W5670291.3} 2 1.3 Defined Terms Used in this Agreement. In addition to the terms defined above and throughout this Agreement, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below. (a)...
Execution Copy
{W5670291.3}
UNIT PURCHASE AGREEMENT
THIS UNIT PURCHASE AGREEMENT is made as of March 13, 2017 by and between
▇▇▇▇▇▇▇ Resources, LP, a Delaware limited partnership (the “Parent”), and Carbo Industries,
Inc., a New York corporation (the “Investor”).
RECITALS
A. The Parent is the parent of ▇▇▇▇▇▇▇ Operating Resources, LLC, a Delaware
limited liability company (“Buyer”), which has entered into an Asset Purchase Agreement, of
even date herewith, by and among Buyer, Investor and the other Seller named therein (the “Asset
Purchase Agreement”). Capitalized terms used in this Agreement have the meanings ascribed
to them in the Asset Purchase Agreement.
B. The Parent has agreed to issue a number of its common units representing limited
partnership interests (the “Common Units”) determined as set forth herein in partial payment of
the Purchase Price under the Asset Purchase Agreement. The Common Units issued pursuant to
this Agreement are referred to as the “Units”.
C. The Parent has also agreed to grant to the Investor certain piggyback registration
rights with respect to the Units, on the terms set forth herein.
The parties hereby agree as follows:
1. Purchase and Sale of Units.
1.1 Sale and Issuance of Units. Subject to the terms and conditions of this
Agreement, in consideration of the closing of the transactions contemplated by the Asset
Purchase Agreement, the Parent agrees to issue to the Investor at the Closing, and the Investor
agrees to accept, that number of Units as is equal to (a) (i) $30,000,000 divided by (ii) the
volume weighted average closing price of the Common Units as of 4:00 p.m. on the New York
Stock Exchange for the ten (10) trading days ending on the date of the announcement by the
Parent of the execution of the Asset Purchase Agreement and the ten (10) trading days following
the announcement by the Parent of the execution of the Asset Purchase Agreement, plus (b) an
additional number of Units equal to one and one half percent (1.5%) of the number of Units
determined in accordance with clause (a) of this Section 1.1.
1.2 Closing; Delivery.
(a) The issuance of the Units shall take place simultaneously with, and
at the same time and in the same manner as, the Closing on the Closing Date (as such terms are
defined in the Asset Purchase Agreement) (which time and place are designated as the
“Closing”).
(b) At the Closing, the Parent shall deliver to the Investor the Units in
book entry form through the facilities of the Depositary Trust Corporation.
Exhibit 10.1
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1.3 Defined Terms Used in this Agreement. In addition to the terms defined
above and throughout this Agreement, the following terms used in this Agreement shall be
construed to have the meanings set forth or referenced below.
(a) “Affiliate” means, with respect to a specified Person, any other
Person, whether now in existence or hereafter created, directly or indirectly controlling,
controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control” (including, with correlative meanings, “controlling,”
“controlled by” and “under common control with”) means the power to direct or cause the
direction of the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise.
(b) “Asset Purchase Agreement” has the meaning set forth in the
recitals to this Agreement.
(c) “Business Day” means any day except Saturday, Sunday or any
other day on which commercial banks located in the State of New York are authorized or
required by Law to be closed for business.
(d) “Buyer” has the meaning set forth in the recitals to this
Agreement.
(e) “Closing” has the meaning set forth in Section 1.2.
(f) “Commission” means the United States Securities and Exchange
Commission.
(g) “Common Units” has the meaning set forth in the recitals to this
Agreement.
(h) “Confidential Information” means any confidential information
provided to the Investor regarding the Parent and its Affiliates or any fact relating to discussions
or negotiations with the Parent in connection with the Transaction Documents.
(i) “Credit Facility” means that certain Credit Agreement dated
December 9, 2014 among ▇▇▇▇▇▇▇ Operating Resources LLC, the several lenders parties thereto,
and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated and/or
supplemented from time to time.
(j) “Damages” means any loss, damage, claim or liability (joint or
several) to which a party hereto may become subject under the Securities Act, the Exchange Act,
or other federal or state law, insofar as such loss, damage, claim or liability (or any action in
respect thereof) arises out of or is based upon: (i) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement of the Parent, including any
preliminary prospectus or final prospectus contained therein or any amendments or supplements
thereto; (ii) an omission or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading; or (iii) any violation or
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alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities
Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the
Securities Act, the Exchange Act, or any state securities law.
(k) “Delaware LP Act” means the Delaware Revised Uniform
Limited Partnership Act.
(l) “Exchange Act” means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the Commission promulgated
thereunder.
(m) “Excluded Registration” means (i) a registration relating to the
sale of securities to employees of the Parent or an Affiliate pursuant to an equity option,
purchase, or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a
registration on any form that does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the Registrable Securities;
or (iv) a registration in which the only Common Units being registered are Common Units
issuable upon conversion of debt securities that are also being registered.
(n) “GAAP” has the meaning set forth in Section 2.8.
(o) “General Partner” means ▇▇▇▇▇▇▇ Resources GP LLC, a
Delaware limited liability company.
(p) “Governmental Authority” means, with respect to a particular
Person, any country, state, county, city and political subdivision in which such Person or such
Person’s Property is located or which exercises valid jurisdiction over any such Person or such
Person’s Property, and any court, agency, department, commission, board, bureau or
instrumentality of any of them (including the Internal Revenue Service and any foreign, state or
local tax authorities) and any monetary authority that exercises valid jurisdiction over any such
Person or such Person’s Property.
(q) “Investor” has the meaning set forth in the introductory paragraph
to this Agreement.
(r) “Knowledge,” including the phrase “to the knowledge of the
Parent,” or similar phrases, shall mean the actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇.
(s) “Law” means any applicable federal, state, local or foreign order,
writ, injunction, judgment, settlement, award, decree, statute, law, rule, rule of common law or
regulation promulgated by a Governmental Authority.
(t) “Lien” means any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether such interest is based on
the common law, statute or contract, and whether such obligation or claim is fixed or contingent,
and including, the lien or security interest arising from a mortgage, encumbrance, pledge,
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security agreement, conditional sale or trust receipt or a lease, consignment or bailment for
security purposes.
(u) “Material Adverse Effect” has the meaning set forth in Section
2.1.
(v) “Material Agreement” has the meaning set forth in Section 2.3.
(w) “NYSE” means the New York Stock Exchange.
(x) “Parent” has the meaning set forth in the introductory paragraph
to this Agreement.
(y) “Partnership Agreement” means the First Amended and Restated
Agreement of Limited Partnership of ▇▇▇▇▇▇▇ Resources LP dated October 30, 2013.
(z) “Person” means any individual, corporation, partnership, trust,
limited liability Parent, association or other entity.
(aa) “Property” means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible (including intellectual property rights).
(bb) “Registrable Securities” means (i) the Units and (ii) any Common
Units issued as (or issuable upon the conversion or exercise of any warrant, right, or other
security that is issued as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, the Units referenced in clause (i); excluding in all cases, however, any
Registrable Securities sold by a Person in a transaction in which the applicable rights under this
Agreement are not assigned pursuant to Section 7.2, and excluding any Units for which
registration rights have terminated pursuant to Section 4.2(h) of this Agreement.
(cc) “Required Approvals” has the meaning set forth in Section 2.4.
(dd) “SEC Reports” has the meaning set forth in Section 2.8.
(ee) “Securities Act” means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(ff) “Selling Expenses” means all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees
and disbursements of counsel for the Investor.
(gg) “Subordinated Units” has the meaning specified in the
Partnership Agreement.
(hh) “Subsidiary” means, with respect to any Person, any corporation,
limited liability company, partnership, association or other entity of which an aggregate of more
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than 50% of the outstanding voting equity is directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person.
(ii) “Transaction Documents” means this Agreement and the Asset
Purchase Agreement.
(jj) “Units” has the meaning set forth in the recitals to this Agreement.
2. Representations and Warranties of the Parent. The Parent hereby represents and
warrants to the Investor that, except as set forth in the SEC Reports, which exceptions shall be
deemed to be part of the representations and warranties made hereunder, the following
representations are true and complete as of the date hereof and as of the date of the Closing,
except as otherwise indicated. The Disclosure Schedule shall be arranged in sections
corresponding to the numbered and lettered sections and subsections contained in this Section 2,
and the disclosures in any section or subsection of the Disclosure Schedule shall qualify other
sections and subsections in this Section 2 to the extent it is readily apparent from a reading of the
disclosure that such disclosure is applicable to such other sections and subsections.
2.1 Organization and Qualification. The Parent and each of the Subsidiaries is
an entity duly incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, with the requisite power and
authority to own and use its properties and assets and to carry on its business as currently
conducted. Neither the Parent nor any Subsidiary is in violation or default of any of the
provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Parent and the Subsidiaries is duly qualified to conduct
business and is in good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be,
would not reasonably be expected to result in: (i) a material adverse effect on the legality,
validity or enforceability of any Transaction Document, (ii) a material adverse effect on the
results of operations, assets, business or financial condition of the Parent and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Parent’s ability to perform in any
material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii)
or (iii), a “Material Adverse Effect”).
2.2 Authorization; Enforcement. The Parent has the requisite limited
partnership power and authority to enter into and to consummate the transactions contemplated
by the Transaction Documents and otherwise to carry out its obligations hereunder and
thereunder, as applicable. The execution and delivery of this Agreement and the other
Transaction Documents by the Parent and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary action on the part of
the Parent and no further action is required by the Parent, the General Partner or the holders of
the Parent’s Common Units in connection herewith or therewith other than in connection with
the Required Approvals. This Agreement and each other Transaction Document to which it is a
party has been (or upon delivery will have been) duly executed by the Parent and, when delivered
in accordance with the terms hereof and thereof, will constitute the valid and binding obligation
{W5670291.3} 6
of the Parent enforceable against the Parent in accordance with its terms, except (i) as limited by
general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law or public policy.
2.3 No Conflicts. The execution, delivery and performance by the Parent of
this Agreement, the issuance and sale of the Units and the consummation by it of the transactions
contemplated hereby do not and will not (i) conflict with or violate any provision of the Parent’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, result in the creation of any Lien upon any
of the properties or assets of the Parent or any Subsidiary, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice, lapse of time or
both) of, any agreement, credit facility, debt or other instrument (evidencing a Parent or
Subsidiary debt or otherwise) or other understanding to which the Parent or any Subsidiary is a
party or by which any property or asset of the Parent or any Subsidiary is bound or affected and
which is filed as an exhibit to the Parent’s Annual Report on Form 10-K for the year ended
December 31, 2015 or Quarterly Reports on Form 10-Q for the quarters ended March 31, 2016,
June 30, 2016 or September 30, 2016 (a “Material Agreement”), or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority to which the Parent
or a Subsidiary is subject (including federal and state securities laws and regulations), or by
which any property or asset of the Parent or a Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as would not reasonably be expected to result in a Material
Adverse Effect.
2.4 Filings, Consents and Approvals. The Parent is not required to obtain any
consent, waiver, authorization or order of, give any notice to, or make any filing or registration
with, any court or other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Parent of this Agreement, other
than: (i) any approvals required by the Commission in connection with any registration statement
filed in connection with the registration rights granted hereunder, (ii) any approvals required by
the New York Stock Exchange with respect to the issuance and sale of the Units or the listing of
the Units thereon, and (iii) the filing of Form D with the Commission (if the Parent elects to rely
on Rule 506 of Regulation D under the Securities Act) and such filings as are required to be
made under applicable state securities laws (collectively, the “Required Approvals”).
2.5 Issuance of the Units. The Units and the limited partner interests
represented thereby will be, at the Closing, duly authorized by Parent in accordance with the
Partnership Agreement and, when issued by the Parent and paid for in accordance with this
Agreement, will be duly and validly issued, fully paid (to the extent required under the
Partnership Agreement), non-assessable (except as such non-assessability may be affected by
matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act), and will be
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free and clear of all Liens and restrictions on transfer, other than (i) restrictions on transfer under
the Partnership Agreement and under applicable state and federal securities Laws, (ii) such Liens
as are created by the Investor, and (iii) such Liens as arise under the Partnership Agreement or
the Delaware LP Act.
2.6 Capitalization. As of November 1, 2016, the issued and outstanding
limited partnership interests of Parent consist of 11,241,851 Common Units and 10,071,970
Subordinated Units, which are the only limited partnership interests of the Parent issued and
outstanding. All outstanding Common Units and Subordinated Units, together with the limited
partnership interests represented thereby, have been duly authorized and validly issued in
accordance with the Partnership Agreement and are fully paid (to the extent required under the
Partnership Agreement), and non-assessable (except as such non-assessability may be affected by
matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
2.7 Subsidiaries. All of the direct and indirect subsidiaries of the Parent are
set forth in the SEC Reports. The Parent owns, directly or indirectly, all of the capital stock or
other equity interests of each Subsidiary free and clear of any Liens (other than the Liens created
pursuant to the Credit Facility), and all of the issued and outstanding shares of capital stock or
units of membership interest of each Subsidiary have been duly authorized and validly issued and
are fully paid, non-assessable (except as such non-assessability may be affected by matters
described in Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act, in the
case of Delaware limited liability companies), and free of preemptive and similar rights to
subscribe for, or purchase, such securities.
2.8 SEC Reports; Financial Statements. The Parent has filed all reports,
schedules, forms, statements and other documents required to be filed by the Parent under the
Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two years preceding the date hereof (or such shorter period as the Parent was required by law or
regulation to file such material) (the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed
any such SEC Report prior to the expiration of any such extension. As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the Securities Act and
the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The financial statements of the Parent included in the SEC
Reports complied in all material respects with applicable accounting requirements and the rules
and regulations of the Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in all material respects in accordance with United States
generally accepted accounting principles applied on a consistent basis during the periods
involved (“GAAP”), except as may be otherwise specified in such financial statements or the
notes thereto and except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial position of the Parent
and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and
{W5670291.3} 8
cash flows for the periods then ended, subject, in the case of unaudited statements, to normal,
year-end audit adjustments.
2.9 Material Changes. Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report
filed prior to the date hereof, there has been no event, occurrence or development specific to the
Parent, any Subsidiary or any of their respective businesses or assets that has had or that would
reasonably be expected to result in a Material Adverse Effect. For the avoidance of doubt, the
representation and warranty set forth in this Section 2.9 shall not apply to any event, occurrence
or development affecting the economy as a whole or the industries in which the Parent or any
Subsidiary operate.
2.10 Litigation. Except as disclosed in the SEC Reports, there is no action, suit,
inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the
Parent, threatened, against or affecting the Parent, any Subsidiary or any of their respective
properties before or by any court, arbitrator, governmental or administrative agency or regulatory
authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely
affects or challenges the legality, validity or enforceability of any of this Agreement or the Units
or (ii) would, if there were an unfavorable decision, reasonably be expected to result in a Material
Adverse Effect.
2.11 Compliance. Except as disclosed in the SEC Reports, neither the Parent
nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has
not been waived that, with notice or lapse of time or both, would result in a default by the Parent
or any Subsidiary under), nor has the Parent or any Subsidiary received notice of a claim that it is
in default under or that it is in violation of, any Material Agreement, (ii) is in violation of any
judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has
been in violation of any statute, rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case as would not reasonably be expected to result
in a Material Adverse Effect.
2.12 Certain Fees. Except as set forth in the Asset Purchase Agreement, no
brokerage or finder’s fees or commissions are or will be payable by the Parent or any Subsidiary
to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank
or other Person with respect to the transactions contemplated by this Agreement. The Purchasers
shall have no obligation with respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by this Agreement.
2.13 Private Placement. Assuming the accuracy of the Investor’s
representations and warranties set forth in this Agreement, no registration under the Securities
Act is required for the offer and sale of the Units by the Parent to the Investor as contemplated
hereby.
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2.14 Investment Company. The Parent is not, and is not an Affiliate of, and
immediately after the issuance of the Units, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
2.15 Listing and Maintenance Requirements. The Parent’s Common Units are
registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Parent has taken no
action designed to, or which to its knowledge is likely to have the effect of, terminating the
registration of such units under the Exchange Act nor has the Parent received any notification
that the Commission is contemplating terminating such registration. The Parent has not, in the 12
months preceding the date hereof, received notice from the NYSE to the effect that the Parent is
not in compliance with the listing or maintenance requirements thereof. The Parent is, and has no
reason to believe that it will not in the foreseeable future continue to be, in compliance with all
such listing and maintenance requirements. The Units are currently eligible for electronic transfer
through the American Stock Transfer & Trust Company and the Parent is current in payment of
fees thereto in connection with such electronic transfer.
3. Representations and Warranties of the Investor. The Investor hereby represents
and warrants as of the date hereof and as of the Closing to the Parent as follows (unless such
representation or warranty is as of a date otherwise specified):
3.1 Organization; Authority. The Investor is an entity duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its incorporation with
full right, corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement and performance by the Investor of the transactions
contemplated hereby have been duly authorized by all necessary corporate action on the part of
the Investor. This Agreement has been duly executed by the Investor, and when delivered by the
Investor in accordance with the terms hereof, will constitute the valid and legally binding
obligation of the Investor, enforceable against it in accordance with its terms, except: (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights
generally, (ii) as limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions
may be limited by applicable law.
3.2 No Conflicts. The execution, delivery and performance by the Investor of
this Agreement, the issuance and sale of the Units and the consummation by it of the transactions
contemplated hereby do not and will not (i) conflict with or violate any provision of the
Investor’s certificate or articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, result in the creation of any Lien upon any of the
properties or assets of the Investor, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing an Investor debt or otherwise) or other
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understanding to which the Investor is a party or by which any property or asset of the Investor is
bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Investor is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Investor is bound or affected;
except in the case of each of clauses (ii) and (iii), such as would not reasonably be expected to
result in a Material Adverse Effect.
3.3 Understandings or Arrangements. The Investor understands that the Units
are “restricted securities” and have not been registered under the Securities Act or any applicable
state securities law and is acquiring the Units as principal for its own account and not with a view
to or for distributing or reselling such Units or any part thereof in violation of the Securities Act
or any applicable state securities law, has no present intention of distributing any of such Units in
violation of the Securities Act or any applicable state securities law and has no direct or indirect
arrangement or understandings with any other persons to distribute or regarding the distribution
of such Units in violation of the Securities Act or any applicable state securities law (this
representation and warranty not limiting the Investor’s right to sell the Units pursuant to an
effective registration statement or otherwise in compliance with applicable federal and state
securities laws).
3.4 Unregistered Securities.
(a) Accredited Investor Status; Sophisticated Investor. The Investor is an
“accredited investor” within the meaning of Rule 501 under the Securities Act and is able
to bear the risk of its investment in the Units. The Investor has such knowledge and
experience in financial and business matters that it is capable of evaluating the merits and
risks of the purchase of the Units.
(b) Information. The Investor has been furnished with materials relating to the
business, finances and operations of the Parent and its Subsidiaries and relating to the
offer and sale of the Units that have been requested by the Investor. The Investor has been
afforded the opportunity to ask questions of the Parent and its Subsidiaries. The Investor
understands and acknowledges that its purchase of the Units involves a high degree of
risk and uncertainty. The Investor has sought such accounting, legal and tax advice as it
has considered necessary to make an informed investment decision with respect to its
investment in the Units.
(c) Investor Representation. The Investor is purchasing the Units for its own
account and not with a view to distribution in violation of any securities Laws. The
Investor has been advised and understands and acknowledges that none of the Units have
been registered under the Securities Act or under the “blue sky” Laws of any jurisdiction
and may, subject to the provisions hereof, be resold only if registered pursuant to the
provisions of the Securities Act (or if eligible, pursuant to the provisions of Rule 144
promulgated under the Securities Act or pursuant to another available exemption from the
registration requirements of the Securities Act). The Investor has been advised of and is
{W5670291.3} 11
aware of the provisions of Rule 144 promulgated under the Securities Act. The Investor
acknowledges and understands that the Parent is relying upon, among other things, the
representations and warranties of the Investor in this Agreement in concluding that the
offer and sale of the Units hereunder will be exempt from the registration requirements of
the Securities Act.
(d) Legend. The Investor understands and acknowledges that, until such time
as the Units have been registered pursuant to the provisions of the Securities Act, or the
Units are eligible for resale, subject to the provisions hereof, pursuant to Rule 144
promulgated under the Securities Act without any restriction as to the number of
securities as of a particular date that can then be immediately sold, the Units will bear the
following restrictive legend:
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE
CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD
PURSUANT TO RULE 144 UNDER SUCH ACT OR THE ISSUER HAS RECEIVED
DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH
TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT. THIS
SECURITY IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN
THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
▇▇▇▇▇▇▇ RESOURCES LP (AS AMENDED, RESTATED OR OTHERWISE MODIFIED
FROM TIME TO TIME), A COPY OF WHICH MAY BE OBTAINED FROM THE
PARTNERSHIP AT ITS PRINCIPAL EXECUTIVE OFFICES.”
3.5 Parent Information. The Investor acknowledges and agrees that the Parent
has provided or made available to the Investor (through ▇▇▇▇▇, the Parent’s website or
otherwise) all SEC Reports.
3.6 Certain Fees. Except as set forth in Section 3.6 of the Disclosure
Schedules, no brokerage or finder’s fees or commissions are or will be payable by the Investor to
any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by this Agreement. Neither the Parent
nor any of its Subsidiaries shall have any obligation with respect to any fees or with respect to
any claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by this Agreement.
4. Covenants.
4.1. Public Disclosure; Confidentiality.
(a) Notwithstanding anything to the contrary contained herein, except as may
be required to comply with the requirements of any applicable Law, the Investor shall not,
{W5670291.3} 12
and the Investor will cause its respective Affiliates not to, from and after the date hereof,
issue any press release or other public communication in respect of this Agreement or
otherwise disclose the identity of, or any other information concerning, the other parties
without (i) the prior written approval of the Parent (which approval shall not be
unreasonably withheld, conditioned or delayed by any party) and (ii) providing the Parent
a reasonable opportunity to review and comment on such disclosure (with such comments
being incorporated or reflected, to the extent reasonable, in any such disclosure).
(b) The Investor agrees that it will keep confidential and will not disclose,
divulge or use for any purpose, other than to monitor its investment in the Parent, any
Confidential Information obtained from the Parent and its Subsidiaries pursuant to the
terms of this Agreement.
4.2 Piggyback Registration Rights.
(a) Registration Rights. If the Parent proposes to register any of its Common
Units under the Securities Act in connection with the public offering of such securities
solely for cash (other than in an Excluded Registration), the Parent shall give the Investor
notice of such registration as promptly as practicable. Upon the request of the Investor
given within ten (10) days after such notice is given by the Parent, the Parent shall,
subject to the provisions of Section 4.2(b), cause to be registered all of the Registrable
Securities that the Investor has requested to be included in such registration. The Parent
shall have the right to terminate or withdraw any registration initiated by it under this
Section 4.2(a) before the effective date of such registration, whether or not the Investor
has elected to include Registrable Securities in such registration. The expenses (other
than Selling Expenses) of such withdrawn registration shall be borne by the Parent in
accordance with Section 4.2(e).
(b) Underwriting Requirements. In connection with any offering involving an
underwriting of Common Units pursuant to Section 4.2(a), the Parent shall not be
required to include any of the Investor’s Registrable Securities in such underwriting
unless the Investor accepts the terms of the underwriting as agreed upon between the
Parent and its underwriters, and then only in such quantity as the underwriters in their
sole discretion determine will not jeopardize the success of the offering by the Parent. If
the total number of Registrable Securities requested by the Investor to be included in such
offering exceeds the number of securities to be sold (other than by the Parent) that the
underwriters in their reasonable discretion determine is compatible with the success of the
offering, then the Parent shall be required to include in the offering only that number of
such Registrable Securities which the underwriters and the Parent in their sole discretion
determine will not jeopardize the success of the offering, with the securities, if any, so
included to be apportioned pro rata among the Investor and the other holders according to
the total amount of Registrable Securities entitled to be included in the registration
statement owned by each such holder.
{W5670291.3} 13
(c) Obligations of the Parent. In connection with its obligations under this
Section 4.2, the Parent shall:
(i) prepare and file with the Commission the registration statements
with respect to the Registrable Securities in accordance with the terms of this
Agreement and use its commercially reasonable efforts to cause such registration
statements to become effective and keep such registration statements effective
until the distribution contemplated in such registration statements has been
completed and as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of the securities covered by such
registration statements;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statements, and the prospectus used in
connection with such registration statements, as may be necessary to comply with
the Securities Act in order to enable the disposition of all securities covered by
such registration statement;
(iii) furnish to the Investor such numbers of copies of a prospectus,
including a preliminary prospectus, as required by the Securities Act, and such
other documents as the Investor may reasonably request in order to facilitate its
disposition of its Registrable Securities;
(iv) use its commercially reasonable efforts to register and qualify the
securities covered by such registration statements under such other securities or
blue-sky laws of such jurisdictions as shall be reasonably requested by the
Investor; provided that the Parent shall not be required to qualify to do business or
to file a general consent to service of process in any such states or jurisdictions,
unless the Parent is already subject to service in such jurisdiction and except as
may be required by the Securities Act;
(v) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the underwriter(s) of such offering;
(vi) use its commercially reasonable efforts to cause all such
Registrable Securities covered by such registration statements to be listed on a
national securities exchange or trading system and each securities exchange and
trading system (if any) on which similar securities issued by the Parent are then
listed;
(vii) provide a transfer agent and registrar for all Registrable Securities
registered pursuant to this Agreement and provide a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
{W5670291.3} 14
(viii) notify the Investor, promptly after the Parent receives notice
thereof, of the time when such registration statement has been declared effective
or a supplement to any prospectus forming a part of such registration statement
has been filed; and
(ix) after such registration statement becomes effective, notify the
Investor of any request by the Commission that the Parent amend or supplement
such registration statement or prospectus.
(d) Furnish Information. It shall be a condition precedent to the obligations of
the Parent to take any action pursuant to this Section 4.2 with respect to the Registrable
Securities of the Investor that such Investor shall furnish to the Parent such information
regarding itself, the Registrable Securities held by it, and the intended method of
disposition of such securities as is reasonably required to effect the registration of the
Investor’s Registrable Securities.
(e) Expenses of Registration. All expenses (other than Selling Expenses)
incurred in connection with registrations, filings, or qualifications pursuant to this Section
4.2, including all registration, filing, and qualification fees; printers’ and accounting fees;
fees and disbursements of counsel for the Parent shall be borne and paid by the Parent.
All Selling Expenses relating to Registrable Securities registered pursuant to this Section
4.2 shall be borne and paid by the Investor.
(f) Delay of Registration. The Investor shall not have any right to obtain or
seek an injunction restraining or otherwise delaying any registration pursuant to this
Agreement as the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 4.2.
(g) Indemnification. If any Registrable Securities are included in a
registration statement under this Section 4.2:
(i) To the extent permitted by law, the Parent will indemnify and hold
harmless the Investor, and the officers, directors, and stockholders of the Investor;
legal counsel and accountants for the Investor; any underwriter (as defined in the
Securities Act) for the Investor; and each Person, if any, who controls the Investor
or underwriter within the meaning of the Securities Act or the Exchange Act,
against any Damages, and the Parent will pay to the Investor, underwriter,
controlling Person, or other aforementioned Person any legal or other expenses
reasonably incurred thereby in connection with investigating or defending any
claim or proceeding from which Damages may result, as such expenses are
incurred; provided, however, that the indemnity agreement contained in this
Section 4.2(g)(i) shall not apply to amounts paid in settlement of any such claim
or proceeding if such settlement is effected without the consent of the Parent,
which consent shall not be unreasonably withheld, conditioned or delayed, nor
shall the Parent be liable for any Damages to the extent (and only to the extent)
that they arise out of or are based upon actions or omissions made in reliance upon
{W5670291.3} 15
and in conformity with written information furnished by or on behalf of the
Investor expressly for use in connection with such registration.
(ii) To the extent permitted by law, the Investor will indemnify and
hold harmless the Parent, its General Partner, its Subsidiaries, and each of their
respective directors (or similar governing persons), each of its officers who has
signed the registration statement, each Person (if any), who controls the Parent
within the meaning of the Securities Act, legal counsel and accountants for the
Parent, any underwriter (as defined in the Securities Act), any other holder of
Common Units selling securities in such registration statement, and any
controlling Person of any such underwriter or other holder, against any Damages,
in each case only to the extent that such Damages arise out of or are based upon
actions or omissions made in reliance upon and in conformity with written
information furnished by or on behalf of the Investor expressly for use in
connection with such registration; and the Investor will pay to the Parent and each
other aforementioned Person any legal or other expenses reasonably incurred
thereby in connection with investigating or defending any claim or proceeding
from which Damages may result, as such expenses are incurred; provided,
however, that the indemnity agreement contained in this Section 4.2(g)(ii) shall
not apply to amounts paid in settlement of any such claim or proceeding if such
settlement is effected without the consent of the Investor, which consent shall not
be unreasonably withheld, conditioned or delayed; and provided further that in no
event shall the aggregate amounts payable by the Investor by way of indemnity or
contribution under this Section 4.2(g) exceed the proceeds from the offering
received by the Investor (net of any Selling Expenses paid by the Investor), except
in the case of fraud or willful misconduct by the Investor.
(iii) Promptly after receipt by an indemnified party under this Section
4.2(g) of notice of the commencement of any action (including any governmental
action) for which a party may be entitled to indemnification hereunder, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 4.2(g), give the indemnifying party notice
of the commencement thereof. The indemnifying party shall have the right to
participate in such action and, to the extent the indemnifying party so desires,
participate jointly with any other indemnifying party to which notice has been
given, and to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party (together with all other
indemnified parties that may be represented without conflict by one counsel) shall
have the right to retain one separate counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other party
represented by such counsel in such action. The failure to give notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this Section 4.2(g) to the extent that such failure materially prejudices
{W5670291.3} 16
the indemnifying party’s ability to defend such action. The failure to give notice
to the indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 4.2(g).
(iv) To provide for just and equitable contribution to joint liability
under the Securities Act in any case in which either: (i) any party otherwise
entitled to indemnification hereunder makes a claim for indemnification pursuant
to this Section 4.2(g) but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such indemnification may
not be enforced in such case, notwithstanding the fact that this Section 4.2(g).
provides for indemnification in such case, or (ii) contribution under the Securities
Act may be required on the part of any party hereto for which indemnification is
provided under this Section 4.2(g), then, and in each such case, such parties will
contribute to the aggregate losses, claims, damages, liabilities, or expenses to
which they may be subject (after contribution from others) in such proportion as is
appropriate to reflect the relative fault of each of the indemnifying party and the
indemnified party in connection with the statements, omissions, or other actions
that resulted in such loss, claim, damage, liability, or expense, as well as to reflect
any other relevant equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by reference to, among
other things, whether the untrue or allegedly untrue statement of a material fact, or
the omission or alleged omission of a material fact, relates to information supplied
by the indemnifying party or by the indemnified party and the parties’ relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission; provided, however, that, in any such case (x) the
Investor will not be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered and sold by the Investor
pursuant to such registration statement, and (y) no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) will
be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation; and provided further that in no event shall the Investor’s
liability pursuant to this Section 4.2(g). exceed the proceeds from the offering
received by the Investor (net of any Selling Expenses paid by the Investor), except
in the case of willful misconduct or fraud by the Investor.
(h) Termination of Registration Rights. The right of the Investor to request
registration or inclusion of Registrable Securities in any registration pursuant to this
Agreement shall terminate upon the earliest to occur of:
(i) such time as all Registrable Securities held by the Investor may be
sold pursuant to Rule 144 promulgated under the Securities Act
during a three-month period without registration or restriction; and
(ii) the third anniversary of the date of this Agreement.
{W5670291.3} 17
5. Conditions to the Investors’ Obligations at Closing. The obligations of the
Investor to accept the Units at the Closing as a portion of the Purchase Price in lieu of a cash
payment equal to the Unit Value are subject to the fulfillment, on or before such Closing, of each
of the following conditions, unless otherwise waived:
5.1 Representations and Warranties. The representations and warranties of the
Parent contained in Section 2 shall be true and correct in all respects as of the Closing.
5.2 Performance. The Parent shall have performed and complied with all
covenants, agreements, obligations and conditions contained in this Agreement that are required
to be performed or complied with by the Parent on or before the Closing.
5.3 Compliance Certificate. The President of the Parent shall deliver to the
Investors at the Closing a certificate certifying that the conditions specified in Subsections 5.1
and 5.2 have been fulfilled.
5.4 Qualifications. All authorizations, approvals or permits, if any, of any
governmental authority or regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Units pursuant to this Agreement shall be
obtained and effective as of the Closing.
5.5 President’s Certificate. The President of the Parent shall have delivered to
the Investor at the Closing a certificate certifying resolutions of the General Partner approving
this Agreement and the transactions contemplated hereby.
5.6 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents incident thereto
shall be reasonably satisfactory in form and substance to the Investor, and the Investor (or its
counsel) shall have received all such counterpart original and certified or other copies of such
documents as reasonably requested. Such documents may include good standing certificates.
5.7 Asset Purchase Agreement. The Asset Purchase Agreement shall have
been duly executed by the parties thereto, and the transactions contemplated thereby shall have
been consummated substantially simultaneously with the issuance of the Units hereunder.
5.8 Approval for Listing. The Units shall have been approved for listing on
the NYSE, subject only to notice of issuance.
6. Conditions of the Parent’s Obligations at Closing. The obligations of the Parent
to issue the Units to the Investor at the Closing as a portion of the Purchase Price in lieu of a cash
payment equal to the Unit Value are subject to the fulfillment, on or before the Closing, of each
of the following conditions, unless otherwise waived:
6.1 Representations and Warranties. The representations and warranties of the
Investor contained in Section 3 shall be true and correct in all respects as of the Closing.
{W5670291.3} 18
6.2 Performance. The Investor shall have performed and complied with all
covenants, agreements, obligations and conditions contained in this Agreement that are required
to be performed or complied with by it on or before the Closing.
6.3 Qualifications. All authorizations, approvals or permits, if any, of any
governmental authority or regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Units pursuant to this Agreement shall be
obtained and effective as of the Closing.
6.4 Asset Purchase Agreement. The Asset Purchase Agreement shall have
been duly executed by the parties thereto, and the transactions and agreements contemplated
thereby shall have been consummated and executed, respectively, substantially simultaneously
with the issuance of the Units hereunder.
6.5 Approval for Listing. The Units shall have been approved for listing on
the NYSE, subject only to notice of issuance.
7. Miscellaneous.
7.1 Survival of Warranties. Unless otherwise set forth in this Agreement, the
representations and warranties of the Parent and the Investor contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and the Closing and
shall in no way be affected by any investigation or knowledge of the subject matter thereof made
by or on behalf of the Investor or the Parent.
7.2 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Neither party may assign its rights or obligations hereunder without the prior written consent of
the other party, which consent shall not be unreasonably withheld or delayed; provided, however,
that prior to the Closing, the Parent may, without the prior written consent of the Investor, assign
all or any portion of its rights under this Agreement to one or more of its direct or indirect
wholly-owned Subsidiaries. No assignment shall relieve the assigning party of any of its
obligations hereunder.
7.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without giving effect to any choice or
conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
(a) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR BASED UPON THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA OR ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN
EACH CASE LOCATED IN THE COUNTY OF WESTCHESTER, AND EACH
PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF
PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH
{W5670291.3} 19
PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF
PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN
ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION
OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND
AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE
OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE
EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.3(b).
7.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Counterparts may be delivered via facsimile, electronic mail
(including pdf) or other transmission method and any counterpart so delivered shall be deemed to
have been duly and validly delivered and be valid and effective for all purposes.
7.5 Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or interpreting this
Agreement.
7.6 Notices. All notices, requests, consents, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have been given (a)
when delivered by hand (with written confirmation of receipt); (b) when received by the
addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date
sent by facsimile or e-mail of a pdf document (with confirmation of transmission) if sent during
normal business hours of the recipient, and on the next Business Day if sent after normal
business hours of the recipient or (d) on the third (3rd) day after the date mailed, by certified or
registered mail, return receipt requested, postage prepaid. Such communications must be sent to
{W5670291.3} 20
the respective parties at the following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 7.6):
If to Investor: Carbo Industries, Inc.
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to: Holland & Knight LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to Parent: ▇▇▇▇▇▇▇ Resources, LP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇ ▇. Scoff, Vice President,
General Counsel and Chief Compliance
Officer
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
7.7 No Finder’s Fees. Each party represents that it neither is nor will be
obligated for any finder’s fee or commission in connection with this transaction. The Investor
agrees to indemnify and to hold harmless the Parent from any liability for any commission or
compensation in the nature of a finder’s or broker’s fee arising out of this transaction (and the
costs and expenses of defending against such liability or asserted liability) for which the Investor
or any of its officers, employees, or representatives is responsible. The Parent agrees to
indemnify and hold harmless the Investor from any liability for any commission or compensation
in the nature of a finder’s or broker’s fee arising out of this transaction (and the costs and
expenses of defending against such liability or asserted liability) for which the Parent or any of
its officers, employees or representatives is responsible.
{W5670291.3} 21
7.8 Amendments and Waivers. Any term of this Agreement may be amended,
terminated or waived only with the written consent of the Parent and the Investor. Any
amendment or waiver effected in accordance with this Section 7.8 shall be binding upon the
Investor and each transferee of the Units, each future holder of all such securities, and the Parent.
7.9 Severability. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
7.10 Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party under this Agreement, upon any breach or default of any other
party under this Agreement, shall impair any such right, power or remedy of such non-breaching
or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or
an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall
any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not
alternative.
7.11 Entire Agreement. This Agreement (including the Exhibits hereto), and
the other Transaction Documents constitute the full and entire understanding and agreement
between the parties with respect to the subject matter hereof, and any other written or oral
agreement relating to the subject matter hereof existing between the parties are expressly
canceled.
[The remainder of this page is intentionally left blank.]
{W5670291.3} SIGNATURE PAGE TO UNIT PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Unit Purchase Agreement as of
the date first written above.
THE PARENT:
▇▇▇▇▇▇▇ RESOURCES, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President, General Counsel, Chief
Compliance Officer and Secretary
THE INVESTOR:
CARBO INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President