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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, is made this 5th day of January,
2001, by and between ATLAS PIPELINE PARTNERS, L.P., a Delaware limited
partnership (the "Company"), and KINGSTON OIL CORPORATION, an Ohio corporation
("Investor").
RECITALS
WHEREAS, the parties hereto have entered into a certain Purchase and
Sale Agreement, dated as of October 6, 2000 ("Purchase Agreement"), whereby
Investor is acquiring limited partnership units of the Company ("Units"), which
Units are more fully described in the Purchase Agreement; and
WHEREAS, the Company has agreed to provide Investor with the
registration rights set forth herein, and the execution and delivery of this
Agreement is a condition to closing the Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and other valuable consideration, the adequacy and sufficiency of which
is hereby acknowledged, intending to be legally bound, the parties agree as
follows:
1. Conditioned Upon Purchase Agreement. The rights, terms and
conditions of this Agreement are specifically conditioned upon the closing of
the transactions contemplated by the Purchase Agreement.
2. Definitions. Terms used herein and not otherwise defined have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"Partnership Units" means the limited partnership units of the Company.
"Holder" means any person owning or having the right to acquire
Registrable Securities or any assignee thereof in accordance with Section 14
hereof.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Act, and the declaration or ordering of effectiveness of
such registration statement or document.
"Registrable Securities" means (i) the Units issued to Investor
pursuant to the Purchase Agreement and (ii) any Partnership 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
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exchange for, or in replacement of, such Units, or other securities granted
registration rights pursuant to Section 16 of this Agreement.
"SEC" means the U.S. Securities and Exchange Commission.
"Form S-3" means such form under the Act as in effect on the date
hereof or any successor registration form under the Act subsequently adopted by
the SEC.
3. Registration. The Company, at its sole expense, shall file a
registration statement under the Act covering the registration of all of the
Units no sooner than twelve (12) months, but no later than eighteen (18) months
after the date hereof. The Company shall cause the registration to be declared
effective as promptly as practicable. The Company shall obtain, prior to the
effective date of the registration, all necessary state securities law or "Blue
Sky" permits or approvals as are reasonably requested by the Holder, and the
Company shall pay all expenses incident thereto.
4. Company Registration. If at any time after twelve (12) from the
Closing Date, the Company proposes to register (including for this purpose a
registration effected by the Company for its shareholders other than the Holder)
any of its Partnership Units under the Act in connection with the public
offering of such securities solely for cash (other than a registration relating
solely to the sale of securities to participants in a Company stock plan, a
registration relating to an acquisition or corporate reorganization or other
transaction under Rule 145 of the Act, 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)
including without limitation a Form S-3 Registration, the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) business days after
mailing of such notice by the Company in accordance with Section 16 hereof, the
Company shall, subject to the provisions of Section 9 hereof, cause to be
registered under the Act all of the Registrable Securities that each such Holder
requests to be registered. Notwithstanding the rights provided in this Section
4, nothing herein shall relieve the Company of its obligations under Section 3
with respect to any Units not otherwise registered. If an offering in connection
with which a Holder is entitled to registration under this Section 4 is an
underwritten offering, each Holder whose Registrable Securities are included in
such registration statement shall, unless otherwise agreed by the Company, offer
and sell such Registrable Securities in such underwritten offering using the
same underwriter or underwriters and, subject to the provisions of this
Agreement including, without limitation, the Company's obligations with respect
to registration expenses, on the same terms and conditions as other Partnership
Units in such underwritten offering.
5. Obligations of the Company. Whenever required under this Agreement
to effect the registration of the Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and keep such registration
statement effective for up to one hundred twenty (120) days, or such shorter
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period as is required to dispose of all securities covered by such registration
statement.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) If the Partnership Units are then listed on any exchange
or NASDAQ, prepare and file with such stock exchange or NASDAQ, if necessary, a
listing application with respect to such Registrable Securities and use its best
efforts to cause such listing application to be approved.
(d) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(e) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions or to agree to any
restrictions as to the conduct of its business in the ordinary course. The
Company will advise the Holder, promptly after it receives notice of the
issuance of any stop order, the suspension of the qualification of the Units for
offering or sale in any jurisdiction, any request by any state securities
regulating authority for amendment of the registration, or requests by any state
securities regulatory authority for additional information with respect to the
registration.
(f) Notify each Holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto
covered by such registration statement is required to be delivered under the Act
of the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
6. Duty to Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
7. Expenses of Registration. The Company shall bear and pay all
expenses other than underwriting discounts and commissions, incurred in
connection with registrations, filings or qualifications pursuant to Section 3
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hereof, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees and fees and disbursements of
counsel for the Company, including the reasonable fees and disbursements of
counsel for the Holders of the Units, but not including the cost of any fees or
disbursements of counsel for the Holders in excess of $10,000 in the aggregate.
8. Expenses of Company Registration. The Company shall bear and pay all
expenses, other than underwriting discounts and commissions, incurred in
connection with any registration, filing or qualification of Registrable
Securities with respect to the registrations pursuant to Section 4 hereof for
each Holder (which right may be assigned as provided in Section 14), including
(without limitation) all registration, filing, and qualification fees, printers'
and accounting fees relating or apportionable thereto, including the reasonable
fees and disbursements of one counsel for the Holders of the Units, but not
including the cost of any fees or disbursements of counsel for the Holders in
excess of $10,000 in the aggregate.
9. Underwriting Requirements. If the total amount of Registrable
Securities requested by Holders to be included in an offering pursuant to
Section 4 exceeds the amount of securities the underwriters reasonably believe
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number, if any, of such securities,
including Registrable Securities, which the underwriters believe will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling Holders according to the total amount of
securities entitled to be included therein owned by each selling Holder or in
such other proportions as shall mutually be agreed to by such selling Holders).
10. Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
11. Indemnification and Contribution. When any Registrable Securities
are included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will
indemnify, hold harmless and defend each Holder, the officers and directors of
each Holder, any underwriter (as defined in the Act) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning of
the Act or the 1934 Act, against any losses, claims, damages, or liabilities
(joint or several) to which each may become subject under the Act, the 1934 Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statements of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (iii) any violation or alleged violation by the Company of the
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the Act, the 1934 Act or any state securities law; and the
Company will reimburse each such Holder, officer or director, underwriter or
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controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this Section 11(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder, underwriter or controlling person or to the extent it is based
upon a violation by any such Holder of the Act, the 1934 Act, or any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder.
(b) To the extent permitted by law, each selling Holder shall
severally and not jointly indemnify, hold harmless and defend the Company, each
of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act or the 1934 Act, any underwriter and any Holder selling securities in
such registration statement or any of its directors or officers or any person
who controls such Holder or underwriter, against any losses, claims, damages, or
liabilities (joint or several) to which each may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration or to the extent it is based upon a violation by any such Holder of
the Act, the 1934 Act, or any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, controlling person, underwriter, other Holder,
officer or director, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 11(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided, further, that in no event shall
any indemnity under this Section 11(b) exceed the net proceeds from the offering
received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 11 of notice of the commencement of any action (including any
governmental action) such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 11, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with other indemnifying parties
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own 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 proceeding. The failure to deliver written
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notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 11, but the omission to so deliver written 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 11.
(d) If the indemnification provided for herein is unavailable
to an indemnified party herein in respect of any losses, claims, damages or
liabilities referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other from the offering of the Registrable Securities
or (ii) in such proportion as is appropriate to reflect not only the relative
benefits referred to above, but also the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statement or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other shall be deemed to be in the same proportion as
the total net proceeds from any such offering (before deducting expenses)
received by the indemnifying party bear to the total net proceeds received by
the indemnified party. The relative fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state 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. The indemnifying party and the indemnified party agree
that it would not be just and equitable if contribution pursuant to this Section
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding sentence. No person guilty of fraudulent misrepresentation
shall be entitled to contribution from any person.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holders under this
Section 11 shall survive the completion of any offering of Registrable
Securities.
12. Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144, as may be amended or
any successor rule of like intent ("Rule 144"), promulgated under the Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
agrees to:
(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
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(b) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Act and the 1934 Act (at any time after it has become subject to such
reporting requirements), or that it qualifies as a registrant whose securities
may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
13. Information Requests. The Holder or Holders of Registrable
Securities included in any registration shall furnish the Company such
information to the extent it is available as the Company may reasonably request
in connection with any registration, qualification or compliance.
14. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Agreement may be assigned by
a Holder to a transferee or assignee of such securities provided: (i) the Holder
agrees in writing with the transferee or assignee to assign such rights, and a
copy of such agreement is furnished to the Company within a reasonable time
after such assignment, (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect to
which such registration rights are being transferred or assigned, (iii)
immediately following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the Act and
applicable state securities laws, (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein, and (v) such transferee shall be an "Accredited
Investor" as that term defined in Rule 501 of Regulation D promulgated under the
Act.
15. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified, upon
confirmed telefax or after three (3) days if mailed by certified mail, return
receipt requested, in either case, at the following addresses:
To Company:
Atlas Pipeline Partners, L.P.
1521 Locust Street
Philadelphia, PA 19102
Attention: Michael L. Staines
Facsimile: (215) 546-5338
with a copy to:
Ledgewood Law Firm, P.C.
1521 Locust Street
Philadelphia, PA 19102
Attention: Lisa A. Ernst, Esquire
Facsimile: (215) 735-2513
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To Investor:
Kingston Oil Corporation
1800 Dietz Lane
Zanesville, OH 43701
Attention: Nicholas J. Pastay
Facsimile: (740) 452-9537
with a copy to:
Keating, Muething & Klekamp, P.L.L.
1400 Provident Tower
One East Fourth Street
Cincinnati, OH 45202
Attention: Timothy B. Matthews, Esquire
Facsimile: (513) 579-6457
or at such other address as such party may designate by ten (10) days advance
written notice to the other parties delivered in accordance with this Section.
16. Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
17. Governing Law. This Agreement shall be governed by and construed
under the laws of Delaware.
18. 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.
19. 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.
20. Amendments and Waivers. Any terms of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Investor. Any amendment or
waiver affected in accordance with this Section shall be binding upon each
holder of any securities purchased in the transaction to which this Agreement
relates at the time outstanding (including securities into which such securities
are convertible), each future holder of all such securities, and the Company.
Failure of the Investor to object or to act in a particular instance under this
Agreement shall not constitute a waiver with respect to future events covered
hereunder.
[Remainder of page intentionally left blank. Signature page to follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
ATLAS PIPELINE PARTNERS, L.P.
By: Atlas Pipeline Partners GP, LLC,
its general partner
By: ____________________________
Name:
Its:
INVESTOR:
KINGSTON OIL CORPORATION
By: ____________________________
Name:
Its:
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