COMMON UNIT
REGISTRATION RIGHTS AGREEMENT
PLAINS ALL AMERICAN PIPELINE,
L.P.
REGISTRATION RIGHTS
AGREEMENT
THIS REGISTRATION
RIGHTS AGREEMENT (this “ Agreement ”) is made
and entered into as of September 3, 2009, by and between
PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership
(the “ Partnership ”) and Vulcan Gas Storage
LLC, a Delaware limited liability company (“ Gas
Storage ”).
WHEREAS, the
Partnership and Gas Storage are parties to that certain Membership
Interest Purchase Agreement, dated August 27, 2009 (the
“ Purchase Agreement ”), pursuant to which
Plains Marketing, L.P., a Texas limited partnership and subsidiary
of the Partnership, will purchase from Gas Storage, all of Gas
Storage’s Membership Interests in PAA/Vulcan Gas Storage,
LLC, a Delaware limited liability company (the “
Company ”), as further described therein;
WHEREAS, pursuant
to the Purchase Agreement, a portion of the purchase price to be
paid to Gas Storage for all of Gas Storage’s Membership
Interests in the Company shall be the Closing Common Units;
and
WHEREAS, the
Partnership has agreed to provide the registration and other rights
set forth in this Agreement for the benefit of Gas
Storage.
NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each party hereto,
the parties hereby agree as follows:
Section 1.01
Definitions . Capitalized terms used herein without
definition shall have the meanings given to them in the Purchase
Agreement. The terms set forth below are used herein as so
defined:
“
Agreement ” has the meaning specified therefor in the
Recitals of this Agreement.
“ Closing
Common Units ” has the meaning specified therefor in the
Purchase Agreement.
“
Commission ” means the United States Securities and
Exchange Commission.
“ Common
Units ” means the common units of the
Partnership.
“
Company ” has the meaning specified therefor in the
Recitals of this Agreement.
“
Effectiveness Period ” has the meaning specified
therefore in Section 2.01(a) of this Agreement.
“
Exchange Act ” means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
“
Holder ” means the record holder of any Registrable
Securities.
“ Gas
Storage ” has the meaning specified therefor in the
Recitals of this Agreement.
“
Losses ” has the meaning specified therefor in
Section 2.06(a) of this Agreement.
“
Managing Underwriter ” means, with respect to any
Underwritten Offering, the book running lead manager of such
Underwritten Offering.
“
Partnership ” has the meaning specified therefor in
the Recitals of this Agreement.
“
Person ” means any individual, corporation, company,
voluntary association, partnership, joint venture, trust, limited
liability company, unincorporated organization, government or any
agency, instrumentality or political subdivision thereof, or any
other form of entity.
“
Purchase Agreement ” has the meaning specified
therefor in the Recitals of this Agreement.
“
Registrable Securities ” means the Closing Common
Units until such time as such securities cease to be Registrable
Securities pursuant to Section 1.02 hereof.
“
Registration Expenses ” has the meaning specified
therefor in Section 2.05(a) of this Agreement.
“
Securities Act ” means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
“ Selling
Expenses ” has the meaning specified therefor in
Section 2.05(a) of this Agreement.
“ Selling
Holder ” means a Holder who is selling Registrable
Securities pursuant to a registration statement.
“ Shelf
Registration ” has the meaning specified therefor in
Section 2.01(a) of this Agreement.
“ Shelf
Registration Statement ” has the meaning specified
therefor in Section 2.01(a) of this Agreement.
“
Underwritten Offering ” means an offering (including
an offering pursuant to a Shelf Registration Statement) in which
Common Units are sold to an underwriter on a firm commitment basis
for reoffering to the public or an offering that is a “bought
deal” with one or more investment banks.
Section 1.02
Registrable Securities . Any Registrable Security will cease
to be a Registrable Security when (a) a registration statement
covering such Registrable Security has been declared effective by
the Commission and such Registrable Security has been sold or
disposed of pursuant to such effective registration statement;
(b) such Registrable Security has
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been disposed
of pursuant to any section of Rule 144 (or any similar
provision then in force under the Securities Act); (c) such
Registrable Security is held by the Partnership or one of its
subsidiaries; or (d) such Registrable Security becomes
saleable under Rule 144 of the Securities Act without regard
to any volume limitation requirement under Rule 144 of the
Securities Act.
ARTICLE II
.
REGISTRATION RIGHTS
Section 2.01
Shelf Registration .
(a)
Shelf Registration . As soon as practicable following the
Closing of the purchase of the Common Units pursuant to the terms
of the Purchase Agreement, but in any event within 120 days of the
Closing, the Partnership shall prepare and file a registration
statement under the Securities Act to permit the public resale of
the Registrable Securities from time to time as permitted by
Rule 415 of the Securities Act (the “ Shelf
Registration Statement ”). The Partnership shall use its
commercially reasonable efforts to cause the Shelf Registration
Statement to become effective no later than 240 days after the
date of the Closing (the “ Shelf Registration
”). The Shelf Registration Statement filed pursuant to this
Section 2.01(a) shall be on such appropriate registration form
of the Commission as shall be selected by the Partnership;
provided , however , that if a prospectus supplement
will be used in connection with the marketing of an Underwritten
Offering from the Shelf Registration Statement and the Managing
Underwriter at any time shall notify the Partnership in writing
that, in the sole judgment of such Managing Underwriter, inclusion
of detailed information to be used in such prospectus supplement is
of material importance to the success of the Underwritten Offering
of such Registrable Securities, the Partnership shall use its
commercially reasonable efforts to include such information in the
prospectus. The Partnership will cause the Shelf Registration
Statement filed pursuant to this Section 2.01(a) to be
continuously effective under the Securities Act until all
Registrable Securities covered by the Shelf Registration Statement
have been distributed in the manner set forth and as contemplated
in the Shelf Registration Statement or there are no longer any
Registrable Securities outstanding (the “ Effectiveness
Period ”). The Shelf Registration Statement when declared
effective (including the documents incorporated therein by
reference) will comply as to form with all applicable requirements
of the Securities Act and the Exchange Act and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(b)
Delay Rights . Notwithstanding anything to the contrary
contained herein, the Partnership may, upon written notice to any
Selling Holder whose Registrable Securities are included in the
Shelf Registration Statement, suspend such Selling Holder’s
use of any prospectus which is a part of the Shelf Registration
Statement (in which event the Selling Holder shall discontinue
sales of the Registrable Securities pursuant to the Shelf
Registration Statement) if (i) the Partnership is pursuing an
acquisition, merger, reorganization, disposition or other similar
transaction and the Partnership determines in good faith that the
Partnership’s ability to pursue or consummate such a
transaction would be materially adversely affected by any required
disclosure of such transaction in the Shelf Registration Statement
or (ii) the Partnership has experienced some other material
non-public event the disclosure of which would, in the good faith
judgment of the Partnership, be materially detrimental to the
Partnership or its business
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prospects. Upon
disclosure of such information or the termination of the condition
described above, the Partnership shall provide prompt notice to the
Selling Holders whose Registrable Securities are included in the
Shelf Registration Statement, and shall promptly terminate any
suspension of sales it has put into effect and shall take such
other actions to permit registered sales of Registrable Securities
as contemplated in this Agreement.
Section 2.02
Underwritten Offering .
(a)
Shelf Registration . In the event that a Selling Holder
elects to dispose of Registrable Securities under the Shelf
Registration Statement pursuant to an Underwritten Offering, the
Partnership shall enter into an underwriting agreement in customary
form with the Managing Underwriter or Underwriters, which shall
include, among other provisions, indemnities to the effect and to
the extent provided in Section 2.06, and shall take all such
other reasonable actions as are requested by the Managing
Underwriter in order to expedite or facilitate the registration and
disposition of the Registrable Securities; provided ,
however , the participation of the Partnership’s
management in connection with an Underwritten Offering for the
benefit of Selling Holders shall consist of not more than sixteen
hours of teleconferences for the benefit of Gas Storage annually;
and provided further, that these marketing obligations are not
transferable to any other Holders other than Affiliates of Gas
Storage, notwithstanding the provisions of Section 2.08
hereof.
(b)
General Procedures . In connection with any Underwritten
Offering under this Agreement, the Partnership shall be entitled to
select the Managing Underwriter or Underwriters. In connection with
an Underwritten Offering under Section 2.01 hereof, each
Selling Holder and the Partnership shall be obligated to enter into
an underwriting agreement which contains such representations,
covenants, indemnities and other rights and obligations as are
customary in underwriting agreements for firm commitment offerings
of securities. No Selling Holder may participate in such
Underwritten Offering unless such Selling Holder agrees to sell its
Registrable Securities on the basis provided in such underwriting
agreement and completes and executes all questionnaires, powers of
attorney, indemnities and other documents reasonably required under
the terms of such underwriting agreement. Each Selling Holder may,
at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the
Partnership to and for the benefit of such underwriters also be
made to and for such Selling Holder’s benefit and that any or
all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement also be conditions
precedent to its obligations. No Selling Holder shall be required
to make any representations or warranties to or agreements with the
Partnership or the underwriters other than representations,
warranties or agreements regarding such Selling Holder and its
ownership of the securities being registered on its behalf and its
intended method of distribution and any other representation
required by law. If any Selling Holder disapproves of the terms of
an underwriting, such Selling Holder may elect to withdraw
therefrom by notice to the Partnership and the Managing
Underwriter; provided , however , that such
withdrawal must be made during the time period up to and including
the time of pricing of such offering to be effective. No such
withdrawal or abandonment shall affect the Partnership’s
obligation to pay Registration Expenses.
Section 2.03
Registration Procedures . In connection with its obligations
contained in Section 2.01, the Partnership will, as
expeditiously as possible:
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(a) prepare
and file with the Commission such amendments and supplements to the
Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Shelf Registration
Statement effective for the Effectiveness Period and as may be
necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the Shelf
Registration Statement;
(b) furnish
to each Selling Holder (i) as far in advance as reasonably
practicable before filing the Shelf Registration Statement or any
supplement or amendment thereto, upon request, copies of reasonably
complete drafts of all such documents proposed to be filed
(including exhibits and each document incorporated by reference
therein to the extent then required by the rules and regulations of
the Commission), and provide each such Selling Holder the
opportunity to object to any information pertaining to such Selling
Holder and its plan of distribution that is contained therein and
make the corrections reasonably requested by such Selling Holder
with respect to such information prior to filing the Shelf
Registration Statement or supplement or amendment thereto, and
(ii) such number of copies of the Shelf Registration Statement
and the prospectus included therein and any supplements and
amendments thereto as such Persons may reasonably request in order
to facilitate the public sale or other disposition of the
Registrable Securities covered by such Shelf Registration Statement
or other registration statement;
(c) if
applicable, use its commercially reasonable efforts to register or
qualify the Registrable Securities covered by the Shelf
Registration Statement under the securities or blue sky laws of
such jurisdictions as the Selling Holders or, in the case of an
Underwritten Offering, the Managing Underwriter, shall reasonably
request, provided that the Partnership will not be required to
qualify generally to transact business in any jurisdiction where it
is not then required to so qualify or to take any action which
would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(d) promptly
notify each Selling Holder and each underwriter, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of (i) the filing of the Shelf Registration
Statement or any prospectus or prospectus supplement to be used in
connection therewith, or any amendment or supplement thereto, and,
with respect to such Shelf Registration Statement, when the same
has become effective; and (ii) any written comments from the
Commission with respect to any filing referred to in clause
(i) and any written request by the Commission for amendments
or supplements to the Shelf Registration Statement or any
prospectus or prospectus supplement thereto;
(e) immediately
notify each Selling Holder and each underwriter, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of (i) the happening of any event as a result
of which the prospectus or prospectus supplement contained in the
Shelf Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing; (ii) the issuance or threat of issuance by the
Commission of any stop order suspending the effectiveness of the
Shelf Registration Statement, or the initiation of any proceedings
for that
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