the underwriters. Any
such Free Writing Prospectus consented to by the MLP and the underwriters, as
the case may be, is hereinafter referred to as a "Permitted Free Writing
Prospectus." The MLP represents and agrees that it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
5.2 AGREEMENT RESTRICTING SALE OF UNITS.
5.2.1 Notwithstanding the other provisions of this Agreement, each
Newstone Member agrees to hold fifty percent (50%) of the total Units owned by
it immediately following the closing
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of the Private Placement for not less than 30 months following such Closing
Date; provided, that, prior to the expiration of such 30 month period:
(a) if any of ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ or their
respective Affiliates, sell all or any portion of their Units, each
Newstone Member may sell all or a portion of its Units in the same
proportion without regard to the fifty percent (50%) limitation on
transfer;
(b) each Newstone Member may dispose of a portion of its Units
provided that at the time of such disposition it retains ownership of
Units having an aggregate fair market value at such time of not less than
fifty percent (50%) of the Market Value of the Units owned by it as of the
Closing Date; and
(c) if a representative of the Newstone Group is removed from the
Board or the other representative(s) on the Board accept the resignation
of the Newstone Group representative from the Board, the Newstone Members
will be free to dispose of all of such Units.
5.2.2 Notwithstanding the foregoing, each Newstone Member will be entitled
to margin or otherwise pledge all Units held by it, subject to any lock-up
agreement to which it may be a party.
5.2.3 With respect to the remaining fifty percent (50%) of the Units held
by each Newstone Member, such Units will be freely transferable, subject only to
applicable securities laws restrictions or any agreement with any underwriter
restricting transfer of such Units.
ARTICLE 6
INDEMNIFICATION
6.1 INDEMNIFICATION BY THE MLP. The MLP agrees to indemnify and hold
harmless, to the fullest extent permitted by law, each Holder of Registrable
Securities, its officers, directors, partners, members, shareholders, employees,
Affiliates and agents (collectively, "Agents") and each Person who controls such
Holder (within the meaning of the Securities Act) and its Agents with respect to
each registration which has been effected pursuant to this Agreement, against
any and all losses, claims, damages or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) in respect thereof, and expenses
(as incurred or suffered and including, but not limited to, any and all expenses
incurred in investigating, preparing or defending any litigation or proceeding,
whether commenced or threatened, and the reasonable fees, disbursements and
other charges of legal counsel) in respect thereof (collectively, "Claims"),
insofar as such Claims arise out of or are based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus (including any preliminary, final or summary prospectus), any Issuer
Free Writing Prospectus and any amendment or supplement to the foregoing related
to any such registration or any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the MLP of the Securities Act or any rule or
regulation thereunder applicable to the MLP and relating to action or inaction
required of the MLP in connection with any such registration, or any
qualification or compliance incident thereto; provided, however, that the MLP
will not be liable in any such case to the extent that any such Claims arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact so made in
reliance upon and in conformity with written information furnished to the MLP in
an instrument duly executed by such Holder specifically stating that it was
expressly for use therein. The MLP
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shall also indemnify any underwriters of the Registrable Securities, their
Agents and each Person who controls any such underwriter (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Person who may be entitled to indemnification pursuant to this
Section 6.1 and shall survive the transfer of securities by such Holder or
underwriter.
6.2 INDEMNIFICATION BY HOLDERS. Each Holder, if Registrable Securities
held by it are included in the securities as to which a registration is being
effected, agrees to, severally and not jointly, indemnify and hold harmless, to
the fullest extent permitted by law, the MLP, the General Partner, the Board and
their respective officers, each other Person who participates as an underwriter
in the offering or sale of such securities and its Agents and each Person who
controls the MLP or any such underwriter (within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act) and its Agents
against any and all Claims, insofar as such Claims arise out of or are based
upon (i) any untrue or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (including any preliminary, final or
summary prospectus), any Issuer Free Writing Prospectus and any amendment or
supplement to the foregoing related to such registration, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the MLP in an instrument duly executed by such
Holder specifically stating that it was expressly for use therein and (ii) any
Free Writing Prospectus used by such Holder without the prior written consent of
the Holder; provided, however, that the aggregate amount which any such Holder
shall be required to pay pursuant to this Section 6.2 shall in no event be
greater than the amount of the net proceeds received by such Holder upon the
sale of the Registrable Securities pursuant to the Registration Statement giving
rise to such Claims less all amounts previously paid by such Holder with respect
to any such Claims. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such indemnified party
and shall survive the transfer of such securities by such Holder or underwriter.
6.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by an
indemnified party of notice of any Claim or the commencement of any action or
proceeding involving a Claim under this Article 6, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party
pursuant to Article 6, (i) notify the indemnifying party in writing of the Claim
or the commencement of such action or proceeding; provided, that the failure of
any indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under this Article 6, except to the extent the
indemnifying party is materially and actually prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Article 6, and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any indemnified
party shall have the right to employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (A) the indemnifying party has agreed
in writing to pay such fees and expenses, (B) the indemnifying party shall have
failed to assume the defense of such claim and employ counsel reasonably
satisfactory to such indemnified party within ten (10) days after receiving
notice from such indemnified party that the indemnified party believes it has
failed to do so, (C) in the reasonable judgment of any such indemnified party,
based upon advice of counsel, a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such claims (in
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which case, if the indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such indemnified party) or (D) such indemnified party is
a defendant in an action or proceeding which is also brought against the
indemnifying party and reasonably shall have concluded that there may be one or
more legal defenses available to such indemnified party which are not available
to the indemnifying party. No indemnifying party shall be liable for any
settlement of any such claim or action effected without its written consent,
which consent shall not be unreasonably withheld. In addition, without the
consent of the indemnified party (which consent shall not be unreasonably
withheld), no indemnifying party shall be permitted to consent to entry of any
judgment with respect to, or to the effect the settlement or compromise of any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim), unless such settlement,
compromise or judgment (1) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim, (2) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party, and (3) does not provide for any
action on the part of any party other than the payment of money damages which is
to be paid in full by the indemnifying party.
6.4 CONTRIBUTION. If the indemnification provided for in Sections 6.1 or
6.2 from the indemnifying party for any reason is unavailable to (other than by
reason of exceptions provided therein), or is insufficient to hold harmless, an
indemnified party hereunder in respect of any Claim, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, in connection with the actions which resulted in such Claim, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. If, however, the foregoing allocation is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not
only such relative faults but also the relative benefits of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by a party as a result of any Claim referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in Section 6.3, any legal or other fees, costs or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. Notwithstanding anything in this Section 6.4 to the contrary, no
indemnifying party (other than the MLP) shall be required pursuant to this
Section 6.4 to contribute any amount in excess of the net proceeds received by
such indemnifying party from the sale of the Registrable Securities pursuant to
the Registration Statement giving rise to such Claims, less all amounts
previously paid by such indemnifying party with respect to such Claims. No
person guilty of fraudulent
- 22 -
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.
6.5 OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding Sections 6.1 and 6.2 (with appropriate modifications) shall be
given by the MLP and each selling Holder of Registrable Securities with respect
to any required registration or other qualification of securities under any
Federal or state law or regulation of any governmental authority, other than the
Securities Act. The indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract.
6.6 INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Article 6 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when bills are
received or any expense, loss, damage or liability is incurred.
ARTICLE 7
COMPLIANCE WITH RULE 144
With a view to making available the benefits of certain rules and
regulations of the Commission that may permit the sale of the Registrable
Securities to the public without registration, the MLP agrees to use its
commercially reasonable efforts to:
(a) make and keep public information regarding the MLP available, as
those terms are understood and defined in Rule 144 of the Securities Act,
at all times from and after the date hereof; and
(b) file with the Commission in a timely manner all reports and
other documents required of the MLP under the Securities Act and the
Exchange Act at all times from and after the date hereof.
ARTICLE 8
MISCELLANEOUS
8.1 NOTICES. All notices and other communications provided for or
permitted hereunder shall be deemed to be sufficient if contained in a written
instrument and shall be deemed to have been duly given when delivered in person,
by telecopy, by facsimile, by nationally-recognized overnight courier, or by
first class registered or certified mail, postage prepaid, addressed to such
party at the address set forth below or such other address as may hereafter be
designated in writing by the addressee as follows:
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(i) if to the MLP, to:
Legacy Reserves LP
▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Limited Partners, to the address of each Limited
Partner set forth in the records of the MLP.
(iii) If to any subsequent Holder, to the address of such Person set
forth in the records of the MLP.
All such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery or delivery
by telecopy or facsimile, on the date of such delivery, (b) in the case of a
nationally-recognized overnight courier, on the next Business Day and (c) in the
case of mailing, on the third Business Day following such mailing if sent by
certified mail, return receipt requested.
8.2 ASSIGNMENT OF RIGHTS. Each Limited Partner and, to the extent
additional or other rights are given to the members of the Moriah Group, the
Brothers Group or the Newstone Group, any such member, may transfer and assign
all or a portion of its rights hereunder to any of its partners, members,
shareholders or other Affiliates to which such Limited Partner transfers its
ownership of all or any of its Registrable Securities and any such partner,
member, shareholder or other Affiliate may further transfer and assign all or a
portion of its rights hereunder to any of its partners, members, shareholders or
other Affiliates to whom it transfers its ownership of all or any of its
Registrable Securities (collectively, the "Permitted Transferees"); provided,
that no such assignment shall be binding upon or obligate the MLP to any such
Permitted Transferee unless and until the MLP shall have received notice of such
assignment and a written agreement of such Permitted Transferee to be bound by
the provisions of this Agreement; and provided further, that for purposes of
Section 2.2.3 hereof, any Permitted Transferee receiving its Registrable
Securities, directly or indirectly, from a member of the Moriah Group, the
Brothers Group or the Newstone Group shall be considered a member of such group
for purposes of determining the number of Demand Registrations requested
pursuant to Section 2.2.3. Except as provided above, no Holder may transfer and
assign all or any portion of its rights hereunder to any Person without the
prior written consent of the MLP. In no event shall the MLP be required to file
a post-effective amendment to a registration statement or a new registration
statement for the benefit of such transferee(s) or assignee(s) unless the MLP
agrees to do so and such Permitted Transferee or other successor agrees in
writing that it will pay all of the additional Registration Expenses incurred by
the MLP in connection with filing a post-effective amendment to a registration
statement or a new registration statement for the benefit of such transferee(s)
or assignee(s).
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8.3 LIMITATION OF RIGHTS. This Agreement shall not be construed to vest
any rights under this Agreement to any individual or entity other than the
Limited Partners and their Permitted Transferees.
8.4 RECAPITALIZATION, EXCHANGES, ETC. AFFECTING THE UNITS. The provisions
of this Agreement shall apply to the full extent set forth herein with respect
to any and all Units of the MLP or any successor or assign of the MLP (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for or in substitution of, the Registrable Securities,
and shall be appropriately adjusted for combinations, recapitalizations and the
like occurring after the date of this Agreement.
8.5 SPECIFIC PERFORMANCE. Damages in the event of breach of this Agreement
by a Party hereto may be difficult, if not impossible, to ascertain, and it is
therefore agreed that each such Person, in addition to and without limiting any
other remedy or right it may have, will have the right to seek an injunction or
other equitable relief in any court of competent jurisdiction, enjoining any
such breach, and enforcing specifically the terms and provisions hereof, and
each of the Parties hereto hereby waives any and all defenses it may have on the
ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief. The existence of this right will not
preclude any such Person from pursuing any other rights and remedies at law or
in equity which such Person may have.
8.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Agreement.
8.7 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
8.8 GOVERNING LAW. The laws of the State of Texas shall govern this
Agreement without regard to principles of conflict of laws.
8.9 SEVERABILITY OF PROVISIONS. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting or impairing the
validity or enforceability of such provision in any other jurisdiction.
8.10 ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the Parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
Parties with respect to such subject matter.
8.11 AMENDMENT. This Agreement may be amended only by means of a written
amendment signed by all Parties to this Agreement.
8.12 NO PRESUMPTION. In the event any claim is made by a Party relating to
any conflict, omission, or ambiguity in this Agreement, no presumption or burden
of proof or persuasion shall be implied by virtue of the fact that this
Agreement was prepared by or at the request of a particular Party or its
counsel.
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[Signature page follows]
- 26 -
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first above set forth.
MORIAH PROPERTIES, LTD.
By: Moriah Resources, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇, President
DAB RESOURCES, LTD.
By: DAB 1999 Corp.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇, President
BROTHERS PRODUCTION PROPERTIES, LTD.
By: Brothers Production Company, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
BROTHERS PRODUCTION COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
BROTHERS OPERATING COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
J&W MCGRAW PROPERTIES, LTD.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Management, LLC,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
- 27 -
MBN PROPERTIES LP
By: MBN Management, LLC
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and
Chief Financial Officer
H2K HOLDINGS, LTD.
By: H2K Management, LLC,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇, President
LEGACY RESERVES GP, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and
Chief Financial Officer
LEGACY RESERVES LP
By: Legacy Reserves GP, LLC, its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and
Chief Financial Officer
NEWSTONE CAPITAL, LP
By: T&W Management, LLC
Its general partner
By: /s/ S. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
__________________________________
S. ▇▇▇ ▇▇▇▇▇▇, ▇▇., President
NEWSTONE GROUP PARTNERS
By: Newstone Capital, LP
its managing partner
By: T&W Management, LLC
Its general partner
By: /s/ S. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
__________________________________
S. ▇▇▇ ▇▇▇▇▇▇, ▇▇., President
- 28 -
BLACKSTONE CAPITAL PARTNERS I, ▇▇
▇▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS II, LP
By: Skytop Holdings, LLC
Its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President
TRINITY EQUITY PARTNERS I, LP
By: Trinity Equity Holdings, LLC
Its general partner
By: /s/ S. ▇▇▇ ▇▇▇▇▇▇, ▇▇.
__________________________________
S. ▇▇▇ ▇▇▇▇▇▇, ▇▇., President
SHP CAPITAL LP
By: SHP Capital Management LLC
Its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
- 29 -