REGISTRATION RIGHTS AGREEMENT BY AND AMONG LEGACY RESERVES LP AND THE PURCHASERS NAMED ON THE SIGNATURE PAGES HERETO
Exhibit
4.1
BY
AND AMONG
AND
THE
PURCHASERS NAMED ON THE SIGNATURE PAGES HERETO
TABLE
OF CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
1
|
|
Section
1.01
|
Definitions
|
1
|
|
Section
1.02
|
Registrable
Securities
|
3
|
|
Section
1.03
|
Rights
and Obligations
|
3
|
|
ARTICLE
II
|
REGISTRATION
RIGHTS
|
3
|
|
Section
2.01
|
Shelf
Registration.
|
3
|
|
Section
2.02
|
Piggyback
Rights.
|
5
|
|
Section
2.03
|
Underwritten
Offerings.
|
7
|
|
Section
2.04
|
Sale
Procedures
|
8
|
|
Section
2.05
|
Cooperation
by Holders
|
12
|
|
Section
2.06
|
Restrictions
on Public Sale by Holders of Registrable Securities
|
12
|
|
Section
2.07
|
Expenses.
|
12
|
|
Section
2.08
|
Indemnification.
|
13
|
|
Section
2.09
|
Rule
144 Reporting
|
15
|
|
Section
2.10
|
Transfer
or Assignment of Registration Rights
|
15
|
|
Section
2.11
|
Limitation
on Subsequent Registration Rights
|
16
|
|
ARTICLE
III
|
MISCELLANEOUS
|
16
|
|
Section
3.01
|
Communications
|
16
|
|
Section
3.02
|
Successor
and Assigns
|
17
|
|
Section
3.03
|
Assignment
of Rights
|
17
|
|
Section
3.04
|
Recapitalization,
Exchanges, Etc. Affecting the Units
|
17
|
|
Section
3.05
|
Aggregation
of Restricted Units
|
17
|
|
Section
3.06
|
Specific
Performance
|
17
|
|
Section
3.07
|
Counterparts
|
17
|
|
Section
3.08
|
Headings
|
17
|
|
Section
3.09
|
Governing
Law
|
17
|
|
Section
3.10
|
Severability
of Provisions
|
17
|
|
Section
3.11
|
Entire
Agreement
|
18
|
|
Section
3.12
|
Amendment
|
18
|
|
Section
3.13
|
No
Presumption
|
18
|
|
Section
3.14
|
Obligations
Limited to Parties to Agreement
|
18
|
|
Section
3.15
|
Interpretation
|
18
|
|
Section
3.16
|
Equal
Treatment of Purchasers
|
19
|
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into
as of November 8, 2007, by and among Legacy Reserves LP, a Delaware limited
partnership (the “Partnership”), and each of the Purchasers set forth on
the signature pages to this Agreement (each, a “Purchaser” and
collectively, the “Purchasers”).
WHEREAS,
this Agreement is made in connection with the Closing of the issuance and
sale
of the Restricted Units pursuant to the Unit Purchase Agreement, dated as
of
November 7, 2007, by and among the Partnership and the Purchasers (the
“Purchase Agreement”); and
WHEREAS,
the Partnership has agreed to provide the registration and other rights set
forth in this Agreement for the benefit of the Purchasers pursuant to the
Purchase Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged by each party hereto, the parties hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions. Capitalized
terms used herein without definition shall have the meanings given to them
in
the Purchase Agreement. The terms set forth below are used herein as
so defined:
“Agreement”
has the meaning specified therefor in the introductory paragraph of this
Agreement.
“Closing
Date” means November 8, 2007 or such other date as shall be agreeable to the
Parties.
“Effectiveness
Period” has the meaning specified therefor in Section 2.01(a) of this
Agreement.
“General
Partner” means Legacy Reserves GP, LLC a Delaware limited liability company
and the general partner of the Partnership.
“Holder”
means the record holder of any Registrable Securities.
“Included
Registrable Securities” has the meaning specified therefor in Section
2.02(a) of this Agreement.
“Liquidated
Damages” has the meaning specified therefor in Section 2.01(b) of
this Agreement.
1
“Liquidated
Damage Amount” has the meaning specified therefor in Section 2.01(b)
of this Agreement.
“Losses”
has the meaning specified therefor in Section 2.08(a) of this
Agreement.
“Managing
Underwriter” means, with respect to any Underwritten Offering, the
book-running lead manager of such Underwritten Offering.
“NASDAQ
Global Select Market” means the National Association of Securities Dealers
Automated Quotation System.
“Opt
Out Notice” has the meaning specified therefor in Section 2.02(a) of
this Agreement.
“Parity
Securities” has the meaning specified therefore in Section 2.02(b) of
this Agreement.
“Partnership”
has the meaning specified therefor in the introductory paragraph of this
Agreement.
“Purchase
Agreement” has the meaning specified therefor in the recitals of this
Agreement.
“Purchaser”
and “Purchasers” have the meanings specified therefor in the introductory
paragraph of this Agreement.
“Purchaser
Underwriter Registration Statement” has the meaning specified therefor in
Section 2.04(p) of this Agreement.
“Registrable
Securities” means the Restricted Units subject to the rights provided herein
until such rights terminate pursuant to the provisions hereof.
“Registration
Expenses” has the meaning specified therefor in Section 2.07(b) of
this Agreement.
“Restricted
Units” means the Units to be issued and sold to the Purchasers pursuant to
the Purchase Agreement.
“Selling
Expenses” has the meaning specified therefor in Section 2.07(b) of
this Agreement.
“Selling
Holder” means a Holder who is selling Restricted Units pursuant to a
registration statement.
“Selling
Holder Indemnified Persons” has the meaning specified therefore in
Section 2.08(a) of this Agreement.
“Shelf
Registration Statement” means a registration statement under the Securities
Act to permit the public resale of the Registrable Securities from time to
time,
including as permitted by Rule 415 under the Securities Act (or any similar
provision then in force under the Securities Act).
2
“Target
Effective Date” has the meaning specified therefore in Section
2.01(a) of this Agreement.
“Underwritten
Offering” means an offering (including an offering pursuant to a Shelf
Registration Statement) in which Units are sold to an underwriter on a firm
commitment basis for reoffering to the public or an offering that is a “bought
deal” with one or more investment banks.
“Underwritten
Offering Request” has the meaning specified therefore in Section
2.02(d) of this Agreement.
“Unit
Purchase Price” means the amount per Restricted Unit each Purchaser will pay
to the Partnership to purchase the Restricted Units.
Section
1.02 Registrable
Securities. Any Registrable Security will cease to be a
Registrable Security (a) when a registration statement covering such Registrable
Security becomes or has been declared effective by the Commission and such
Registrable Security has been sold or disposed of pursuant to such effective
registration statement; (b) when such Registrable Security has been disposed
of
pursuant to any section of Rule 144 (or any similar provision then in force)
under the Securities Act; (c) when such Registrable Security can be disposed
of
pursuant to Rule 144(k) (or any similar provision then in force) under the
Securities Act; (d) when such Registrable Security is held by the Partnership
or
one of its subsidiaries; or (e) when such Registrable Security has been sold
in
a private transaction in which the transferor’s rights under this Agreement are
not assigned to the transferee of such securities pursuant to Section 2.10
hereof.
Section
1.03 Rights
and Obligations. Except for the rights and obligations under
Section 2.08 herein, all rights and obligations of each Purchaser under this
Agreement, and all rights and obligations of the Partnership under this
Agreement with respect to such Purchaser, shall terminate when such Purchaser
is
no longer a Holder.
ARTICLE
II
REGISTRATION
RIGHTS
Section
2.01 Shelf
Registration.
(a) Deadline
To Become Effective. As soon as practicable following the Closing
Date, but in any event within 90 days of the Closing Date, the Partnership
shall
prepare and file a Shelf Registration Statement under the Securities Act
with
respect to all of the Registrable Securities. The Shelf Registration
Statement filed pursuant to this Section 2.01(a) shall be on such
appropriate registration form of the Commission as shall be selected by the
Partnership. The Partnership shall use its commercially reasonable
efforts to cause the Shelf Registration Statement to become effective no
later
than 180 days following the Closing Date (the “Target Effective
Date”). The Partnership will use its commercially reasonable
efforts to cause the Shelf Registration Statement filed pursuant to this
Section 2.01 to be continuously effective under the Securities Act until
the earlier of (i) the date as of which all such Registrable Securities are
sold
by the Purchasers and any transferee or assignee who was transferred or assigned
rights under this Agreement in accordance with Section 2.10, (ii) the
date when such Registrable Securities
3
become
eligible for resale under 144(k) under the Securities Act and (iii) two
years
from the date the Shelf Registration Statement becomes effective (the
“Effectiveness Period”). The Shelf Registration Statement when
declared effective (including the documents incorporated therein by reference)
will comply as to form in all material respects with all applicable requirements
of the Securities Act and the Exchange Act and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be
stated therein or necessary to make the statements therein not misleading
(and,
in the case of any prospectus contained in such Shelf Registration Statement,
in
the light of the circumstances under which a statement is made). As
soon as practicable following the date that the Shelf Registration Statement
becomes effective, but in any event within five (5) Business Days of such
date,
the Partnership shall provide the Purchasers with written notice of the
effectiveness of the Shelf Registration Statement.
(b) Failure
To Become Effective. If the Shelf Registration Statement required
by Section 2.01 does not become or is not declared effective on or before
the Target Effective Date, then each Purchaser shall be entitled to a payment
(with respect to the Restricted Units of each such Purchaser), as liquidated
damages and not as a penalty, of 0.25% of (i) the Unit Purchase Price multiplied
by (ii) the number of Restricted Units held by such Purchaser (such product
being the “Liquidated Damages Amount”), per the 30-day period for the
first 30 days following the 180th day after the Closing Date, increasing
by an
additional 0.25% of the Liquidated Damages Amount per each non-overlapping
30-day period for each subsequent thirty (30) day period subsequent to the
30
days following the Target Effective Date, up to a maximum of 1.00% of the
Liquidated Damages Amount per each non-overlapping 30-day period (the
“Liquidated Damages”) (i.e., 0.25% for 1-30 days; 0.5% for 31-60 days;
0.75% for 61-90 days; and 1.0% thereafter); provided, that the
aggregate amount of Liquidated Damages payable by the Partnership under this
Agreement to each Purchaser shall not exceed 10.0% of the Unit Purchase Price
multiplied by the number of Restricted Units held by such
Purchaser. The Liquidated Damages payable pursuant to the immediately
preceding sentence shall be payable within ten (10) Business Days after the
end
of each such non-overlapping 30-day period. Any Liquidated Damages
shall be paid to each Purchaser in cash or immediately available
funds.
(c) Waiver
of Liquidated Damages. If the Partnership is unable to cause a
Shelf Registration Statement to become effective by the Target Effective
Date as
a result of an acquisition, merger, reorganization, disposition or other
similar
transaction, then the Partnership may request a waiver of the Liquidated
Damages
from each Holder of Registrable Securities, which may be granted by the consent
of the Holders of a majority of the Registrable Securities; provided,
that a waiver is required from each Holder who holds 5% or more of the
Registrable Securities; and provided further, that each Holder may
waive, in their sole discretion, the payment of Liquidated Damages with respect
to such Holder’s Registrable Securities.
(d) Delay
Rights. Notwithstanding anything to the contrary contained
herein, the Partnership may, upon written notice to any Selling Holder whose
Registrable Securities are included in the Shelf Registration Statement,
suspend
such Selling Holder’s use of any prospectus which is a part of the Shelf
Registration Statement (in which event the Selling Holder shall discontinue
sales of the Registrable Securities pursuant to the Shelf Registration Statement
but may settle any previously made sales of Registrable Securities) if (i)
the
Partnership is pursuing an acquisition, merger, reorganization, disposition
or
other similar transaction and the Partnership determines in good faith that
the
Partnership’s ability to pursue or consummate such
4
a
transaction would be materially adversely affected by any required disclosure
of
such transaction in the Shelf Registration Statement or (ii) the Partnership
has
experienced some other material non-public event the disclosure of which
at such
time, in the good faith judgment of the Partnership, would materially adversely
affect the Partnership; provided, however, in no event shall the
Selling Holders be suspended from selling Registrable Securities pursuant
to the
Shelf Registration Statement for a period that exceeds an aggregate of
60 days
in any 180-day period or 90 days in any 365-day period, in each case, exclusive
of days covered by any lock-up agreement executed by a Purchaser in connection
with any Underwritten Offering. Upon disclosure of such information
or the termination of the condition described above, the Partnership shall
provide prompt notice to the Selling Holders whose Registrable Securities
are
included in the Shelf Registration Statement, and shall promptly terminate
any
suspension of sales it has put into effect and shall take such other reasonable
actions to permit registered sales of Registrable Securities as contemplated
in
this Agreement.
(e) Additional
Rights to Liquidated Damages. If (i) the Holders
shall be prohibited from selling their Registrable Securities under the Shelf
Registration Statement as a result of a suspension pursuant to Section
2.01(d) of this Agreement in excess of the periods permitted therein or (ii)
the Shelf Registration Statement is filed and declared effective but, during
the
Effectiveness Period, shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within 60 Business
Days
by a post-effective amendment to the Shelf Registration Statement, a supplement
to the prospectus or a report filed with the Commission pursuant to Section
13(a), 13(c), 14 or l5(d) of the Exchange Act, then, until the suspension
is
lifted or a post-effective amendment, supplement or report is filed with
the
Commission, but not including any day on which a suspension is lifted or
such
amendment, supplement or report is filed and declared effective, if applicable,
the Partnership shall pay the Holders an amount equal to the Liquidated Damages,
following (x) the date on which the suspension period exceeded the permitted
period or (y) the sixty-first (61st) Business
Day
after the Shelf Registration Statement ceased to be effective or failed to
be
useable for its intended purposes, as liquidated damages and not as a
penalty. For purposes of this Section 2.01(e), a suspension
shall be deemed lifted on the date that notice that the suspension has been
lifted is delivered to the Holders pursuant to Section 3.01 of this
Agreement.
(f) Termination
of Rights. Other than as set forth otherwise in this Agreement, a
Holder’s rights (and any transferee’s rights pursuant to Section 2.10)
under this Section 2.01, including rights to Liquidated Damages (other
than Liquidated Damages owing but not yet paid), shall terminate upon the
termination of the Effectiveness Period.
Section
2.02 Piggyback
Rights.
(a) Participation. If
at any time after the Lock-Up Date the Partnership proposes to file (i) a
shelf
registration statement other than the Shelf Registration Statement contemplated
by Section 2.01 or (ii) a prospectus supplement to an effective shelf
registration statement, other than the Shelf Registration Statement contemplated
by Section 2.01 of this Agreement and Holders may be included without the
filing of a post-effective amendment thereto, or (iii) at any time after
the
Lock-up Date and after the Registration Statement has been declared effective
the Partnership proposes to file a registration statement, other than a shelf
registration statement, in either case, for the sale of Units in an Underwritten
Offering for its own account and/or another
5
Person,
then as soon as practicable but not less than three Business Days following
the
engagement of counsel by the Partnership to prepare the documents to be
used in
connection with an Underwritten Offering, the Partnership shall give notice
(including, but not limited to, notification by electronic mail) of such
proposed Underwritten Offering to each Holder and such notice shall offer
Holders the opportunity to include in such Underwritten Offering such number
of
Registrable Securities (the “Included Registrable Securities”) as each
such Holder may request in writing; provided, however, that if the
Partnership has been advised by the Managing Underwriter that the inclusion
of
Registrable Securities for sale for the benefit of the Holders will have
an
adverse effect on the price, timing or distribution of the Units in the
Underwritten Offering, then (a) the Partnership shall not be required to
offer
such opportunity to the Holders or (b) if any Registrable Securities can
be
included in the Underwritten Offering in the opinion of the Managing
Underwriter, then the amount of Registrable Securities to be offered for
the
accounts of Holders shall be determined based on the provisions of Section
2.02(b); and, provided, further, that the Partnership shall not be
obligated to include any Registrable Securities in any Underwitten Offering
unless the Holders request inclusion of at least $10.0 million of Registrable
Securities in the aggregate in such Underwritten Offering. Any notice
required to be provided in this Section 2.02(a) to Holders shall be
provided on a Business Day pursuant to Section 3.01 hereof and receipt of
such notice shall be confirmed by the Holder. Each such Holder shall
then have two (2) Business Days (or one (1) Business Day in connection
with any
overnight or bought Underwritten Offering) after notice has been delivered
to
request in writing the inclusion of Registrable Securities in the Underwritten
Offering. If no written request for inclusion from a Holder is
received within the specified time, each such Holder shall have no further
right
to participate in such Underwritten Offering. If, at any time after
giving written notice of its intention to undertake an Underwritten Offering
and
prior to the closing of such Underwritten Offering, the Partnership shall
determine for any reason not to undertake or to delay such Underwritten
Offering, the Partnership may, at its election, give written notice of
such
determination to the Selling Holders and, (x) in the case of a determination
not
to undertake such Underwritten Offering, shall be relieved of its obligation
to
sell any Included Registrable Securities in connection with such terminated
Underwritten Offering, and (y) in the case of a determination to delay
such
Underwritten Offering, shall be permitted to delay offering any Included
Registrable Securities for the same period as the delay in the Underwritten
Offering. Any Selling Holder shall have the right to withdraw such
Selling Holder’s request for inclusion of such Selling Holder’s Registrable
Securities in such Underwritten Offering by giving written notice to the
Partnership of such withdrawal up to and including the time of pricing
of such
Underwritten Offering. Notwithstanding the foregoing, any Holder
holding $10.0 million or more of Restricted Units, based on the Unit Purchase
Price, may deliver written notice (an “Opt Out Notice”) to the
Partnership requesting that such Holder not receive notice from the Partnership
of any proposed Underwritten Offering; provided, that, such Holder may
later revoke any such Opt Out Notice. Following receipt of an Opt Out
Notice from a Holder (unless subsequently revoked), the Partnership shall
not be
required to deliver any notice to such Holder pursuant to this Section
2.02(a) and such Holder shall no longer be entitled to participate in
Underwritten Offerings by the Partnership pursuant to this Section
2.02(a).
(b) Priority. If
the Managing Underwriter or Underwriters of any proposed Underwritten Offering
of Units included in an Underwritten Offering involving Included Registrable
Securities advises the Partnership that the total amount of Registrable
Securities that the Selling Holders and any other Persons intend to include
in
such offering exceeds the number
6
that
can
be sold in such offering without being likely to have an adverse effect
on the
price, timing or distribution of the Units offered or the market for the
Units,
then the Units to be included in such Underwritten Offering shall include
the
number of Registrable Securities that such Managing Underwriter or Underwriters
advises the Partnership can be sold without having such adverse effect,
with
such number to be allocated (i) first, to the Partnership; (ii) second,
as
provided in the Registration Rights Agreement dated as of March 15, 2006
by and
among Legacy, the General Partner and Friedman, Billings, ▇▇▇▇▇▇ & Co.;
(iii) third, pursuant to the Registration Rights Agreement dated March
15, 2006
by and among Legacy, the General Partner and other parties thereto; (iv)
fourth,
pursuant to the Registration Rights Agreement dated June 29, 2006 between
▇▇▇▇▇
Holding LP, Legacy and the General Partner; (v) fifth, pursuant to the
Registration Rights Agreement dated April 16, 2007 by and among ▇▇▇▇▇▇▇
&
Associates, Inc., Legacy and the General Partner;and (vi) sixth, pro rata
among
the Selling Holders who have requested participation in such Underwritten
Offering and any other holder of securities of the Partnership having rights
of
registration on parity with the Registrable Securities (the “Parity
Securities”). The pro rata allocations for each Selling Holder
who have requested participation in such Underwritten Offering shall be
the
product of (a) the aggregate number of Registrable Securities proposed
to be
sold by all Selling Holders in such Underwritten Offering multiplied by
(b) the
fraction derived by dividing (x) the number of Registrable Securities owned
on
the Closing Date by such Selling Holder by (y) the aggregate number of
Registrable Securities owned on the Closing Date by all Selling Holders
and
holders of Parity Securities participating in the Underwritten
Offering
(c) Termination
of Piggyback Registration Rights. Each Holder’s rights under
Section 2.02 shall terminate upon the date that is two years from the
Closing Date.
(d) Request
for Underwritten Offering. If one or more Selling Holders elect
to dispose of Registrable Securities under the Shelf Registration Statement
and
reasonably anticipate gross proceeds of greater than twenty five million
dollars
($25,000,000.00) from such Underwritten Offering, the Partnership shall,
at the
request of such Selling Holders (each, an “Underwritten Offering
Request”), enter into an underwriting agreement in customary form with the
Managing Underwriter or Underwriters, which shall include, among other
provisions, indemnities to the effect and to the extent provided in Section
2.08, and shall take all such other reasonable actions as are requested by
the Managing Underwriter to expedite or facilitate the disposition of the
Registrable Securities; provided, however, that the Selling Holders will
not
make more than one Underwritten Offering Request in any 180-day
period.
Section
2.03 Underwritten
Offerings.
(a) General
Procedures. In connection with any Underwritten Offering under
this Agreement, the Partnership shall be entitled to select the Managing
Underwriter or Underwriters. In connection with an Underwritten
Offering contemplated by this Agreement in which a Selling Holder participates,
each Selling Holder and the Partnership shall be obligated to enter into
an
underwriting agreement that contains such representations, covenants,
indemnities and other rights and obligations as are customary in underwriting
agreements for firm commitment offerings of securities. No Selling
Holder may participate in such Underwritten Offering unless such Selling
Holder
agrees to sell its Registrable Securities on the basis provided in such
underwriting agreement and completes and executes all questionnaires, powers
of
attorney,
7
indemnities
and other documents reasonably required under the terms of such underwriting
agreement. Each Selling Holder may, at its option, require that any
or all of the representations and warranties by, and the other agreements
on the
part of, the Partnership to and for the benefit of such underwriters also
be
made to and for such Selling Holder’s benefit and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement also be conditions precedent to its
obligations. No Selling Holder shall be required to make any
representations or warranties to or agreements with the Partnership or
the
underwriters other than representations, warranties or agreements regarding
such
Selling Holder, its authority to enter into such underwriting agreement
and to
sell, and its ownership of, the securities being registered on its behalf,
its
intended method of distribution and any other representation required by
Law. If any Selling Holder disapproves of the terms of an
underwriting, such Selling Holder may elect to withdraw therefrom by notice
to
the Partnership and the Managing Underwriter; provided, however, that
such withdrawal must be made up to and including the time of pricing of
such
Underwritten Offering. No such withdrawal or abandonment shall affect
the Partnership’s obligation to pay Registration Expenses. If Holders
holding at least $10.0 million of Restricted Units based on the Unit Purchase
Price request, the Partnership’s management shall be required to participate in
a roadshow or similar marketing effort in connection with any Underwritten
Offering.
(b) No
Demand Rights. Notwithstanding any other provision of this
Agreement, no Holder of Registrable Securities shall be entitled to any “demand”
rights or similar rights that would require the Partnership to effect an
Underwritten Offering solely on behalf of such Holder, other than as provided
in
Section 2.02(d).
Section
2.04 Sale
Procedures. In connection with its obligations under this Article
II, the Partnership will, as expeditiously as possible:
(a) prepare
and file with the Commission such amendments and supplements to the Shelf
Registration Statement and the prospectus used in connection therewith as
may be
necessary to keep the Shelf Registration Statement effective for the
Effectiveness Period and as may be necessary to comply with the provisions
of
the Securities Act with respect to the disposition of all securities covered
by
the Shelf Registration Statement;
(b) if
a prospectus supplement will be used in connection with the marketing of
an
Underwritten Offering from the Shelf Registration Statement and the Managing
Underwriter at any time shall notify the Partnership in writing that, in
the
sole judgment of such Managing Underwriter, inclusion of detailed information
to
be used in such prospectus supplement is of material importance to the success
of the Underwritten Offering of such Registrable Securities, the Partnership
shall use its commercially reasonable efforts to include such information
in
such prospectus supplement;
(c) furnish
to each Selling Holder (i) as far in advance as reasonably practicable before
filing the Shelf Registration Statement or any other registration statement
contemplated by this Agreement or any supplement or amendment thereto, upon
request, copies of reasonably complete drafts of all such documents proposed
to
be filed (including exhibits and each document incorporated by reference
therein
to the extent then required by the rules and regulations of the Commission),
and
provide each such Selling Holder the opportunity to object
8
to
any
information pertaining to such Selling Holder and its plan of distribution
that
is contained therein and make the corrections reasonably requested by such
Selling Holder with respect to such information prior to filing the Shelf
Registration Statement or such other registration statement or supplement
or
amendment thereto, and (ii) such number of copies of the Shelf Registration
Statement or such other registration statement and the prospectus included
therein and any supplements and amendments thereto as such Persons may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities covered by such Shelf Registration Statement
or
other registration statement;
(d) if
applicable, use its commercially reasonable efforts to register or qualify
the
Registrable Securities covered by the Shelf Registration Statement or any
other
registration statement contemplated by this Agreement under the securities
or
blue sky laws of such jurisdictions as the Selling Holders or, in the case
of an
Underwritten Offering, the Managing Underwriter, shall reasonably request;
provided, however, that the Partnership will not be required to qualify
generally to transact business in any jurisdiction where it is not then required
to so qualify or to take any action which would subject it to general service
of
process in any such jurisdiction where it is not then so subject;
(e) promptly
notify each Selling Holder, at any time when a prospectus relating thereto
is
required to be delivered by any of them under the Securities Act, of (i)
the
filing of the Shelf Registration Statement or any other registration statement
contemplated by this Agreement or any prospectus or prospectus supplement
to be
used in connection therewith, or any amendment or supplement thereto, and,
with
respect to such Shelf Registration Statement or any other registration statement
or any post-effective amendment thereto, when the same has become effective;
and
(ii) the receipt of any written comments from the Commission with respect
to any
filing referred to in clause (i) and any written request by the
Commission for amendments or supplements to the Shelf Registration Statement
or
any other registration statement or any prospectus or prospectus supplement
thereto;
(f) immediately
notify each Selling Holder, at any time when a prospectus relating thereto
is
required to be delivered under the Securities Act, of (i) the happening of
any
event as a result of which the prospectus or prospectus supplement contained
in
the Shelf Registration Statement or any other registration statement
contemplated by this Agreement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading (in the
case
of any prospectus contained therein, in the light of the circumstances under
which a statement is made); (ii) the issuance or express threat of issuance
by
the Commission of any stop order suspending the effectiveness of the Shelf
Registration Statement or any other registration statement contemplated by
this
Agreement, or the initiation of any proceedings for that purpose; or (iii)
the
receipt by the Partnership of any notification with respect to the suspension
of
the qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction. Following the
provision of such notice, the Partnership agrees to as promptly as practicable
amend or supplement the prospectus or prospectus supplement or take other
appropriate action so that the prospectus or prospectus supplement does not
include an untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary to make the statements therein
not
misleading in the light of the circumstances then
9
existing
and to take such other commercially reasonable action as is necessary to
remove
a stop order, suspension, threat thereof or proceedings related
thereto;
(g) upon
request and subject to appropriate confidentiality obligations, furnish to
each
Selling Holder copies of any and all transmittal letters or other correspondence
with the Commission or any other governmental agency or self-regulatory body
or
other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering of Registrable Securities;
(h) in
the case of an Underwritten Offering, furnish upon request, (i) an opinion
of
counsel for the Partnership, dated the effective date of the applicable
registration statement or the date of any amendment or supplement thereto,
and a
letter of like kind dated the date of the closing under the underwriting
agreement, and (ii) a “cold comfort” letter, dated the pricing date of such
Underwritten Offering and a letter of like kind dated the date of the closing
under the underwriting agreement, in each case, signed by the independent
public
accountants who have certified the Partnership’s financial statements included
or incorporated by reference into the applicable registration statement,
and
each of the opinion and the “cold comfort” letter shall be in customary form and
covering substantially the same matters with respect to such registration
statement (and the prospectus and any prospectus supplement included therein)
as
have been customarily covered in opinions of issuer’s counsel and in
accountants’ letters delivered to the underwriters in Underwritten Offerings of
securities by the Partnership and such other matters as such underwriters
and
Selling Holders may reasonably request;
(i) otherwise
use its commercially reasonable efforts to comply with all applicable rules
and
regulations of the Commission, and make available to its security holders,
as
soon as reasonably practicable, an earnings statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158
promulgated thereunder;
(j) make
available to the appropriate representatives of the Managing Underwriter
and
Selling Holders access to such information and Partnership personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act; provided, that the Partnership need
not disclose any non-public information to any such representative unless
and
until such representative has entered into a confidentiality agreement with
the
Partnership;
(k) cause
all such Registrable Securities registered pursuant to this Agreement to
be
listed on each securities exchange or nationally recognized quotation system
on
which similar securities issued by the Partnership are then listed;
(l) use
its commercially reasonable efforts to cause the Registrable Securities to
be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Partnership
to enable the Selling Holders to consummate the disposition of such Registrable
Securities;
(m) provide
a transfer agent and registrar for all Registrable Securities covered by
such
registration statement not later than the effective date of such registration
statement;
10
(n) enter
into customary agreements and take such other actions as are reasonably
requested by the Selling Holders or the underwriters, if any, in order to
expedite or facilitate the disposition of such Registrable
Securities;
(o) if
requested by a Purchaser, (i) incorporate in a prospectus supplement or
post-effective amendment such information as such Purchaser reasonably requests
to be included therein relating to the sale and distribution of Registrable
Securities, including information with respect to the number of Registrable
Securities being offered or sold, the purchase price being paid therefor
and any
other terms of the offering of the Registrable Securities to be sold in such
offering; and (ii) make all required filings of such prospectus supplement
or
post-effective amendment after being notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and
(p) The
Partnership agrees that, if any Purchaser could reasonably be deemed to be
an
“underwriter,” as defined in Section 2(a)(11) of the Securities Act, in
connection with the registration statement in respect of any registration
of the
Registrable Securities of any Purchaser pursuant to this Agreement, and any
amendment or supplement thereof (any such registration statement or amendment
or
supplement a “Purchaser Underwriter Registration Statement”), then the
Partnership will cooperate with such Purchaser in allowing such Purchaser
to
conduct customary “underwriter’s due diligence” with respect to the Partnership
and satisfy its obligations in respect thereof. In addition, at any
Purchaser’s request, the Partnership will furnish to such Purchaser, on the date
of the effectiveness of any Purchaser Underwriter Registration Statement
and
thereafter from time to time on such dates as such Purchaser may reasonably
request, (i) a “cold comfort” letter, dated such date, from the Partnership’s
independent certified public accountants in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering, addressed to such Purchaser, (ii) an opinion,
dated as of such date, of counsel representing the Partnership for purposes
of
such Purchaser Underwriter Registration Statement, in form, scope and substance
as is customarily given in an underwritten public offering, including a standard
“10b-5” opinion for such offering, addressed to such Purchaser and (iii) a
standard officer’s certificate from the chief executive officer or chief
financial officer, or other officers serving such functions, of the General
Partner addressed to the Purchaser; provided, however, that with respect
to any
Placement Agent, the Partnership’s obligations with respect to this Section
2.04(p) shall be limited to one time, with an additional bring-down request
within 30 days of the date of such documents. The Partnership will
also permit legal counsel to such Purchaser to review and comment upon any
such
Purchaser Underwriter Registration Statement at least five (5) Business Days
prior to its filing with the Commission and all amendments and supplements
to
any such Purchaser Underwriter Registration Statement within a reasonable
number
of days prior to their filing with the Commission and not file any Purchaser
Underwriter Registration Statement or amendment or supplement thereto in
a form
to which such Purchaser’s legal counsel reasonably objects in
writing.
Each
Selling Holder, upon receipt of notice from the Partnership of the happening
of
any event of the kind described in subsection (f) of this Section
2.04, shall forthwith discontinue offers and sales of the Registrable
Securities until such Selling Holder’s receipt of the copies of the supplemented
or amended prospectus contemplated by subsection (f) of this Section
2.04 or until it is advised in writing by the Partnership that the use of
the prospectus may be resumed and
11
has
received copies of any additional or supplemental filings incorporated
by
reference in the prospectus, and, if so directed by the Partnership, such
Selling Holder will, or will request the managing underwriter or underwriters,
if any, to deliver to the Partnership (at the Partnership’s expense) all copies
in their possession or control, other than permanent file copies then in
such
Selling Holder’s possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
Section
2.05 Cooperation
by Holders. The Partnership shall have no obligation to include
Registrable Securities of a Holder in the Shelf Registration Statement or
in an
Underwritten Offering pursuant to Section 2.02(a) who has failed to timely
furnish such information that the Partnership determines, after consultation
with its counsel, is reasonably required in order for the registration statement
or prospectus supplement, as applicable, to comply with the Securities Act,
including the execution of the initial Selling Unitholder Notice and
Questionnaire attached at Exhibit A to this Agreement by the date specified
thereon.
Section
2.06 Restrictions
on Public Sale by Holders of Registrable Securities. Each Holder
of Registrable Securities agrees not to effect any public sale or distribution
of any Registrable Securities during the 30-day period beginning the day
after
the pricing date of an Underwritten Offering of equity securities by the
Partnership or its Affiliates (except as provided in this Section 2.06);
provided, however, that the duration of the foregoing restrictions
shall be no longer than the duration of the shortest restriction generally
imposed by the underwriters on the officers or directors or any other unitholder
of the Partnership on whom a restriction is imposed; provided further,
that a Purchaser shall not be subject to the restrictions, in this Section
2.06,
if such Purchaser requested to include Restricted Units in such public offer
but
was not permitted to do so due to the provisions in Section 2.02(b);
provided, further, the above shall not apply, in the case of a
Purchaser that is a large multi-unit investment or commercial banking
organization, to activities in the normal course of trading units of such
Purchaser other than the unit participating in this transaction, so long
as such
other units are not acting on behalf of the Participating Unit and have not
been
provided with confidential information regarding the Partnership by the
Participating Unit..
Section
2.07 Expenses.
(a) Expenses. The
Partnership will pay all reasonable Registration Expenses as determined in
good
faith, including, in the case of an Underwritten Offering, whether or not
any
sale is made pursuant to such Underwritten Offering. Each Selling
Holder shall pay its pro rata share of all Selling Expenses in connection
with
any sale of its Registrable Securities hereunder. In addition, except
as otherwise provided in Section 2.08 hereof, the Partnership shall not
be responsible for legal fees incurred by Holders in connection with the
exercise of such Holders’ rights hereunder.
(b) Certain
Definitions. “Registration Expenses” means all expenses
incident to the Partnership’s performance under or compliance with this
Agreement to effect the registration of Registrable Securities on the Shelf
Registration Statement pursuant to Section 2.01 or an Underwritten
Offering covered under this Agreement, and the disposition of such securities,
including, without limitation, all registration, filing, securities exchange
listing and NASDAQ Global Select Market fees, all registration, filing,
qualification and other fees and expenses of
12
complying
with securities or blue sky laws, fees of the National Association of Securities
Dealers, Inc., fees of transfer agents and registrars, all word processing,
duplicating and printing expenses, any transfer taxes and the fees and
disbursements of counsel and independent public accountants for the Partnership,
including the expenses of any special audits or “cold comfort” letters required
by or incident to such performance and compliance. “Selling
Expenses” means all underwriting fees, discounts and selling commissions or
similar fees or arrangements allocable to the sale of the Registrable
Securities.
Section
2.08 Indemnification.
(a) By
the Partnership. In the event of a registration of any
Registrable Securities under the Securities Act pursuant to this Agreement,
the
Partnership will indemnify and hold harmless each Selling Holder thereunder,
its
directors, officers, employees and agents and each underwriter, pursuant
to the
applicable underwriting agreement with such underwriter, of Registrable
Securities thereunder and each Person, if any, who controls such Selling
Holder
or underwriter within the meaning of the Securities Act and the Exchange
Act,
and its directors, officers, employees or agents (collectively, the “Selling
Holder Indemnified Persons”), against any losses, claims, damages, expenses
or liabilities (including reasonable attorneys’ fees and expenses)
(collectively, “Losses”), joint or several, to which such Selling Holder
Indemnified Person may become subject under the Securities Act, the Exchange
Act
or otherwise, insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact (in the
case
of any prospectus, in light of the circumstances under which such statement
is
made) contained in the Shelf Registration Statement or any other registration
statement contemplated by this Agreement, any preliminary prospectus, prospectus
supplement, free writing prospectus or final prospectus contained therein,
or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements therein (in the case of
a
prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each such Selling Holder Indemnified Person
for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Loss or actions or proceedings;
provided, however, that the Partnership will not be liable in any such
case if and to the extent that any such Loss arises out of or is based upon
an
untrue statement or alleged untrue statement or omission or alleged omission
so
made in conformity with information furnished by such Selling Holder Indemnified
Person in writing specifically for use in the Shelf Registration Statement
or
such other registration statement, or prospectus supplement, as
applicable. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Selling Holder
Indemnified Person, and shall survive the transfer of such securities by
such
Selling Holder.
(b) By
Each Selling Holder. Each Selling Holder agrees severally and not
jointly to indemnify and hold harmless the Partnership, its directors, officers,
employees and agents and each Person, if any, who controls the Partnership
within the meaning of the Securities Act or of the Exchange Act, and its
directors, officers, employees and agents, to the same extent as the foregoing
indemnity from the Partnership to the Selling Holders, but only with respect
to
information regarding such Selling Holder furnished in writing by or on behalf
of such Selling Holder expressly for inclusion in the Shelf Registration
Statement or any other registration
13
statement
contemplated by this Agreement, any preliminary prospectus, prospectus
supplement, free writing prospectus or final prospectus contained therein,
or
any amendment or supplement thereof; provided, however, that the
liability of each Selling Holder shall not be greater in amount than the
dollar
amount of the proceeds (net of any Selling Expenses) received by such Selling
Holder from the sale of the Registrable Securities giving rise to such
indemnification.
(c) Notice. Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, notify the indemnifying party
in
writing thereof, but the omission so to notify the indemnifying party shall
not
relieve it from any liability which it may have to any indemnified party
other
than under this Section 2.08. In any action brought against
any indemnified party, it shall notify the indemnifying party of the
commencement thereof. The indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake
the
defense thereof with counsel reasonably satisfactory to such indemnified
party
and, after notice from the indemnifying party to such indemnified party of
its
election so to assume and undertake the defense thereof, the indemnifying
party
shall not be liable to such indemnified party under this Section 2.08 for
any legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and
of
liaison with counsel so selected; provided, however, that, (i) if the
indemnifying party has failed to assume the defense or employ counsel reasonably
acceptable to the indemnified party or (ii) if the defendants in any such
action
include both the indemnified party and the indemnifying party and counsel
to the
indemnified party shall have concluded that there may be reasonable defenses
available to the indemnified party that are different from or additional
to
those available to the indemnifying party, or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests
of the
indemnifying party, then the indemnified party shall have the right to select
a
separate counsel and to assume such legal defense and otherwise to participate
in the defense of such action, with the reasonable expenses and fees of such
separate counsel and other reasonable expenses related to such participation
to
be reimbursed by the indemnifying party as incurred. Notwithstanding
any other provision of this Agreement, no indemnifying party shall settle
any
action brought against any indemnified party with respect to which such
indemnified party is entitled to indemnification hereunder without the consent
of the indemnified party, unless the settlement thereof imposes no liability
or
obligation on, and includes a complete and unconditional release from all
liability of, the indemnified party.
(d) Contribution. If
the indemnification provided for in this Section 2.08 is held by a court
or government agency of competent jurisdiction to be unavailable to any
indemnified party or is insufficient to hold them harmless in respect of
any
Losses, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Loss in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
of
such indemnified party on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations; provided, however, that in no event shall such Selling
Holder be required to contribute an aggregate amount in excess of the dollar
amount of proceeds (net of Selling Expenses) received by such Selling Holder
from the sale of Registrable Securities giving rise to such
indemnification. The relative fault of the indemnifying party on the
one hand and the indemnified party on the other shall be determined by reference
to,
14
among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or alleged omission to state a material fact has been made
by,
or relates to, information supplied by such party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or
prevent
such statement or omission. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this paragraph were
to be
determined by pro rata allocation or by any other method of allocation
which
does not take account of the equitable considerations referred to
herein. The amount paid by an indemnified party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed
to
include any legal and other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any Loss which is the
subject of this paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act)
shall be entitled to contribution from any Person who is not guilty of
such
fraudulent misrepresentation.
(e) Other
Indemnification. The provisions of this Section 2.08 shall
be in addition to any other rights to indemnification or contribution which
an
indemnified party may have pursuant to law, equity, contract or
otherwise.
Section
2.09 Rule
144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale
of the
Registrable Securities to the public without registration, the Partnership
agrees to use its commercially reasonable efforts to:
(a) Make
and keep public information regarding the Partnership available, as those
terms
are understood and defined in Rule 144 under the Securities Act, at all times
from and after the date hereof;
(b) File
with the Commission in a timely manner all reports and other documents required
of the Partnership under the Securities Act and the Exchange Act at all times
from and after the date hereof; and
(c) So
long as a Holder owns any Registrable Securities, furnish, unless otherwise
available via ▇▇▇▇▇, to such Holder forthwith upon request a copy of the
most
recent annual or quarterly report of the Partnership, and such other reports
and
documents so filed as such Holder may reasonably request in availing itself
of
any rule or regulation of the Commission allowing such Holder to sell any
such
securities without registration.
Section
2.10 Transfer
or Assignment of Registration Rights. The rights to cause the
Partnership to register Registrable Securities granted to the Purchasers
by the
Partnership under this Article II may be transferred or assigned by any
Purchaser to one or more transferee(s) or assignee(s) of such Registrable
Securities or counterparties to any total return swaps; provided,
however, that, (a) unless such transferee is an Affiliate of such
Purchaser, or a counterparty to a total return swap, each such transferee
or
assignee holds Registrable Securities representing at least $10.0 million
of the
Restricted Units, based on the Unit Purchase Price, (b) the Partnership is
given
written notice prior to any said transfer or assignment, stating the name
and
address of each such transferee and identifying the securities with respect
to
which such registration rights are being transferred or assigned, and (c)
each
such transferee assumes in writing responsibility for its portion of the
obligations of such Purchaser under this Agreement.
15
Section
2.11 Limitation
on Subsequent Registration Rights. From and after the
date hereof, the Partnership shall not, without the prior written consent
of the
Holders of a majority of the outstanding Registrable Securities, enter into
any
agreement with any current or future holder of any securities of the Partnership
that would allow such current or future holder to require the Partnership
to
include securities in any registration statement filed by the Partnership
on a
basis that is superior in any way to the registration rights granted to the
Purchasers hereunder.
ARTICLE
III
MISCELLANEOUS
Section
3.01 Communications. All
notices and other communications provided for or permitted hereunder shall
be
made in writing by facsimile, electronic mail, courier service or personal
delivery:
(a) if
to Purchaser, to the address set forth in the signature pages to the Purchase
Agreement,
with
a
copy to:
(b) if
to a transferee of Purchaser, to such Holder at the address provided pursuant
to
Section 2.10 above; and
(c) if
to the Partnership:
▇▇▇
▇.
▇▇▇▇ ▇▇. ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇,
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
with
a
copy to:
▇▇▇▇▇▇▇
▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
All
such
notices and communications shall be deemed to have been received at the time
delivered by hand, if personally delivered; when receipt acknowledged, if
sent
via facsimile or sent via Internet electronic mail; and when actually received,
if sent by courier service or any other means.
16
Section
3.02 Successor
and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including
subsequent Holders of Registrable Securities to the extent permitted
herein.
Section
3.03 Assignment
of Rights. All or any portion of the rights and obligations of
any Purchaser under this Agreement may be transferred or assigned by such
Purchaser in accordance with Section 2.10 hereof.
Section
3.04 Recapitalization,
Exchanges, Etc. Affecting the Units. The provisions of this
Agreement shall apply to the full extent set forth herein with respect to
any
and all units of the Partnership or any successor or assign of the Partnership
(whether by merger, consolidation, sale of assets or otherwise) which may
be
issued in respect of, in exchange for or in substitution of, the Registrable
Securities, and shall be appropriately adjusted for combinations, unit splits,
recapitalizations and the like occurring after the date of this
Agreement.
Section
3.05 Aggregation
of Restricted Units. All Restricted Units held or acquired by
Persons who are Affiliates of one another shall be aggregated together for
the
purpose of determining the availability of any rights under this
Agreement.
Section
3.06 Specific
Performance. Damages in the event of breach of this Agreement by
a party hereto may be difficult, if not impossible, to ascertain, and it
is
therefore agreed that each such Person, in addition to and without limiting
any
other remedy or right it may have, will have the right to an injunction or
other
equitable relief in any court of competent jurisdiction, enjoining any such
breach, and enforcing specifically the terms and provisions hereof, and each
of
the parties hereto hereby waives any and all defenses it may have on the
ground
of lack of jurisdiction or competence of the court to grant such an injunction
or other equitable relief. The existence of this right will not
preclude any such Person from pursuing any other rights and remedies at law
or
in equity which such Person may have.
Section
3.07 Counterparts. This
Agreement may be executed in any number of counterparts and by different
parties
hereto in separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section
3.08 Headings. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
Section
3.09 Governing
Law. The Laws of the State of New York shall govern this
Agreement without regard to principles of conflicts of Laws that would apply
the
substantive law of some other jurisdiction.
Section
3.10 Severability
of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting or impairing the
validity or enforceability of such provision in any other
jurisdiction.
17
Section
3.11 Entire
Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of
the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to
herein with respect to the rights granted by the Partnership set forth
herein. This Agreement and the Purchase Agreement supersede all prior
agreements and understandings between the parties with respect to such subject
matter.
Section
3.12 Amendment. This
Agreement may be amended only by means of a written amendment signed by the
Partnership and the Holders of a majority of the then outstanding Registrable
Securities; provided, however, that no such amendment shall materially
and adversely affect the rights of any Holder hereunder without the consent
of
such Holder.
Section
3.13 No
Presumption. If any claim is made by a party relating to any
conflict, omission, or ambiguity in this Agreement, no presumption or burden
of
proof or persuasion shall be implied by virtue of the fact that this Agreement
was prepared by or at the request of a particular party or its
counsel.
Section
3.14 Obligations
Limited to Parties to Agreement. Each of the Parties hereto
covenants, agrees and acknowledges that no Person other than the Purchasers
(and
their permitted assignees) and the Partnership shall have any obligation
hereunder and that, notwithstanding that one or more of the Purchasers may
be a
corporation, partnership or limited liability company, no recourse under
this
Agreement or under any documents or instruments delivered in connection herewith
or therewith shall be had against any former, current or future director,
officer, employee, agent, general or limited partner, manager, member,
stockholder or Affiliate of any of the Purchasers or any former, current
or
future director, officer, employee, agent, general or limited partner, manager,
member, stockholder or Affiliate of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or
by
virtue of any applicable Law, it being expressly agreed and acknowledged
that no
personal liability whatsoever shall attach to, be imposed on or otherwise
by
incurred by any former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or Affiliate of
any of
the Purchasers or any former, current or future director, officer, employee,
agent, general or limited partner, manager, member, stockholder or Affiliate
of
any of the foregoing, as such, for any obligations of the Purchasers under
this
Agreement or any documents or instruments delivered in connection herewith
or
therewith or for any claim based on, in respect of or by reason of such
obligation or its creation, except in each case for any assignee of a Purchaser
hereunder.
Section
3.15 Interpretation. Article
and Section references to this Agreement, unless otherwise
specified. All references to instruments, documents, contracts and
agreements are references to such instruments, documents, contracts and
agreements as the same may be amended, supplemented and otherwise modified
from
time to time, unless otherwise specified. The word “including” shall mean
“including but not limited to.” Whenever any determination, consent or approval
is to be made or given by a Purchaser under this Agreement, such action shall
be
in such Purchaser’s sole discretion unless otherwise specified.
18
Section
3.16 Equal
Treatment of Purchasers. Neither the Partnership nor any of its
Affiliates shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee, payment for the redemptions
or
exchange of Registrable Securities, or otherwise, to any holder of
Registrable Securities for or as an inducement to, or in connection with
solicitation of, any consent, waiver or amendment of any terms or provisions
of
the Registrable Securities or this Agreement or any of the other agreements
referred to in this Agreement unless such consideration is paid to all Holders
bound by such consent, waiver or amendment, whether or not such
holders so consent, waive or agree to amend.
[Signature
pages to follow]
19
IN
WITNESS WHEREOF, the Parties hereto execute this Agreement, effective as
of the
date first above written.
|
By: Legacy Reserves GP, LLC,
its
General Partner
|
|||
|
Date
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| President, Chief Financail Officer and Secretary | |||
Name
of
Holder: Alerion Equities,
LLC
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇
▇.
▇▇▇▇▇
Title
of
Authorized Signatory: Chief Operating Officer of ▇▇▇▇▇
Capital, Inc.,
The
Manager of
Holder
Name
of
Holder: Calm Waters
Partnership
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title
of
Authorized Signatory:
Managing
Partner
Name
of
Holder:
Capital
Ventures
International
by: Heights
Capital
Management,
Inc.,
its
authorized
agent
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
Investment
Manager
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: Harvest Infrastructure Partners Fund
LLC
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
CAO
& General
Counsel
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: Harvest Sharing
LLC
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
CAO
& General
Counsel
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: ▇▇▇▇ Hedge
L.P.
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇
▇▇▇▇▇▇
Title
of
Authorized Signatory:
President
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: ▇▇▇▇ MLP
LP
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇
▇▇▇▇▇▇
Title
of
Authorized Signatory:
President
[Signature
Page to Registration Rights Agreement]
Name
of
Holder:
▇▇▇▇▇▇
Brothers
Inc.
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
Vice
President
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Strategic Investments,
Inc.
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇
▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇
▇▇▇▇▇▇
Title
of
Authorized Signatory:
Vice
President
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: RCH Energy MLP Fund A,
L.P.
By: RCH
Energy MLP Fund GP, L.P., Its General
Partner
By: RR
Advisors, LLC, Its General
Partner
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name
of
Authorized Signatory: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
Sole-Member
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: RCH Energy MLP Fund,
L.P.
By: RCH
Energy MLP Fund GP, L.P., Its General
Partner
By: RR
Advisors, LLC, Its General
Partner
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name
of
Authorized Signatory: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
Sole-Member
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: RCH Energy Opportunity MLP Fund II,
L.P.
By: RCH
Energy Opportunity Fund II, LP, Its General Partner
By: RR
Advisors, LLC, Its General
Partner
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name
of
Authorized Signatory: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
Sole-Member
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: Salient Advisors
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name
of
Authorized Signatory: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Title
of
Authorized Signatory:
Director-REITs
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: Salient Trust
Co.
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Title
of
Authorized Signatory: Managing
Director
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: Structured Finance Americas,
LLC
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇
▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇
▇▇▇▇▇▇▇ / ▇▇▇▇
▇▇▇▇▇
Title
of
Authorized Signatory:
Vice
President / Vice
President
[Signature
Page to Registration Rights Agreement]
Name
of
Holder:
Telemus
Income Opportunity Fund
LP
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇▇
▇.
▇▇▇▇
Title
of
Authorized Signatory:
Managing
Member
[Signature
Page to Registration Rights Agreement]
Name
of
Holder: Tortoise
Gas and Oil
Corporation
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇
Title
of
Authorized Signatory:
Senior
Vice-President
[Signature
Page to Registration Rights Agreement]
Name
of
Holder:
▇▇▇▇▇▇▇
Capital
Ltd.
Signature
of Authorized Signatory of Holder: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name
of
Authorized
Signatory: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title
of
Authorized Signatory: Managing Director and Deputy General
Counsel
[Signature
Page to Registration Rights Agreement]