REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of the 19/th/ day of December, 2001, by and among INERGY, L.P., a Delaware
limited partnership (the "Company"), and the INVESTORS (as defined below).
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The Investors own common units representing limited partner interests
(the "Common Units") of the Company. The Company and the Investors deem it to be
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in their respective best interests to set forth the rights of the Investors in
connection with sales of the capital stock of the Company.
ACCORDINGLY, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and the Investors hereby agree as
follows:
SECTION 1. Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule 12b-2
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promulgated under the Exchange Act.
"Commission" shall mean the Securities and Exchange Commission or any
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other Governmental Authority at the time administering the Securities Act.
"Common Units" shall have the meaning ascribed to it in the Preamble.
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"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
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successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Governmental Authority" shall mean any domestic or foreign government
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or political subdivision thereof, whether on a federal, state or local level and
whether executive, legislative or judicial in nature, including any agency,
authority, board, bureau, commission, court, department or other instrumentality
thereof.
"Information" shall have the meaning ascribed to it in Section
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5(a)(ix).
"Inspectors" shall have the meaning ascribed to it in Section 5(a)
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(ix)
"Investors" shall mean, collectively, (i) the Persons listed on
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Schedule I attached to this Agreement and (ii) any successor to, or assignee or
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transferee of Restricted Securities held by an Investor who or which agrees in
writing to be treated as an Investor hereunder and to be bound by and comply
with all of the applicable terms and provisions hereof.
"Investors' Counsel" shall have the meaning ascribed to it in Section
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5(a)(ii).
"Majority of Investors" shall mean those Investors who hold in the
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aggregate in excess of 50% of the Registrable Units held by all of the
Investors.
"Material Transaction" shall mean any material transaction in which
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the Company or any of its subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transaction that would require
disclosure pursuant to the Exchange Act, and with respect to which the Board of
Directors of the Company reasonably has determined in good faith that compliance
with this Agreement may reasonably be expected to either materially interfere
with the Company's or such subsidiary's ability to consummate such transaction
in a timely fashion or require the Company to disclose material, nonpublic
information prior to such time as it would otherwise be required to be
disclosed.
"Other Units" shall mean at any time those Common Units which do not
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constitute Primary Units, Registrable Units or Senior Units.
"Person" shall be construed as broadly as possible and shall include
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an individual person, a partnership (including a limited liability partnership),
a corporation, an association, a joint stock company, a limited liability
company, a trust, a joint venture, an unincorporated organization and a
Governmental Authority.
"Primary Units" shall mean, at any time, the authorized but unissued
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Common Units.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Units and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Public Offering" shall mean the closing of a public offering of
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Common Units pursuant to a Registration Statement declared effective under the
Securities Act, except that a Public Offering shall not include an offering of
securities to be issued as consideration in connection with a business
acquisition or an offering of securities issuable pursuant to an employee
benefit plan.
"Records" shall have the meaning ascribed to it in Section 5(a)(ix)
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"Registrable Units" shall mean, at any time, and with respect to any
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Investor, the Common Units held by such Investor which constitute Restricted
Securities. As to any particular Registrable Units, once issued, such
Registrable Units shall cease to be Registrable Units (A) when such Registrable
Units have been registered under the Securities Act, the Registration Statement
in connection therewith has been declared effective and they have been disposed
of pursuant to and in the manner described in such effective Registration
Statement, (B) when such Registrable Units are sold or distributed pursuant to
Rule 144, (C) in the case of any Investor who, together with its Affiliates,
holds Common Units that constitute less than two percent of the issued and
outstanding Common Units of the Company, one year after the date on which such
Investor may first sell such Registrable Units under Rule 144 (provided that
such
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Investor is still able, at such time, to sell such Registrable Units under Rule
144), or (D) when such Registrable Units have ceased to be outstanding.
"Registration Date" shall mean the date upon which the registration
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statement pursuant to which the Company shall have initially registered Common
Units under the Securities Act for sale to the public shall have been declared
effective.
"Registration Statement" shall mean any registration statement of the
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Company which covers any of the Registrable Units, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Representative" of a Person shall be construed broadly and shall
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include such Person's partners, officers, directors, employees, agents, counsel,
accountants and other representatives.
"Restricted Securities" shall mean, at any time and with respect to
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any Investor, the Common Units and any other securities received with respect to
any such Common Units, which are held by such Investor and which theretofore
have not been sold to the public pursuant to a Registration Statement or
pursuant to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act or
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any successor rule thereto.
"Securities Act" shall mean the Securities Act of 1933 or any
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successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Senior Units" shall mean the Common Units issued or issuable upon the
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conversion of any of the Company's Senior Subordinated Units that are
outstanding on the date hereof.
"Suspension Period" shall have the meaning ascribed to it in Section
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9.
"Transfer" shall mean any disposition of any Restricted Securities or
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of any interest therein which would constitute a sale thereof within the meaning
of the Securities Act, other than any such disposition pursuant to a
Registration Statement and in compliance with all applicable state securities
and "blue sky" laws.
SECTION 2. Required Registration.
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(a) On or before August 1, 2002, the Company shall use its best
efforts to file a shelf registration statement under the Securities Act
registering all of the Registrable Units and thereupon shall use its best
efforts to cause such shelf registration statement promptly to be declared
effective by the Commission under the Securities Act. Such shelf registration
statement shall (i) be in such appropriate form of the Commission as shall be
selected by the Company and reasonably acceptable to the Investors and (ii)
shall contain a broad plan of distribution permitted
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by the Commission as specified by the Majority of Investors, which plan of
distribution shall include, without limitation, sales to or through underwriters
and dealers (including block trades), directly to one or more purchasers,
through agents or through a combination of any of the foregoing methods, and
each such method of sale may include sales at a fixed public offering price or
prices, at market prices prevailing at the time of sale, at varying prices
determined at the time of sale or at negotiated prices. If any such intended
method of distribution is an underwritten Public Offering, the Company may
designate the managing underwriter for such offering, subject to the approval of
the Majority of Investors (which approval shall not be unreasonably withheld).
(b) Anything contained in Section 2(a) to the contrary
notwithstanding, the Company shall not be obligated to effect pursuant to
Section 2(a) any registration under the Securities Act except in accordance with
the following provisions:
(i) the Company shall not be obligated to use its best efforts to
file and cause to become effective more than one Registration
Statement pursuant to Section 2(a). Upon effectiveness of such
Registration Statement, a Majority of Investors shall have right to
cause the Company, only once, to effect an underwritten Public
Offering pursuant to such Registration Statement (with the expenses of
such Public Offering being incurred as provided in Section 6 hereof);
provided, however, that Majority of Investors shall have right to
cause the Company to effect a second underwritten Public Offering
(with the expenses of such Public Offering being incurred as provided
in Section 6 hereof) if the Investors participating in the first such
Public Offering are unable to sell at least 60% of the Registrable
Units requested to be included in such offering as a result of an
underwriter's cutback. Such right shall be exercisable by written
notice to the Company signed by the Majority of Investors, which
notice must be delivered prior to the second anniversary of the
effective date of the Registration Statement and shall specify the
number of Registrable Units proposed to be sold in such underwritten
Public Offering. Upon receipt of such notice, the Company will notify
the remaining Investors of their right to participate in such offering
and will use reasonable efforts (i) to engage one or more underwriters
designated by the Company, subject to the approval of the Investors
holding a majority of the Registrable Units requested to be included
in such offering (which approval shall not be unreasonably withheld),
to manage such offering, (ii) to file a prospectus supplement as
required under the Securities Act and (iii) otherwise to take all
other actions as are customary in connection with such offerings. Such
offering shall be at such public offering price with underwriting
discounts and commissions as shall be agreed upon by the underwriters
and the Investors holding a majority of the Registrable Units
requested to be included in such offering.
(ii) the Company may delay effecting an underwritten Public
Offering pursuant to Section 2(b)(i) for a period of up to 90 days
after the date of a request for such Public Offering pursuant to
Section 2(a) if at the time of such request the Company is engaged, or
proposes to engage, in a Material Transaction; provided,
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that the Company may not utilize this right more than once in any
12-month period; and
(iii) with respect to any registration pursuant to Section 2(a),
the Company may include in such registration any Primary Units;
provided, however, that if the plan of distribution implemented
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within such Registration Statement is an underwritten Public Offering
and the managing underwriter advises the Company that the inclusion
of all Registrable Units, Primary Units proposed to be included in
such registration would interfere with the successful marketing of
all such securities (in terms of a significant adverse effect on the
price, timing or distribution of such securities), then the number of
Registrable Units, Primary Units proposed by the managing underwriter
to be included in such registration shall be included in the
following order:
(A) first, the Registrable Units, pro rata based upon the
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number of Registrable Units owned by each such Investor at the
time of such registration; and
(B) second, the Primary Units.
Notwithstanding the foregoing, if the Company initiates an unwritten
Public Offering, the Investors shall be entitled to the rights set
forth under Section 3.
(c) A request to effect an underwritten Public Offering in a
registration under this Section 2 may be rescinded prior to the pricing of such
offering by written notice to the Company from those Investors holding a
majority of the Registrable Units to be included in such offering; provided,
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however, that such rescinded Public Offering shall not count as an underwritten
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Public Offering initiated pursuant to Section 2(b)(i) if (i) the Company shall
have been reimbursed (pro rata by the Investors requesting such underwritten
Public Offering or in such other proportion as they may agree) for all
out-of-pocket expenses incurred by the Company in connection with such rescinded
offering, or (ii) those Investors holding a majority of the Registrable Units to
be included in such offering demonstrate that such rescission was made because
of a material adverse change in the business or financial condition of the
Company.
SECTION 3. Piggyback Registration. If the Company at any time proposes
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for any reason to register Primary Units, Senior Units or Other Units under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), it shall promptly give written
notice to each Investor of its intention so to register the Primary Units,
Senior Units or Other Units and, upon the written request, given within 20 days
after delivery of any such notice by the Company, of any such Investor to
include in such registration Registrable Units (which request shall specify the
number of Registrable Units proposed to be included in such registration), the
Company shall use its best efforts to cause all such Registrable Units to be
included in such registration on the same terms and conditions as the securities
otherwise being sold in such registration; provided, however, that if the
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managing underwriter, if any, advises the Company in writing that the inclusion
of all Registrable Units proposed to be included in such registration would
interfere with the successful marketing of
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Primary Units or Senior Units proposed to be registered by the Company (in terms
of a significant adverse effect on the price, timing or distribution of such
securities), then the number of Primary Units, Senior Units, Other Units and
Registrable Units proposed to be included in such registration shall be included
in the following order:
(i) first, the Primary Units;
(ii) second, the Senior Units; and
(iii) third, the Other Units and the Registrable Units held
by the Investors requesting that their Registrable Units be
included in such registration, pro rata based upon the number of
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Common Units owned by each such Person.
SECTION 4. Holdback Agreement.
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(a) If the Company at any time shall register Common Units under
the Securities Act in an underwritten offering pursuant to any other
registration under the Securities Act (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms thereto), and the
managing underwriter of such offering advises the Company in writing that in its
opinion the sale of Restricted Securities at the time of or following the
offering would interfere with the successful marketing of Primary Units, Senior
Units or Other Units proposed to be sold in the offering (in terms of a
significant adverse effect on the price, timing or distribution of such
securities), the Investors shall not, if requested in writing to the Company by
the managing underwriter, sell, make any short sale of, grant any option for the
purchase of, or otherwise dispose of any Restricted Securities (other than those
Registrable Units included in such registration pursuant to Section 2 or 3)
without the prior written consent of the Company for a period as shall be
determined by the managing underwriters, which period cannot begin more than 10
days prior to the effectiveness of such Registration Statement and cannot last
more than 180 days after the effective date of such Registration Statement;
provided, however, that the restrictions on transfer of Restricted Securities
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under this Section 4 shall not be imposed upon the Investors more than once
during any consecutive twelve-month period. The provisions of this Section 4
shall not apply unless (i) all executive officers and directors of the Company
owning Common Units and (ii) all Persons (other then the Investors) who have
acquired Common Units from the Company (other than through a registered Public
Offering) shall also have agreed not to sell publicly their Common Units under
the circumstances and pursuant to the terms set forth in this Section 4. The
Company agrees to obtain from the underwriter a commitment not to grant any
release, waiver or termination of the provisions set forth in any similar
agreement with any other Person or Persons unless it also grants such release,
waiver or termination to all Investors that are subject to such agreements, pro
rata based upon the number of Common Units held by the Investors and such other
Person or Persons.
(b) If the Company at any time pursuant to Section 2 or 3 of this
Agreement shall register under the Securities Act Registrable Units held by
Investors for sale to the public pursuant to an underwritten offering, the
Company shall not, without the prior written consent of a Majority of Investors,
effect any public sale or distribution of securities similar to those being
registered, or any securities convertible into or exercisable or exchangeable
for such securities, for such period as shall be determined by the managing
underwriters, which period shall not
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begin more than 10 days prior to the effectiveness of the Registration Statement
pursuant to which such Public Offering shall be made and shall not last more
than 90 days after the closing of sale of securities pursuant to such
Registration Statement (except as part of such underwritten registration or
pursuant to registrations on Forms S-4 or S-8 or any successor forms)
SECTION 5. Preparation and Filing.
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(a) If and whenever the Company is under an obligation pursuant
to the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Units, the Company shall, as expeditiously as
practicable:
(i) use its best efforts to cause a Registration Statement
that registers such Registrable Units to become and remain
effective for a period of 24 months or until the Investors no
longer hold any Registrable Units (if earlier);
(ii) furnish, at least five business days before filing a
Registration Statement that registers such Registrable Units, a
Prospectus relating thereto and any amendments or supplements
relating to such Registration Statement or Prospectus, to one
counsel selected by a Majority of Investors (the "Investors'
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Counsel") copies of all such documents proposed to be filed (it
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being understood that such five-business-day period need not
apply to successive drafts of the same document proposed to be
filed so long as such successive drafts are supplied to such
counsel in advance of the proposed filing by a period of time
that is customary and reasonable under the circumstances);
(iii) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of a period of 24
months or until the Investors no longer hold any Registrable
Units (if earlier) and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of
such Registrable Units;
(iv) notify the Investors' Counsel promptly in writing (A)
of any comments by the Commission with respect to such
Registration Statement or Prospectus, or any request by the
Commission for the amending or supplementing thereof or for
additional information with respect thereto, (B) of the issuance
by the Commission of any stop order suspending the effectiveness
of such Registration Statement or Prospectus or any amendment or
supplement thereto or the initiation of any proceedings for that
purpose and (C) of the receipt by the Company of any notification
with respect to the suspension of the qualification of such
Registrable Units for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purposes;
(v) use its best efforts to register or qualify such
Registrable Units under such other securities or blue sky laws of
such jurisdictions as any seller of Registrable Units reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller of
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Registrable Units to consummate the disposition in such
jurisdictions of the Registrable Units owned by such seller;
provided, however, that the Company will not be required to
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qualify generally to do business, subject itself to general
taxation or consent to general service of process in any
jurisdiction where it would not otherwise be required so to do
but for this clause (v);
(vi) furnish to each seller of such Registrable Units such
number of copies of a summary Prospectus or other Prospectus,
including a preliminary Prospectus, in conformity with the
requirements of the Securities Act, and such other documents as
such seller of Registrable Units may reasonably request in order
to facilitate the public sale or other disposition of such
Registrable Units;
(vii) use its best efforts to cause such Registrable Units
to be registered with or approved by such other Governmental
Authorities as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Units;
(viii) notify on a timely basis each seller of such
Registrable Units at any time when a Prospectus relating to such
Registrable Units is required to be delivered under the
Securities Act within the appropriate period mentioned in clause
(i) of this Section 5 if the Company becomes aware 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 light of the
circumstances then existing and, at the request of such seller,
prepare and furnish to such seller a reasonable number of copies
of a supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the offerees of
such securities, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(ix) make available for inspection by any seller of such
Registrable Units, any underwriter participating in any
disposition pursuant to such Registration Statement and any
attorney, accountant or other agent retained by any such seller
or underwriter (collectively, the "Inspectors"), all pertinent
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financial, business and other records, pertinent corporate
documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them to
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exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all
information (together with the Records, the "Information")
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reasonably requested by any such Inspector in connection with
such Registration Statement (and any of the Information which the
Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be
disclosed by the Inspectors unless (A) the disclosure of such
Information is necessary to avoid or correct a misstatement or
omission in the Registration Statement, (B) the release of such
Information is ordered pursuant to a subpoena or other order from
a court
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of competent jurisdiction, (C) such Information has been made
generally available to the public, and (D) the seller of
Registrable Units agrees that it will, upon learning that
disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company,
at the Company's expense, to undertake appropriate action to
prevent disclosure of the Information deemed confidential);
(x) use its best efforts to obtain from its independent
certified public accountants a "cold comfort" letter in customary
form and covering such matters of the type customarily covered by
cold comfort letters;
(xi) use its best efforts to obtain, from its counsel, an
opinion or opinions in customary form (which shall also be
addressed to the Investors selling Registrable Units in such
registration);
(xii) provide a transfer agent and registrar (which may be
the same entity and which may be the Company) for such
Registrable Units;
(xiii) issue to any underwriter to which any seller of
Registrable Units may sell securities in such offering
certificates evidencing such Registrable Units;
(xiv) use its best efforts to qualify such Registrable Units
for inclusion on the automated quotation system of the National
Association of Securities Dealers, Inc. (the "NASD"), National
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Market System ("NMS");
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(xv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its securityholders, as soon as reasonably
practicable, earnings statements which need not be audited
covering a period of 12 months beginning within three months
after the effective date of the Registration Statement, which
earnings statements shall satisfy the provisions of Section 11(a)
of the Securities Act; and
(xvi) use its best efforts to take all other steps necessary
to effect the registration of such Registrable Units contemplated
hereby.
(b) each holder of Registrable Units that sells Registrable Units
pursuant to a registration under this Agreement agrees that during such time as
such seller may be engaged in a distribution of the Registrable Units, such
seller shall comply with Regulation M promulgated under the Exchange Act and
pursuant thereto it shall, among other things: (i) not engage in any
stabilization activity in connection with the Securities of the Company in
contravention of such rules; (ii) distribute the Registrable Units under the
registration statement solely in the manner described in the registration
statement; and (iii) cease distribution of such Registrable Units pursuant to
such registration statement upon receipt of written notice from the Company that
the prospectus covering the Registrable Units contains any untrue statement of a
material fact or omits a material fact required to be stated therein or
necessary to make the statements therein not misleading.
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SECTION 6. Expenses. All reasonable expenses incurred by the
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Company in complying with Section 5, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
NASD), fees and expenses of complying with securities and blue sky laws,
printing expenses, fees and expenses of the Company's counsel and accountants
and fees and expenses of the Investors' Counsel, shall be paid by the Company;
provided, however, that all underwriting discounts and selling commissions
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applicable to the Registrable Units shall not be borne by the Company but shall
be borne by the seller or sellers thereof, in proportion to the number of
Registrable Units sold by such seller or sellers.
SECTION 7. Indemnification.
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(a) In connection with any registration of any Registrable Units
under the Securities Act pursuant to this Agreement, the Company shall indemnify
and hold harmless the seller of such Registrable Units, each underwriter, broker
or any other Person acting on behalf of such seller, each other Person, if any,
who controls any of the foregoing Persons within the meaning of the Securities
Act and each Representative of any of the foregoing Persons, against any losses,
claims, damages or liabilities, joint or several, to which any of the foregoing
Persons 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 any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement under which such
Registrable Units were registered, any preliminary Prospectus or final
Prospectus contained therein, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Units, or
arise out of or are based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading or, with respect to any Prospectus, necessary
to make the statements therein in light of the circumstances under which they
were made not misleading, or any violation by the Company of the Securities Act
or state securities or blue sky laws applicable to the Company and relating to
action or inaction required of the Company in connection with such registration
or qualification under such state securities or blue sky laws, and the Company
shall promptly reimburse such seller, such underwriter, such broker, such
controlling Person or such Representatives for any reasonable legal or other
expenses incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
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Company shall not be liable to any such Person 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 said
Registration Statement, preliminary Prospectus, amendment, supplement or
document incident to registration or qualification of any Registrable Units in
reliance upon and in conformity with written information furnished to the
Company by such Person, or a Person duly acting on their behalf, specifically
for use in the preparation thereof; provided further, however, that the
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foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any untrue statement, allegedly untrue statement, omission or alleged
omission made in any preliminary Prospectus but eliminated or remedied in the
final Prospectus (filed pursuant to Rule 424 of the Securities Act), such
indemnity agreement shall not inure to the benefit of any indemnified party from
whom the Person asserting any loss, claim, damage, liability or expense
purchased the Registrable Units which are the subject thereof, if a copy of such
final Prospectus had been timely made available to such Indemnified Person and
such final Prospectus was not delivered to
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such Person with or prior to the written confirmation of the sale of such
Registrable Units to such Person.
(b) In connection with any registration of Registrable Units under the
Securities Act pursuant to this Agreement, each seller of Registrable Units
shall severally and not jointly indemnify and hold harmless (in the same manner
and to the same extent as set forth in the paragraph (a) of this Section 7) the
Company, each underwriter or broker involved in such offering, each other seller
of Registrable Units under such Registration Statement, each Person who controls
any of the foregoing Persons within the meaning of the Securities Act and any
Representative of the foregoing Persons with respect to any statement or
omission from such Registration Statement, any preliminary Prospectus or final
Prospectus contained therein, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Units, if
such statement or omission was made in reliance upon and in conformity with
written information relating to such seller furnished to the Company or such
underwriter by such seller or a Person duly acting on their behalf specifically
for use in connection with the preparation of such Registration Statement,
preliminary Prospectus, final Prospectus, amendment or supplement; provided,
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however, that the maximum amount of liability in respect of such indemnification
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shall be limited, in the case of each seller of Registrable Units, to an amount
equal to the proceeds actually received by such seller from the sale of
Registrable Units effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 7, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action (provided however, that an indemnified
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party's failure to give such notice in a timely manner shall only relieve the
indemnification obligations of an indemnifying party to the extent such
indemnifying party is prejudiced by such failure). In case any such action is
brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, 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
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that if any indemnified
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party shall have reasonably concluded, based upon advice of its counsel, that
there may be one or more legal or equitable defenses available to such
indemnified party which are in addition to or conflict with those available to
the indemnifying party, or that such claim or litigation involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided in
this Section 7, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any Person controlling such
indemnified party for that portion of the fees and expenses of any one lead
counsel (plus appropriate special and local counsel) retained by the indemnified
-----
party which are reasonably related to the matters covered by the indemnity
agreement provided in this Section 7.
(d) If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim,
11
damage or liability referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amounts
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and of the indemnified party on
the other hand in connection with the statements or omissions which resulted in
such loss, claim, damage or liability as well as any other relevant equitable
considerations; provided, however, that the maximum amount of liability in
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respect of such contribution shall be limited, in the case of each seller of
Registrable Units, to an amount equal to the proceeds actually received by such
seller from the sale of Registrable Units effected pursuant to such
registration. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or 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.
(e) The indemnification and contribution provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party and will survive the Transfer of securities.
SECTION 8. Underwriting Agreement.
----------------------
(a) Notwithstanding the provisions of Sections 4 and 7, to the extent that
the Investors selling Registrable Units in a proposed registration shall enter
into an underwriting or similar agreement, which agreement contains provisions
covering one or more issues addressed in such Sections of this Agreement, the
provisions contained in such Sections of this Agreement addressing such issue or
issues shall be of no force or effect with respect to such registration, but
this provision shall not apply to the Company if the Company is not a party to
the underwriting or similar agreement.
(b) If any registration pursuant to Section 2 is requested to be an
underwritten offering, the Company shall negotiate in good faith to enter into a
reasonable and customary underwriting agreement with the underwriters thereof.
The Company shall be entitled to receive indemnities from lead institutions,
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement and to
the extent customary given their role in such distribution.
(c) No Investor may participate in any registration hereunder that is
underwritten unless such Investor agrees to (i) sell such Investor's Registrable
Units proposed to be included therein on the basis provided in any underwriting
arrangements acceptable to the Company and the Majority of Investors and (ii) as
expeditiously as possible, notify the Company of the occurrence of any event
concerning such Investor as a result of which the Prospectus relating to such
registration contains 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, in light of the circumstances under which they were made, not
misleading.
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SECTION 9. Suspension. Anything contained in this Agreement to the
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contrary notwithstanding, the Company may (not more than once in any period of
12 consecutive months), by notice in writing to each holder of Registrable Units
to which a Prospectus relates, require such holder to suspend, for up to 90 days
(the "Suspension Period"), the use of any Prospectus included in a Registration
-----------------
Statement filed under Section 2 or 3 if a Material Transaction exists that would
require an amendment to such Registration Statement or supplement to such
Prospectus (including any such amendment or supplement made through
incorporation by reference to a report filed under Section 13 of the Exchange
Act). The period during which such Registration Statement must remain effective
shall be extended by a period equal to the Suspension Period. The Company may
(but shall not be obligated to) withdraw the effectiveness of any Registration
Statement subject to this provision.
SECTION 10. Information by Holder. Each holder of Registrable Units to be
---------------------
included in any registration shall furnish to the Company and the managing
underwriter such written information regarding such holder and the distribution
proposed by such holder as the Company or the managing underwriter may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this
Agreement.
SECTION 11. Exchange Act Compliance. The Company shall comply with all of
-----------------------
the reporting requirements of the Exchange Act (whether or not it shall be
required to do so) and shall comply with all other public information reporting
requirements of the Commission which are conditions to the availability of Rule
144 for the sale of the Common Units. The Company shall cooperate with each
Investor in supplying such information as may be necessary for such Investor to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of Rule 144.
SECTION 12. No Conflict of Rights. The Company represents and warrants to
---------------------
the Investors that the registration rights granted to the Investors hereby do
not conflict with any other registration rights granted by the Company. The
Company shall not, after the date hereof, grant any registration rights which
conflict with or impair, or have any priority over, the registration rights
granted hereby. In any underwritten Public Offering, the managing underwriter
shall be a nationally recognized investment banking firm selected by the
Company, and reasonably acceptable to a Majority of Investors if the Investors
would have the right (prior to giving effect to any cutbacks) to include
Registrable Units in such Public Offering.
SECTION 13. Termination. This Agreement shall terminate and be of no
-----------
further force or effect when there shall not be any Registrable Units; provided
--------
however, that Sections 6 and 7 shall survive the termination of this Agreement.
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SECTION 14. Successors and Assigns. This Agreement shall bind and inure to
----------------------
the benefit of the Company and the Investors and, subject to Section 15, their
respective successors and assigns.
SECTION 15. Assignment. Each Investor may assign its rights hereunder to
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any purchaser from such Investor of Restricted Securities; provided, however,
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that such purchaser shall, as a condition to the effectiveness of such
assignment, be required to execute a
13
counterpart to this Agreement agreeing to be treated as an Investor hereunder,
whereupon such purchaser shall have the benefits of, and shall be subject to the
restrictions contained in, this Agreement as an Investor.
SECTION 16. Entire Agreement. This Agreement contains the entire agreement
----------------
among the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings with respect hereto, all of which are hereby
terminated in their entirety and of no further force or effect.
SECTION 17. Notices. All notices, requests, consents and other
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communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument and shall be deemed to have been duly given
when delivered in person, by telecopy, by overnight courier, or by first class
registered or certified mail, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by the addressee to the sender:
(i) if to the Company, to:
Inergy, L.P.
1101 Walnut Street, Suite 1500
Kansas City, MO 64106
Telephone: 816.842.8181
FAX: 816.842.1904
Attention: John J. Sherman
(ii) if to any Investor, to him, her or it at the address set forth on
Schedule I or, if none, in the books of the Company.
----------
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or telecopy, on the
date of such delivery, (b) in the, case of overnight courier, on the next
business day, and (c) in the case of mailing, on the fifth business day
following such mailing.
SECTION 18. Modifications; Amendments; Waivers. The terms and provisions of
----------------------------------
this Agreement may not be modified or amended, nor may any provision applicable
to the Investors be waived, except pursuant to a writing signed by (i) the
Company, and (ii) a Majority of Investors; provided, however, that (A) any such
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amendment, modification, or waiver that would adversely affect the rights
hereunder of any Investor, in its capacity as an Investor, without similarly
affecting the rights hereunder of all Investors of such class, in their
capacities as Investors of such class, shall not be effective as to such
Investor without its prior written consent, and (B) Schedule I to this Agreement
----------
shall be deemed to be automatically amended from time to time to reflect the
addition to this Agreement of any Person identified in clause (ii) of the
definition of Investor.
SECTION 19. Headings. The headings of the various sections of this
--------
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
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SECTION 20. Severability. It is the desire and intent of the parties
------------
that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any provision of this Agreement
would be held in any jurisdiction to be invalid, prohibited or unenforceable for
any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 21. Governing Law; Etc. All questions concerning the
------------------
construction, interpretation and validity of this Agreement shall be governed by
and construed and enforced in accordance with the domestic laws of the State of
Delaware, without giving effect to any choice or conflict of law provision or
rule (whether in the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware. In furtherance of the foregoing, the internal law of the State of
Delaware will control the interpretation and construction of this Agreement,
even if under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
SECTION 22. Counterparts; Validity. This Agreement may be executed in
----------------------
any number of counterparts, each of which shall be an original, but all of which
taken together shall constitute one and the same agreement, and telecopied
signatures shall be effective. The failure of any Person holding Registrable
Units to execute this Agreement shall not render this Agreement invalid as
between the Company and any other Person holding Registrable Units.
[The remainder of this page intentionally has been left blank]
15
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the date first written above.
INERGY, L.P.
By: /s/ John J. Sherman
-----------------------------------
Name: John J. Sherman
Title: President
J.P. MORGAN PARTNERS (SBIC) LLC
By /s/ Christopher Behrens
-----------------------------------
SUMMIT CAPITAL, INC.
By /s/ George B. Kelly
-----------------------------------
HELLER FINANCIAL, INC.
By /s/ Steven Lane
-----------------------------------
TRIAD VENTURES LIMITED, L.P.
By /s/ Mary Ban
-----------------------------------
16
SCHEDULE I
Investors
---------
J.P. Morgan Partners (SBIC), LLC
1221 Avenue of the Americas
New York, NY 10020
Attn: Official Notices Clerk (fbo Mathew Lori)
Telephone: 212.899.3400
Fax: 212.899.3401
With copy to:
O'Sullivan, LLP
30 Rockefeller Plaza
New York, NY 10112
Attn: Michael J. O'Brien, Esq.
Telephone: 212.408.2400
Fax: 212.408.2420
Summit Capital, Inc.
Heller Financial, Inc.
Triad Ventures Limited, L.P.
17