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Exhibit 4
REGISTRATION RIGHTS AGREEMENT
This Agreement, dated August __, 2001, is by and between Columbia
Energy Group, a Delaware corporation (the "Seller"), and AmeriGas Partners,
L.P., a Delaware limited partnership (the "Company").
Reference is made to the Amended and Restated Purchase Agreement dated
as of August __, 2001 (the "Purchase Agreement"), by and among the Seller,
Columbia Propane Corporation, a Delaware corporation, Columbia Propane, L.P., a
Delaware limited partnership, CP Holdings, Inc., a Delaware corporation,
AmeriGas Propane, L.P., a Delaware limited partnership, the Company, and
AmeriGas Propane, Inc., a Pennsylvania corporation, pursuant to which the
Company is issuing common limited partnership units of the Company to the
Seller.
The Company agrees with the Seller as follows:
1. DEFINITIONS. (a) As used in this Agreement and except as otherwise defined
herein, the following defined terms shall have the following meanings:
"Affiliate" of any specified Person means any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such specified Person. For purposes of this definition, control of
a Person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such Person, whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Securities" means, in relation to a Registration Statement,
the Registrable Securities identified in the related Demand Notice or the
Registrable Securities that are being included in a Piggyback Registration or a
Shelf Piggyback Registration pursuant to Section 3.
"Closing Date" means the date of the closing under the Purchase
Agreement.
"Commission" means the United States Securities and Exchange
Commission.
"Demand Notice" means a notice given by the Seller pursuant to Section
2(a).
"Effectiveness Period" means, as to a Registration Statement, the
period during which such Registration Statement is effective.
"Effective Time" means the date on which the Commission declares a
Registration Statement effective or on which a Registration Statement otherwise
becomes effective.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended.
"Notice of Piggyback Registration Rights" means as defined in Section 3
hereof.
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"Notice of Shelf Piggyback Registration Rights" means as defined in
Section 3 hereof.
"Person" means an individual, partnership, limited partnership,
corporation, trust, limited liability company or unincorporated organization or
other entity or organization, including a government or agency or political
subdivision thereof.
"Piggyback Registration" means as defined in Section 3 hereof.
"Prospectus" means the prospectus (including any preliminary
prospectus, any final prospectus and any prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A under the Securities Act) included in a
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Applicable
Securities covered by a Registration Statement, and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
"Registrable Securities" means the Securities, other than Unrestricted
Securities.
"Registration" means a registration under the Securities Act effected
pursuant to Section 2 or 3 hereof.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with any Registration of the Registrable Securities
pursuant to this Agreement, including all registration, filing and New York
Stock Exchange fees, all fees and expenses of complying with securities or "blue
sky" laws, all word-processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, premiums and other costs of policies of insurance obtained by the
Company against liabilities arising out of the public offering of the
Registrable Securities being registered, but excluding fees and disbursements of
counsel retained by the Seller, premiums and other costs of policies of
insurance obtained by the Seller or its agents or Underwriter against
liabilities arising out of the public offering of the Registrable Securities
being registered, any fees and disbursements of underwriters and all
underwriting discounts and commissions and transfer taxes, if any, relating to
the Registrable Securities.
"Registration Statement" means a registration statement filed under the
Securities Act by the Company pursuant to the provisions of Section 2 or 3
hereof, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such registration
statement.
"Rules and Regulations" means the published rules and regulations of
the
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Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Securities" means the common limited partnership units of the Company
that are being issued to the Seller contemporaneously herewith by the Company
pursuant to the Purchase Agreement and any securities issued in respect of such
units as a result of any split, distribution, recapitalization or similar event.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Shelf Piggyback Registration" means as defined in Section 3 hereof.
"Underwriter" means any underwriter of the Applicable Securities
designated by the Seller, either pursuant to Section 2(e) or in connection with
a Piggyback Registration or a Shelf Piggyback Registration pursuant to Section
3.
"Underwriting Period" means as defined in Section 2 hereof.
"Unrestricted Securities" means any Security or Securities that (i)
have been effectively registered under the Securities Act, (ii) have been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) under circumstances in which any legend relating to
restrictions on transfer under the Securities Act is removed, (iii) have
otherwise been transferred and new securities not subject to transfer
restrictions under the Securities Act have been delivered upon such transfer by
or on behalf of the Company or (iv) would be transferable by the Seller in an
amount that is consistent with section (e) of Rule 144 or any successor rule.
(b) The words "include," "includes" and "including," when used in this
Agreement, shall be deemed to be followed by the words "without limitation."
2. DEMAND REGISTRATION.
(a) At any time following the date that is the later of (i) 90 days
after the Closing Date, or (ii) the date on which the Company files with the
Commission the audited financial statements required by the Rules and
Regulations to be filed as a result of the consummation of the transactions
contemplated by the Purchase Agreement, the Seller shall have the right, but on
not more than one occasion if the Seller requests that the Company file a shelf
Registration Statement or two occasions if the Seller does not request that the
Company file a shelf Registration Statement, between such Closing Date and the
second anniversary thereof (as extended under Section 2(b) hereof), to require
the Company to register for offer and sale under the Securities Act all or a
portion of the Registrable Securities then outstanding. As promptly as
practicable after the Company receives a notice from the Seller (a "Demand
Notice") demanding that the Company register for offer and sale under the
Securities Act Registrable Securities consisting of at least $25 million of the
Registrable Securities held by the Seller pursuant to this Agreement, subject to
Section 2(b), the Company shall (i) use reasonable efforts to file with the
Commission a Registration Statement relating to the offer and sale of the
Applicable Securities on such form as the Company may reasonably deem
appropriate;
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provided that the Company shall not, unless the Company is eligible to use a
Form S-3, be obligated to register any securities on a shelf Registration
Statement and the Company shall not, unless the Company otherwise consents, be
obligated to register securities for offer or sale on a continuous basis for
more than 30 days or in a delayed offering that is not an underwritten offering
for at least $25 million of the Registrable Securities; and, thereafter, (ii)
use reasonable efforts to cause such Registration Statement to be declared
effective under the Securities Act as promptly as practicable after the date of
filing of such Registration Statement. Subject to Section 2(b), the Company
shall use reasonable efforts to keep (I) a Registration Statement that is not a
shelf Registration Statement continuously effective in order to permit the
Prospectus forming a part thereof to be usable by the Seller for resales of the
Registrable Securities for an Effectiveness Period ending on the earlier of (x)
30 days from the Effective Time of such Registration Statement or (y) such time
as all of such securities have been disposed of by the Seller or (II) a
Registration Statement that is a shelf Registration Statement continuously
effective in order to permit the Prospectus forming a part thereof, as
supplemented, to be usable for resales of the Registrable Securities at any time
until the earlier of (x) the second anniversary of the date hereof (as extended
under Section 2(b) hereof) or (y) such time as the Seller would not be entitled
under this provision to use the shelf Registration Statement for any additional
offerings.
(b) The Company shall have the right to postpone (or, if necessary or
advisable, withdraw) the filing, or delay the effectiveness, of a Registration
Statement, or fail to keep such Registration Statement continuously effective,
or not amend or supplement the Registration Statement or included Prospectus if
the Company determines based upon the advice of counsel that it would be
advisable to disclose in the Registration Statement a financing, acquisition or
other corporate transaction or other material information, and the Company shall
have determined in good faith that such disclosure is not in the best interests
of the Company and the holders of common limited partnership units of the
Company; provided that no such postponement shall exceed 90 consecutive days, or
180 days in the aggregate during the applicable time period specified in Section
2(a) hereof, except that a failure to keep a shelf Registration Statement
continuously effective at a time other than when the Seller has given notice of
a proposal to make an underwritten offering or such an underwritten offering is
in process (the period from the time when the Seller has given notice of a
proposal to make an underwritten offering (except if such notice is withdrawn)
and the closing of such underwritten offering is referred to herein as the
"Underwriting Period") shall not be considered a postponement; and provided
further that the applicable time period specified in Section 2(a) hereof shall
be extended by the number of days of any postponement of the filing or
effectiveness of the Registration Statement pursuant to this Section 2(b). Any
Registration Statement that is withdrawn pursuant to this Section 2(b) shall be
deemed not to have been requested for purposes of Section 2(a) hereof.
(c) The Company may include in any Registration requested pursuant to
Section 2(a) hereof other securities for sale for its own account or for the
account of another Person, subject to the following sentence. In connection with
an underwritten offering, if the managing underwriter or underwriters advise the
Company that, in its or their opinion, the number of the Applicable Securities
requested by the Seller to be
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registered and the number of such other securities exceed the number that can be
sold in such offering, the Company shall include in such Registration Statement
the number of the Applicable Securities and such other securities that, in the
opinion of such managing underwriter or underwriters, can be sold as follows:
(i) first, the Applicable Securities requested to be registered, and (ii)
second, any other securities requested by the Company or another Person to be
included in such Registration.
(d) The Seller shall have the right to withdraw any such request made
pursuant to Section 2(a) hereof for the filing of a Registration Statement that
is not a shelf Registration Statement (i) prior to the time the Registration
Statement in respect of such Registration has been declared effective, (ii) upon
the issuance by a governmental agency or the Commission of a stop order,
injunction or other order that interferes with such Registration, (iii) upon the
Company's availing itself of the right to postpone the offering pursuant to
Section 2(b) hereof or (iv) if the Seller is prevented pursuant to Section 2(c)
hereof from selling all of the Applicable Securities it requested to be
registered. The Registration requested by the Seller shall only be deemed to
have been effected (and, therefore, requested) for purposes of Section 2(a)
hereof if (I) the Seller withdraws any Registration request pursuant to Section
2(a) hereof after the Commission filing fee is paid with respect thereto, except
if, as a result of the provisions of Section 2(c) hereof, less than 50% of the
Applicable Securities requested to be included in such Registration by the
Seller have been included, and (II) the Company has not availed itself of
Section 2(b) with respect to such Registration request or the Company has
availed itself of Section 2(b) and the withdrawal request is not made within 10
days after the termination of the suspension period occasioned by the Company's
exercise of its rights under Section 2(b) hereof.
(e) In the event that any Registration pursuant to this Section 2 shall
involve, in whole or in part, an underwritten offering, one co-lead managing
underwriter shall be selected by the Company and shall be reasonably acceptable
to the Seller, and the other co-lead underwriter shall be selected by the Seller
and shall be reasonably acceptable to the Company. Any additional co-managing
underwriters shall be selected by the Company.
3. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. If at any time after the Closing Date and prior
to the third anniversary thereof the Company proposes to register any of its
securities under the Securities Act for sale in an underwritten public offering,
whether or not for sale for its own account, and the registration form to be
used may be used for the registration of the Registrable Securities, the Company
will give prompt written notice to the Seller of such registration (a "Notice of
Piggyback Registration Rights"). Upon the written request of the Seller given
within five (5) business days after the Seller's receipt of the Company's notice
of the proposed offering and specifying the Registrable Securities intended to
be disposed of by the Seller and the other information about the Seller required
to be included in the Registration Statement, the Company will use its best
efforts to include in the Registration Statement all of the Registrable
Securities that the Company has been so requested to register (a "Piggyback
Registration").
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(b) Right to Piggyback on Shelf. If at any time after the Closing Date
and prior to the third anniversary thereof the Company determines to amend its
shelf registration statement to register on such registration statement all or
some of the Registrable Securities for sale in an underwritten public offering,
the Company will give prompt written notice to the Seller of such registration
(a "Notice of Shelf Piggyback Registration Rights"). Upon the written request of
the Seller given within five (5) business days after the Seller's receipt of the
Company's notice of the proposed amendment and specifying the Registrable
Securities intended to be disposed of by the Seller and the other information
about the Seller required to be included in the amendment to the shelf
Registration Statement, the Company will use its best efforts to include in the
shelf Registration Statement all of the Registrable Securities that the Company
has been so requested to register (a "Shelf Piggyback Registration").
(c) Notwithstanding the foregoing, if, at any time after giving a
Notice of Piggyback Registration Rights or Notice of Shelf Piggyback
Registration Rights, and prior to the effective date of its proposed
Registration Statement, the Company shall determine for any reason to abandon or
to delay the registration giving rise to such Registration, the Company may, at
its election, give written notice of such determination to each holder of
Registrable Securities and, thereupon, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any of the Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith) and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
of the Registrable Securities for the same period of time as the delay in
registering such other securities. Notwithstanding anything herein to the
contrary, if the Company includes all or some of the Registrable Securities in a
Registration Statement for a Shelf Piggyback Registration filed with the
Commission, the Seller's registration rights in Section 3 shall be suspended for
so long as the Registration Statement for such Shelf Piggyback Registration is
maintained continuously effective and in compliance with the Securities Act and
usable for resale of all of the Registrable Securities.
(d) Priority in Registrations. In connection with a Piggyback
Registration or an offering on a Shelf Piggyback Registration, if the managing
underwriter or underwriters advise the Company that, in its or their opinion,
the number of the Applicable Securities requested by the Seller to be registered
and the number of such other securities exceed the number that can be sold in
such offering, the Company shall include in such Registration the number of the
Applicable Securities and such other securities that, in the opinion of such
managing underwriter or underwriters, can be sold as follows: (i) first, the
securities proposed by the Company to be sold for its own account and (ii)
second, the Applicable Securities requested to be included in such registration
by the Seller.
4. REGISTRATION PROCEDURES. In connection with a Registration Statement, the
following provisions shall apply:
(a) The Company shall furnish to the Seller, prior to the Effective
Time, a copy of the Registration Statement initially filed with the Commission,
and shall furnish
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to the Seller copies of each amendment thereto and each amendment or supplement,
if any, to the Prospectus included therein.
(b) Subject to Sections 2(b) and 3(c) hereof and in respect of a
Registration Statement under Section 2 or 3 hereof, the Company shall use
reasonable efforts to promptly take such action as may be reasonably necessary
so that (i) each of the Registration Statement and any amendment thereto and the
Prospectus forming part thereof and any amendment or supplement thereto (and
each report or other document incorporated therein by reference in each case),
when it becomes effective, complies in all material respects with the Securities
Act and the Exchange Act and the respective rules and regulations thereunder,
(ii) each of the Registration Statement and any amendment thereto does not, when
it becomes effective, 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 (iii) each of the Prospectus forming part
of the Registration Statement, and any amendment or supplement to such
Prospectus, does not, at any time during the period during which the Company is
required to keep a Registration Statement continuously effective under Section
2(a) hereof, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided that the
Seller provides to the Company the information about the Seller required to be
in the Prospectus.
(c) The Company shall, promptly upon learning thereof, advise the
Seller, and shall confirm such advice in writing if so requested by the Seller:
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when
the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the
Prospectus included therein or for additional
information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for
such purpose;
(iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification
of the securities included in the Registration
Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) following the effectiveness of any Registration
Statement, other than a shelf Registration Statement
and a Shelf Piggyback Registration (in each case
except during an Underwriting Period) of the
happening of any event or the existence of any state
of facts
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that requires the making of any changes in the
Registration Statement or the Prospectus included
therein so that, as of such date, such Registration
Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state
a material fact required to be stated therein or
necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances
under which they were made) not misleading (which
advice shall be accompanied by an instruction to the
Seller to suspend the use of the Prospectus until the
requisite changes have been made, which instruction
the Seller agrees to follow).
(d) In respect of a Registration Statement under Section 2 or 3 hereof,
the Company shall use reasonable efforts to prevent the issuance, and, if
issued, to obtain the withdrawal, of any order suspending the effectiveness of
the Registration Statement at the earliest possible time.
(e) The Company shall furnish to the Seller, without charge, at least
one copy of the Registration Statement and any post-effective amendments and
supplements thereto, including financial statements and schedules and, if the
Seller so requests in writing, all reports, other documents and exhibits that
are filed with or incorporated by reference into the Registration Statement.
(f) The Company shall, during the period during which the Company is
required to keep a Registration Statement continuously effective under Section
2(a) hereof and during an offering pursuant to a Piggyback Registration or a
Shelf Piggyback Registration, deliver to the Seller, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in the
Registration Statement and any amendment or supplement thereto as the Seller may
reasonably request; and the Company consents (except during the continuance of
any event described in Section 2(b) or Section 4(c)(v) hereof or during a period
other than an Underwriting Period for a shelf Registration Statement or a Shelf
Piggyback Registration) to the use of the Prospectus, with any amendment or
supplement thereto, by the Seller in connection with the offering and sale of
the Applicable Securities covered by the Prospectus and any amendment or
supplement thereto during such period.
(g) Prior to any offering of the Applicable Securities pursuant to the
Registration Statement, the Company shall use reasonable efforts to (i) register
or qualify or cooperate with the Seller and its respective counsel in connection
with the registration or qualification of such Applicable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions within
the United States as the Seller may reasonably request, (ii) keep such
registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers and sales in such jurisdictions for the period
during which the Company is required to keep a Registration Statement
continuously effective under Section 2(a) hereof and (iii) take any and all
other actions reasonably requested by the Seller that are necessary or advisable
to enable the disposition in such jurisdictions of such Applicable Securities;
provided, however, that in no event shall the Company be obligated to (I)
qualify as a foreign limited partnership or
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as a dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Agreement or (II) file any general consent
to service of process or subject itself to tax in any jurisdiction where it is
not so subject.
(h) The Company shall cooperate with the Seller to facilitate the
timely preparation and delivery of certificates representing the Applicable
Securities to be sold pursuant to the Registration Statement, which certificates
shall comply with the requirements of any United States securities exchange upon
which any Applicable Securities are listed (provided that nothing herein shall
require the Company to list any Registrable Securities on any securities
exchange on which they are not currently listed), and which certificates shall
be free of any restrictive legends and in such permitted denominations and
registered in such names as the Seller may request in connection with the sale
of the Applicable Securities pursuant to the Registration Statement.
(i) The Company shall, in the event of an underwriting of the
Applicable Securities, enter into indemnification provisions and procedures
substantially identical to those set forth in Section 6 hereof with respect to
all parties to be indemnified pursuant to Section 6 hereof, provided that the
Seller does the same as to matters customarily indemnified against by selling
security holders, and the Company shall not be required to provide any other
indemnification in favor of any Indemnitee.
(j) The Company shall use reasonable efforts to:
(i) cooperate with the Seller and its advisors in their
efforts to conduct appropriate due diligence as is
customary for a company of the size and character of
the Company and make such reasonable representations
and warranties in the applicable underwriting
agreement to the Underwriters, in form, substance and
scope as are customarily made by the Company to
underwriters in secondary underwritten offerings of
equity;
(ii) in connection with any underwritten offering, obtain
opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) shall be
reasonably satisfactory to the Underwriters)
addressed to the Underwriters, covering such matters
that the Company customarily covers in opinions
requested in secondary underwritten offerings of
equity, to the extent reasonably required by the
applicable underwriting agreement;
(iii) in connection with any underwritten offering, obtain
"cold comfort" letters and updates thereof from the
independent public accountants of the Company (and,
if necessary, from the independent public accountants
of any subsidiary of the Company or of any business
acquired by the Company for which financial
statements and financial data are, or are required to
be, included in the Registration Statement),
addressed to the Seller (if the Seller has provided
such letter, representation or documentation, if any,
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required for such "cold comfort" letter to be so
addressed) and the Underwriters, in customary form
and covering matters of the type customarily covered
in "cold comfort" letters in connection with
secondary underwritten offerings of Company
securities; and
(iv) in connection with any underwritten offering, deliver
such documents and certificates as may be reasonably
requested by the Seller and the Underwriters, if any,
including certificates to evidence compliance with
any conditions contained in the underwriting
agreement or other agreements entered into by the
Company.
(k) In respect of a Registration Statement under Section 2 or 3 hereof,
the Company shall use reasonable efforts to take all other steps reasonably
necessary to effect the timely registration, offering and sale of the Applicable
Securities covered by the Registration Statement contemplated hereby.
(l) The Company shall use commercially reasonable efforts to prepare
and file with the Commission the audited financial statements required by the
Rules and Regulations to be filed as a result of the consummation of the
transactions contemplated by the Purchase Agreement within the time period
specified for such filing under Item 7(a)(4) of Form 8-K. It shall be a
condition precedent to the obligations of the Company to register the Applicable
Securities pursuant to Sections 2 and 3 hereof that the Seller shall cooperate
with the Company in its efforts to obtain the financial statements of the
business that the Company acquired from the Seller that are required in the
Registration Statement, the consents and "cold comfort" letters from the
independent public accountants, and any required "management representation
letter" relating thereto.
5. REGISTRATION EXPENSES. The Company shall bear the Registration Expenses in
connection with the performance of its obligations under Sections 2, 3 and 4
hereof. The Seller shall bear all other expenses relating to any Registration or
sale, including the fees and expenses of counsel to the Seller and any
applicable underwriting discounts or commissions.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) Upon the Registration of the Applicable Securities pursuant to
Section 2 or 3 hereof, the Company shall indemnify and hold harmless the Seller
and each Underwriter, selling agent or other securities professional, if any,
that facilitates the disposition of the Applicable Securities, and each of their
respective officers and directors and each Person who controls the Seller, such
Underwriter, selling agent or other securities professional within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
Person being sometimes referred to as an "Indemnified Person"), against any
losses, claims, damages or liabilities, joint or several, to which such
Indemnified Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of
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a material fact contained in any Registration Statement under which such
Applicable Securities are to be registered under the Securities Act, or any
Prospectus contained therein or furnished by the Company to any Indemnified
Person, or any amendment or supplement thereto, 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 not misleading,
and the Company hereby agrees to reimburse such Indemnified Person for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such Indemnified Person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person or its
agent expressly for use therein; provided further, however, that the Company
shall not be liable to the extent that any loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon (i) the use of any Prospectus after such time as the obligation of the
Company to keep the same effective and current has expired, or (ii) the use of
any Prospectus after such time as the Company has advised the Seller in writing
that a post-effective amendment or supplement thereto is required, except such
Prospectus as so amended or supplemented; and provided further, however, that
the Company shall not be liable to any Indemnified Person to the extent that any
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of such Indemnified Person's failure to send or give a copy
of the final prospectus or supplement to the Persons asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was timely corrected in such final
prospectus or supplement.
(b) The Seller agrees, as a consequence of the inclusion of any of the
Seller's Applicable Securities in such Registration Statement, and each
Underwriter, selling agent or other securities professional, if any, that
facilitates the disposition of the Applicable Securities shall agree, as a
consequence of facilitating such disposition of the Applicable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors and officers and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Company or such other Person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such Registration Statement or
Prospectus, or any amendment or supplement thereto, 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 not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Seller, such Underwriter, selling agent or other securities professional or its
agent expressly for use
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therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by any Person entitled to indemnity (an
"Indemnitee") under Section 6(a) or (b) hereof of notice of the commencement of
any action or claim, such Indemnitee shall, if a claim in respect thereof is to
be made against an indemnitor under this Section 6 (an "Indemnitor"), notify
such Indemnitor in writing of the commencement thereof; but the omission so to
notify the Indemnitor shall not relieve it from any liability that it may have
to any Indemnitee except to the extent of any actual prejudice. In case any such
action shall be brought against any Indemnitee and it shall notify an Indemnitor
of the commencement thereof, such Indemnitor shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other Indemnitor
similarly notified, to assume the defense thereof, with counsel satisfactory to
such Indemnitee, and, after notice from the Indemnitor to such Indemnitee of its
election so to assume the defense thereof, such Indemnitor shall not be liable
to such Indemnitee under this Section 6 for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such Indemnitee, in
connection with the defense thereof. No Indemnitor shall, without the written
consent of the Indemnitee, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the Indemnitee is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the Indemnitee from all liability arising out of such
action or claim and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any Indemnitee.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an Indemnitee under Section 6(a)
or (b) hereof in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each Indemnitor shall
contribute to the amount paid or payable by such Indemnitee as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnitor and
the Indemnitee in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault of such
Indemnitor and Indemnitee shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such Indemnitor or by such Indemnitee, 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 contribution pursuant to this Section 6(d) were determined
solely by pro rata allocation (even if the Seller or any Underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section 6(d). The
amount paid or payable by an Indemnitee as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above shall
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be deemed to include any legal or other fees or expenses reasonably incurred by
such Indemnitee in connection with investigating or defending any such action or
claim except to the extent any legal fees are incurred after the Indemnitor
assumes the defense of the litigation as set forth in Section 6(c) above. 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 was not guilty of such fraudulent misrepresentation. The obligations of the
Seller and any Underwriters, selling agents or other securities professionals
under this Section 6(d) to contribute shall be several in proportion to the
percentage of the principal amount of Applicable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any Indemnitee
and the obligations of any Indemnified Person under this Section 6 shall be in
addition to any liability which such Indemnified Person may otherwise have to
the Company. The remedies provided in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to an
Indemnitee at law or in equity.
7. MISCELLANEOUS.
(a) This Agreement, including this Section 7(a), may be amended, and
waivers or consents to departures from the provisions hereof may be given, only
by a written instrument duly executed, in the case of an amendment, by the
Company and the Seller, or in the case of a waiver or consent, by the party
against whom the waiver or consent, as the case may be, is to be effective.
(b) All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission) and shall be
given as follows:
if to the Company in person, by courier or telecopier, to:
AmeriGas Partners, L.P.
460 North Gulph Road
King of Prussia, PA 19406
Attn: Vice President - Law
Fax: (610) 992-3258
if to the Company by U.S. Mail, to:
AmeriGas Partners, L.P.
P.O. Box 965
Valley Forge, PA 19482
Attn.: Vice President - Law
with a copy to:
Morgan, Lewis & Bockius LLP
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1701 Market Street
Philadelphia, PA 19103-2921
Attn: Howard L. Meyers
Fax: (215) 963-5299
if to the Seller, to:
Columbia Energy Group
801 East 86th Avenue
Merrillville, Indiana 46410
Attention: Chief Financial Officer
Fax: (219) 647-6060
with a copy to:
Schiff Hardin and Waite
6600 Sears Tower
Chicago, Illinois 60606
Attention: Peter V. Fazio, Jr.
Fax: (312) 258-5600
(c) No party may assign this Agreement without the prior consent of the
other party, which consent will not be unreasonably withheld or delayed;
provided, however, that the Seller may assign this Agreement to a subsidiary or
parent or other entity owned or controlled by (or owning or controlling) that
party upon notice to the other parties; provided further, however, that any such
assignment shall not release, affect or reduce in any way the assigning party's
obligations under this Agreement. All of the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective legal successors and permitted assigns of the
parties hereto.
(d) This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(f) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY PROVISIONS
RELATING TO CONFLICTS OF LAWS.
(g) The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any Person or entity or any
circumstance, is invalid or
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unenforceable, (i) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, such
provision and (ii) the remainder of this Agreement and the application of such
provision to other Persons, entities or circumstances shall not be affected by
such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
(h) The respective indemnities, agreements, representations, warranties
and other provisions set forth in this Agreement or made pursuant hereto shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the Seller, any
director, officer or partner of the Seller, any agent or Underwriter, any
director, officer or partner of such agent or Underwriter, or any controlling
Person of any of the foregoing, and shall survive the transfer and Registration
of the Applicable Securities.
(i) The Seller shall cooperate with respect to any Registration
effected under this Agreement and shall provide such information, documents and
instruments as may be reasonably requested in connection therewith.
(j) The Seller agrees to keep confidential the fact that the Company
has exercised its rights under Section 2(b) or 3(c), any advice of the Company
pursuant to Section 4(c) and any other confidential information provided by the
Company in connection with this Agreement.
(k) The obligations of the Company hereunder shall terminate upon the
earlier of (i) three years from the date hereof (as extended under Section 2(b)
hereof) and (ii) the date upon which any Registrable Securities cease to be
outstanding; except that the indemnification and contribution obligations of the
parties under Section 6 of this Agreement shall continue until the expiration of
the applicable statute of limitations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the day and year first
above written.
COLUMBIA ENERGY GROUP
By:
-----------------------------
Name:
Title:
AMERIGAS PARTNERS, L.P.
By: AmeriGas Propane, Inc.
Its: General Partner
By:
-----------------------------
Name:
Title:
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