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Exhibit 1.1
Execution Version
MARKWEST ENERGY PARTNERS, L.P.
5,000,000 Common Units
Representing Limited Partner Interests
UNDERWRITING
AGREEMENT
April 8, 2008
LEHMAN
BROTHERS INC.
MORGAN STANLEY & CO.
INCORPORATED
As Representatives of the several
Underwriters named in Schedule 1 attached
hereto,
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and
Gentlemen:
MarkWest Energy
Partners, L.P., a Delaware limited partnership (the "
Partnership "),
proposes to sell to the underwriters named in Schedule 1 (the "
Underwriters ")
attached to this underwriting agreement (this " Agreement ") 5,000,000 common
units (the " Firm Units
") representing limited partner interests in the
Partnership (" Common Units
"). In addition, the Partnership proposes to grant
to the Underwriters an option to purchase up to 750,000 additional
Common Units on the terms set forth in Section 2 (the "
Option Units "). The
Firm Units and the Option Units, if purchased, are hereinafter
collectively called the " Units
." This is to confirm the agreement concerning the
purchase of the Units from the Partnership by the
Underwriters.
The Partnership
owns all of the outstanding capital stock of MarkWest
Hydrocarbon, Inc., a Delaware corporation ("
MarkWest Hydrocarbon "), and a 1% limited liability company interest in MarkWest
Energy GP, L.L.C., a Delaware limited liability company
(" MarkWest Energy GP
"). MarkWest Hydrocarbon owns a 99% limited
liability company interest in MarkWest Energy GP and a 100%
limited liability company interest in Mason Pipeline Limited
Liability Company, a Michigan limited liability company ("
Mason LLC "). The
Partnership conducts its business through MarkWest Energy Operating
Company, L.L.C., a Delaware limited liability company (the "
Operating Company "
and, together with the Partnership, the " MarkWest Parties "), MarkWest
Hydrocarbon and Mason LLC. The Operating Company conducts its
business through the Operating Subs (as hereinafter defined). Basin
Pipeline L.L.C., a Michigan limited liability company ("
Basin LLC "),
Bright Star Partnership, a Texas general partnership ("
Bright Star "),
Centrahoma Processing LLC, a Delaware limited liability
company (" Centrahoma LLC
"), MarkWest Blackhawk, L.L.C., a Texas limited
liability company (" Blackhawk LLC "), MarkWest
Energy Appalachia, L.L.C., a Delaware limited liability company
(" Appalachia LLC
"), MarkWest Energy East Texas Gas Company, L.L.C.,
a Delaware limited liability company (" East Texas LLC "), MarkWest
Gas Services, L.L.C., a Texas limited liability company ("
Gas Services LLC "), MarkWest Javelina Company, L.L.C., a Texas limited
liability company (" Javelina
Company LLC "), MarkWest Javelina
Pipeline Company, L.L.C., a Texas limited liability company
(" Javelina Pipeline LLC
"), MarkWest Liberty Gas Gathering, L.L.C., a
Delaware limited liability company (" Liberty LLC "), MarkWest
Michigan Pipeline Company, L.L.C., a Michigan limited liability
company (" Michigan
Pipeline LLC "), MarkWest New
Mexico, L.L.C., a Texas limited liability company ("
New Mexico LLC "),
MarkWest Pinnacle, L.L.C., a Texas limited liability company
(" Pinnacle LLC
"), MarkWest Pioneer, L.L.C., a Delaware limited
liability company (" Pioneer LLC "), MarkWest
Pipeline Company, L.L.C., a Texas limited liability company
(" Pipeline Company LLC
"), MarkWest PNG Utility, L.L.C., a Texas limited
liability company (" PNG
Utility LLC "), MarkWest Power Tex,
L.L.C., a Texas limited liability company (" Power Tex LLC "), MarkWest
Texas PNG Utility, L.L.C., a Texas
limited liability
company (" Texas PNG LLC
"), MarkWest Oklahoma Gas Company, L.L.C., an
Oklahoma limited liability company (" Oklahoma LLC "), Matrex,
L.L.C., a Michigan limited liability company (" Matrex LLC "), Starfish
Pipeline Company, L.L.C., a Delaware limited liability company
(" Starfish LLC
"), and West Shore Processing Company, L.L.C., a
Michigan limited liability company (" West
Shore LLC "), are collectively
referred to as the " Operating
Subs ." The Partnership, MarkWest
Hydrocarbon, Mason LLC, MarkWest Energy GP, the Operating
Company and the Operating Subs are collectively referred to as the
" MarkWest Entities ."
1.
Representations,
Warranties and Agreements of the MarkWest Parties.
The MarkWest Parties jointly
and severally represent, warrant and agree that:
-
(a) A
registration statement on Form S-3 relating to the Units
(i) has been prepared by the Partnership in conformity with
the requirements of the Securities Act of 1933, as amended (the
" Securities Act "), and the rules and regulations (the " Rules and Regulations ") of the
Securities and Exchange Commission (the " Commission ") thereunder;
(ii) has been filed with the Commission under the Securities
Act; and (iii) is effective under the Securities Act. Copies
of such registration statement and any amendment thereto have been
delivered by the Partnership to you as the representatives of the
Underwriters (the " Representatives "). As used in
this Agreement:
-
(i) "
Applicable Time " means
7:00 a.m., New York City time, on April 9, 2008, which
the Underwriters have informed the Partnership and its counsel is a
time prior to the first sale of the Units;
(ii) "
Effective Date " means
any date as of which any part of such registration statement
relating to the Units became, or is deemed to have become,
effective under the Securities Act in accordance with the Rules and
Regulations;
(iii) "
Issuer Free Writing Prospectus
" means each "free writing prospectus" (as defined
in Rule 405 of the Rules and Regulations) prepared by or on
behalf of the Partnership or used or referred to by the Partnership
in connection with the offering of the Units;
(iv) "
Preliminary Prospectus " means any preliminary prospectus relating to the Units
included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any preliminary prospectus supplement
thereto relating to the Units;
(v) "
Pricing Disclosure Package " means, as of the Applicable Time, the most recent Preliminary
Prospectus, together with each Issuer Free Writing Prospectus filed
or used by the Partnership on or before the Applicable Time, as set
forth on Schedule 2
, other than a road show that is an Issuer Free
Writing Prospectus under Rule 433 of the Rules and
Regulations;
(vi) "
Prospectus " means the
final prospectus relating to the Units, including any prospectus
supplement thereto relating to the Units, as filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations; and
(vii) "
Registration Statement " means the registration statement on Form S-3 (File
No. 333-138744), as amended as of the Effective Date,
including any Preliminary Prospectus or the Prospectus and all
exhibits to such registration statement.
Any reference to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein
pursuant to Form S-3 under the Securities Act as of the date
of such Preliminary Prospectus or the Prospectus, as the case may
be. Any reference to the " most recent
Preliminary Prospectus " shall be deemed
to refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) of the
Rules and Regulations prior to or on the date hereof (including,
for purposes hereof, any documents incorporated by reference
therein prior to or on the date hereof). Any reference to
any
2
-
amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "
Exchange Act "), after
the date of such Preliminary Prospectus or the Prospectus, as the
case may be, and incorporated by reference in such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference
to any amendment to the Registration Statement shall be deemed to
include any annual report of the Partnership on Form 10-K
filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Date that is incorporated
by reference in the Registration Statement. The Commission has not
issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding or
examination for such purpose has been instituted or threatened by
the Commission. The Commission has not notified the Partnership of
any objection to the use of the form of the Registration
Statement.
(b) The
Partnership has been since the time of initial filing of the
Registration Statement and continues to be a "well-known seasoned
issuer" (as defined in Rule 405 of the Rules and Regulations)
eligible to use Form S-3 for the offering of the Units and is
not on the date hereof or on the applicable Delivery Date an
"ineligible issuer" (as defined in Rule 405 of the Rules and
Regulations) with respect to the offering of the Units. The
Registration Statement is an "automatic shelf registration
statement" (as defined in Rule 405 of the Rules and
Regulations) and was filed not earlier than the date that is three
years prior to the applicable Delivery Date (as defined in
Section 4).
(c) The
Registration Statement conformed and will conform in all material
respects on the Effective Date and on the applicable Delivery Date,
and any amendment to the Registration Statement filed after the
date hereof will conform in all material respects when filed, to
the requirements of the Securities Act and the Rules and
Regulations. The most recent Preliminary Prospectus conformed, and
the Prospectus will conform, in all material respects when filed
with the Commission pursuant to Rule 424(b) and on the
applicable Delivery Date to the requirements of the Securities Act
and the Rules and Regulations. The documents incorporated by
reference in any Preliminary Prospectus or the Prospectus
conformed, and any further documents so incorporated will conform,
when filed with the Commission, in all material respects to the
requirements of the Exchange Act or the Securities Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Registration Statement did not, as of the Effective Date, 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; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e).
(e) The
Prospectus will not, as of its date and on the applicable Delivery
Date, 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, in the light of the circumstances
under which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Prospectus in reliance upon and in conformity with written
information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e).
(f) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit
to state a material
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fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time,
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided
that no representation or warranty is made as to
information contained in or omitted from the Pricing Disclosure
Package in reliance upon and in conformity with written information
furnished to the Partnership through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433 of
the Rules and Regulations), when considered together with the
Pricing Disclosure Package as of the Applicable Time, did 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, in the light of the circumstances under
which they were made, not misleading.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Partnership
has complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The
Partnership has not made any offer relating to the Units that would
constitute an Issuer Free Writing Prospectus without the prior
written consent of the Representatives. The Partnership has
retained in accordance with the Rules and Regulations all Issuer
Free Writing Prospectuses that were not required to be filed
pursuant to the Rules and Regulations. The Partnership filed the
Registration Statement before using any Issuer Free Writing
Prospectus and each Issuer Free Writing Prospectus was accompanied
by the most recent Preliminary Prospectus satisfying the
requirements of Section 10 of the Securities Act. The
Partnership has taken all actions necessary so that any road show
(as defined in Rule 433 of the Rules and Regulations) in
connection with the offering of the Units will not be required to
be filed pursuant to the Rules and Regulations.
(j) The
Partnership has been duly formed and is validly existing in good
standing as a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (" Delaware LP Act ") with full
partnership power and authority to own or lease its properties and
to conduct its business in all material respects as described in
the Pricing Disclosure Package and the Prospectus. The Partnership
is duly registered or qualified as a foreign limited partnership
for the transaction of business under the laws of each jurisdiction
in which the character of the business conducted by it or the
nature or location of the properties owned or leased by it makes
such registration or qualification necessary, except where the
failure so to register or qualify would not, individually or in the
aggregate, (i) have a material adverse effect on the business,
prospects, financial condition or results of operations of the
MarkWest Entities, taken as a whole (" Material Adverse Effect "), or
(ii) subject the limited partners of the Partnership to any
material liability or disability.
(k) MarkWest
Hydrocarbon has been duly formed and is validly existing in good
standing as a corporation under the Delaware General Corporation
Law (the " DGCL "), with full corporate power and authority to own or lease its
properties and to conduct its business, in each case in all
material respects as described in the Pricing Disclosure Package
and the Prospectus. MarkWest Hydrocarbon is duly registered or
qualified as a foreign corporation for the transaction of business
under the laws of each jurisdiction in which the character of the
business conducted by it or the nature or location of the
properties owned or leased by it makes such registration or
qualification necessary, except where the failure so to register or
qualify would not, individually or in the
4
aggregate,
(i) have a Material Adverse Effect or (ii) subject the
limited partners of the Partnership to any material liability or
disability.
(l) Each
of MarkWest Energy GP, the Operating Company,
Liberty LLC, Centrahoma LLC, Appalachia LLC, East
Texas LLC, Pioneer LLC and Starfish LLC has been
duly formed and is validly existing in good standing as a limited
liability company under the Delaware Limited Liability Company Act
(the " Delaware LLC Act
"), each of Blackhawk LLC, Gas
Services LLC, Javelina Company LLC, Javelina
Pipeline LLC, New Mexico LLC, Pinnacle LLC, Pipeline
Company LLC, PNG Utility LLC, Power Tex LLC and
Texas PNG LLC has been duly formed and is validly existing and
in good standing as a limited liability company under the Texas
Limited Liability Company Act (the " Texas LLC Act ") or the Texas
Business Organizations Code (the " TBOC "), as applicable, each of
Basin LLC, Mason LLC, Michigan Pipeline LLC,
Matrex LLC and West Shore LLC has been duly formed and is
validly existing and in good standing as a limited liability
company under the Michigan Limited Liability Company Act (the
" Michigan LLC Act
") and Oklahoma LLC has been duly formed and is
validly existing and in good standing as a limited liability
company under the Oklahoma Limited Liability Company Act (the
" Oklahoma LLC Act
"), in each case with full limited liability company
power and authority to own or lease its properties and to conduct
its business, in each case in all material respects as described in
the Pricing Disclosure Package and the Prospectus. Each of MarkWest
Energy GP, the Operating Company and each of the Operating
Subs set forth above is duly registered or qualified as a foreign
limited liability company for the transaction of business under the
laws of each jurisdiction in which the character of the business
conducted by it or the nature or location of the properties owned
or leased by it makes such registration or qualification necessary,
except where the failure so to register or qualify would not,
individually or in the aggregate, (i) have a Material Adverse
Effect or (ii) subject the limited partners of the Partnership
to any material liability or disability.
(m) Bright
Star has been duly formed and is validly existing as a general
partnership under the laws of the State of Texas with full
partnership power and authority to own or lease its properties and
to conduct its business, in each case in all material respects as
described in the Pricing Disclosure Package and the Prospectus.
Bright Star is duly registered or qualified as a foreign
partnership for the transaction of business under the laws of each
jurisdiction in which the character of the business conducted by it
or the nature or location of the properties owned or leased by it
makes such registration or qualification necessary, except where
the failure so to register or qualify would not, individually or in
the aggregate, (i) have a Material Adverse Effect or
(ii) subject the limited partners of the Partnership to any
material liability or disability.
(n) The
issued and outstanding limited partner interests of the Partnership
consist of 50,876,295 Common Units and 22,640,000 Class A
Units, as such term is defined in the Third Amended and Restated
Agreement of Limited Partnership of the Partnership (as the same
has been and may be amended or restated at or prior to the
applicable Delivery Date, the " Partnership Agreement "). All
outstanding Common Units and Class A Units and the limited
partner interests represented thereby have been duly authorized and
validly issued in accordance with the Partnership Agreement and are
fully paid (to the extent required under the Partnership Agreement)
and nonassessable (except as such nonassessability may be affected
by Section 17-607 of the Delaware LP Act and as otherwise
described in the Prospectus). MarkWest Hydrocarbon owns 8,900,000
Class A Units and (ii) MarkWest Energy GP owns
13,740,000 Class A Units, in each case free and clear of all
liens, encumbrances, security interests, equities, charges or
claims.
(o) At
the applicable Delivery Date, the Units to be sold by the
Partnership and the limited partner interests represented thereby
will be duly authorized in accordance with the Partnership
Agreement and, when issued and delivered to the Underwriters
against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid (to the extent required
under
5
the Partnership
Agreement) and nonassessable (except as such nonassessability may
be affected by Section 17-607 of the Delaware LP
Act).
(p) The
Partnership owns 100% of the issued and outstanding shares of
capital stock of MarkWest Hydrocarbon; such shares have been duly
authorized and validly issued in accordance with the certificate of
incorporation and bylaws of MarkWest Hydrocarbon (as the same may
be amended or restated at or prior to the applicable Delivery Date)
and are fully paid and nonassessable; and the Partnership owns such
shares of free and clear of all liens, encumbrances, security
interests, equities, charges or claims, except as may arise under
the Credit Agreement, dated as of February 20, 2008 (the
" Credit Agreement "), among the Partnership, Royal Bank of Canada, as
administrative and collateral agent, and the other parties named
therein, or as described in the Pricing Disclosure Package and the
Prospectus.
(q) The
Partnership owns 1% of the issued and outstanding membership
interests in MarkWest Energy GP and 100% of the issued and
outstanding membership interests in the Operating Company; such
membership interests have been duly authorized and validly issued
in accordance with the limited liability company agreement of
MarkWest Energy GP (as the same may be amended or restated at
or prior to the applicable Delivery Date, the " MarkWest Energy GP LLC Agreement
") and the limited liability company agreement of
the Operating Company (as the same may be amended or restated at or
prior to the applicable Delivery Date, the " Operating Company LLC Agreement "), respectively, and are fully paid (to the extent required
under the MarkWest Energy GP LLC Agreement and the
Operating Company LLC Agreement, respectively) and
nonassessable (except in each case as such nonassessability may be
affected by Section 18-607 of the Delaware LLC Act); and
the Partnership owns such membership interests free and clear of
all liens, encumbrances, security interests, equities, charges or
claims, except as may arise under the Credit Agreement or as
described in the Pricing Disclosure Package and the
Prospectus.
(r) MarkWest
Hydrocarbon owns 99% of the issued and outstanding membership
interests in MarkWest Energy GP; such membership interests
have been duly authorized and validly issued in accordance with the
MarkWest Energy GP LLC Agreement and are fully paid (to
the extent required under the MarkWest Energy GP LLC
Agreement) and nonassessable (except as such nonassessability may
be affected by Section 18-607 of the Delaware LLC Act);
and MarkWest Hydrocarbon owns its membership interests free and
clear of all liens, encumbrances, security interests, equities,
charges or claims, except as may arise under the Credit Agreement
or as described in the Pricing Disclosure Package and the
Prospectus.
(s) The
Operating Company directly owns 100% of the issued and outstanding
membership interests in each of the Operating Subs, except that
(i) the Operating Company owns 50% of the issued and
outstanding membership interests in Starfish LLC,
(ii) Basin LLC owns 100% of the issued and outstanding
membership interest in Matrex LLC,
(iii) Oklahoma LLC owns 20% of the issued and outstanding
membership interests in Centrahoma LLC and (iv) as set
forth in Section 1(t), (all such Operating Subs, excluding
Bright Star, which is described in Section 1(t), are referred
to herein collectively as the " LLC
Operating Subs "); such membership
interests have been duly authorized and validly issued in
accordance with the respective limited liability company agreements
of the LLC Operating Subs (as the same may be amended or
restated at or prior to applicable Delivery Date, the "
Operating Subs LLC Agreements
") and are fully paid (to the extent required under
the respective Operating Subs LLC Agreements) and
nonassessable (except as such nonassessability may be affected by
Section 18-607 of the Delaware LLC Act, Article 5.09
of the Texas LLC Act, Section 101.206 of the TBOC,
Sections 2033 and 2035 of the Oklahoma LLC Act or
Section 450.4308 of the Michigan LLC Act); and the
Operating Company, Basin LLC and Oklahoma LLC own such
membership interests free and clear of all liens, encumbrances,
security
6
interests, equities,
charges or claims, except as may arise under the Credit Agreement
or as described in the Pricing Disclosure Package and the
Prospectus.
(t) Pinnacle LLC
owns 90% of the issued and outstanding general partnership
interests in Bright Star; such general partnership interests have
been duly authorized and validly issued in accordance with the
partnership agreement of Bright Star (as the same has been and may
be amended or restated at or prior to the applicable Delivery Date,
the " Bright Star Partnership
Agreement "); and Pinnacle LLC owns
such general partnership interests free and clear of all liens,
encumbrances, security interests, equities, charges or claims,
except for such liens, encumbrances, security interests, equities,
charges and claims arising under the Credit Agreement or described
in the Pricing Disclosure Package and the Prospectus.
(u) Other
than (i) the Partnership's (A) ownership of the capital
stock of MarkWest Hydrocarbon, (B) membership interest in
MarkWest Energy GP and the Operating Company and
(C) ownership of 100% of the issued and outstanding shares of
capital stock in MarkWest Energy Finance Corporation, a Delaware
corporation, (ii) MarkWest Hydrocarbon's membership interest
in MarkWest Energy GP and ownership of 100% of the issued and
outstanding membership interests in Mason LLC, (iii) the
Operating Company's ownership of its membership interest in
the LLC Operating Subs, as described in Section 1(s),
(iv) Basin LLC's membership interest in Matrex LLC,
(v) Oklahoma LLC's membership interest in
Centrahoma LLC, (vi) Pinnacle LLC's ownership of the
general partnership interests in Bright Star and
(vii) Starfish LLC's ownership of 100% of the issued and
outstanding membership interests in West Cameron Dehydration
Company, LLC, a Delaware limited liability company, Stingray
Pipeline Company, L.L.C., a Delaware limited liability company, and
Triton Gathering, LLC, a Delaware limited liability company,
none of the MarkWest Parties owns, or at the applicable Delivery
Date will own, directly or indirectly, any equity or long-term debt
securities of any corporation, partnership, limited liability
company, joint venture, association or other entity.
(v) Except
as may arise under the Credit Agreement or as described in the
Pricing Disclosure Package and the Prospectus or in the
organizational documents of the MarkWest Entities, there are no
preemptive rights or other rights to subscribe for or to purchase,
nor any restriction upon the voting or transfer of, any shares of
capital stock of or partnership or membership interests in any of
the MarkWest Entities. Neither the filing of the Registration
Statement nor the offering or sale of the Units as contemplated by
this Agreement gives rise to any rights for or relating to the
registration of any Units or other securities of the Partnership,
other than as have been waived or deemed waived. Except as
described in the Pricing Disclosure Package and the Prospectus,
there are no outstanding options or warrants to purchase any shares
of capital stock of or partnership or member interests in any
MarkWest Entity.
(w) The
Partnership has all requisite power and authority to issue, sell
and deliver the Units to be sold by it hereunder, in accordance
with and upon the terms and conditions set forth in this Agreement,
the Partnership Agreement and the Registration Statement, the
Pricing Disclosure Package and the Prospectus. At the applicable
Delivery Date, all corporate, partnership and limited liability
company action, as the case may be, required to be taken by the
MarkWest Entities or any of their stockholders, partners or members
for the authorization, issuance, sale and delivery of the Units to
be sold by the Partnership hereunder and the consummation of the
transactions contemplated by this Agreement, shall have been
validly taken.
(x) This
Agreement has been duly authorized, validly executed and delivered
by each of the MarkWest Parties, and constitutes the valid and
legally binding agreement of each of the MarkWest Parties,
enforceable against each of them in accordance with its terms;
provided that the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors'
rights generally and by general
7
principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law); provided, further, that the
indemnity and contribution provisions hereunder may be limited by
applicable laws, general principles of equity and public
policy.
(y) At
or before the applicable Delivery Date:
-
(i) The
Partnership Agreement has been duly authorized, executed and
delivered by MarkWest Energy GP and MarkWest Hydrocarbon, in
the capacities set forth on the signature page to the Partnership
Agreement, and is a valid and legally binding agreement of MarkWest
Energy GP and MarkWest Hydrocarbon, enforceable against each
of them in such capacities in accordance with its terms;
(ii) The
MarkWest Energy GP LLC Agreement has been duly
authorized, executed and delivered by the Partnership and MarkWest
Hydrocarbon and is a valid and legally binding agreement of the
Partnership and MarkWest Hydrocarbon, enforceable against each of
them in accordance with its terms;
(iii) The
Operating Company LLC Agreement has been duly authorized,
executed and delivered by the Partnership and is a valid and
legally binding agreement of the Partnership, enforceable against
it in accordance with its terms;
(iv) Each
of the Operating Subs LLC Agreements has been duly authorized,
executed and delivered by the Operating Company or other MarkWest
Entity party thereto and, assuming due and valid authorization,
execution and delivery thereof by any unaffiliated parties thereto,
as applicable, is a valid and legally binding agreement of the
Operating Company or other MarkWest Entity, as applicable,
enforceable against it in accordance with its terms; and
(v) The
Bright Star Partnership Agreement has been duly authorized,
executed and delivered by Pinnacle LLC and, assuming due and
valid authorization, execution and delivery thereof by the other
party thereto, is a valid and legally binding agreement of
Pinnacle LLC, enforceable against it in accordance with its
terms;
provided that, with
respect to each agreement described in this Section 1(y), the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and, provided,
further, that the indemnity, contribution and exoneration
provisions contained in any of such agreements may be limited by
applicable laws and public policy. The Partnership Agreement, the
MarkWest Energy GP LLC Agreement, the Operating
Company LLC Agreement, the Operating Subs LLC Agreements
and the Bright Star Partnership Agreement are herein collectively
referred to as the " Operative
Agreements ."
(z) None
of the offering, issuance and sale by the Partnership of the Units
to be sold by it hereunder, the execution, delivery and performance
of this Agreement by the MarkWest Parties, or the consummation by
the MarkWest Parties of the transactions contemplated hereby
(i) conflicts or will conflict with or constitutes or will
constitute a violation of the bylaws, partnership agreement,
agreement of limited partnership, limited liability company
agreement or other organizational documents of the MarkWest
Entities, (ii) conflicts or will conflict with or constitutes
or will constitute a breach or violation of, or a default (or an
event which, with notice or lapse of time or both, would constitute
such a default) under any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which any of
the MarkWest Entities is a party or by which any of them or any of
their respective properties may be bound, (iii) violates or
will violate any statute, law or regulation or any order, judgment,
decree or injunction of any court or governmental agency or body
directed to any of the MarkWest Entities or any of their
8
properties in a
proceeding to which any of them or their property is a party or
(iv) results or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of any
of the MarkWest Entities, which conflicts, breaches, violations,
defaults, liens, changes or encumbrances, in the case of
clauses (ii), (iii) or (iv), would, individually or in
the aggregate, have a Material Adverse Effect.
(aa) No
permit, consent, approval, authorization, order, registration,
filing or qualification (" consent ") of or with any court,
governmental agency or body having jurisdiction over the MarkWest
Entities or any of their respective properties is required for the
offering, issuance and sale by the Partnership of the Units to be
sold by it hereunder in connection with the execution, delivery and
performance of this Agreement by the MarkWest Parties or the
consummation by the MarkWest Parties of the transactions
contemplated by this Agreement, except (i) for such consents
required under the Securities Act, the Exchange Act and state
securities or "Blue Sky" laws, (ii) for such consents which
have been, or prior to the applicable Delivery Date will be,
obtained and (iii) for such consents which, if not obtained,
would not, individually or in the aggregate, have a Material
Adverse Effect.
(bb) None
of the MarkWest Entities is in (i) violation of its
certificate of incorporation, limited partnership, formation or
organization, bylaws, partnership agreement, agreement of limited
partnership, limited liability company agreement or other
organizational documents, as applicable, (ii) violation of any
law, statute, ordinance, administrative or governmental rule or
regulation applicable to it or of any order, judgment, decree or
injunction of any court or governmental agency or body having
jurisdiction over it or (iii) breach, default (or an event
which, with notice or lapse of time or both, would constitute such
a default) or violation in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any agreement, indenture,
lease or other instrument to which it is a party or by which it or
any of its properties may be bound, which breach, default or
violation in the case of clause (ii) or (iii) would, if
continued, have a Material Adverse Effect or could materially
impair the ability of any of the MarkWest Parties to perform their
respective obligations under this Agreement or the ability of any
of the MarkWest Entities to perform their respective obligations
under any of the Operative Agreements. To the knowledge of the
MarkWest Parties, no third party to any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
any of the MarkWest Entities is a party or by which any of them is
bound or to which any of their properties is subject, is in default
under any such agreement, which breach, default or violation would,
if continued, have a Material Adverse Effect.
(cc) The
Units, when issued and delivered against payment therefor as
provided herein, and the Class A Units will conform in all
material respects to the descriptions thereof contained in the
Pricing Disclosure Package and the Prospectus.
(dd) Deloitte &
Touche LLP, which has certified certain financial statements
of the Partnership and delivered its opinion with respect to
certain audited financial statements and schedules included in the
Registration Statement, the most recent Preliminary Prospectus and
the Prospectus (or any amendment or supplement thereto), is an
independent registered public accounting firm with respect to the
Partnership within the meaning of the Securities Act and the Rules
and Regulations.
(ee) At
December 31, 2007, the Partnership would have had, on an
actual, pro forma and pro forma as adjusted basis as indicated in
the most recent Preliminary Prospectus and the Prospectus (and any
amendment or supplement thereto), a capitalization as set forth
therein. The historical financial statements (including the related
notes and supporting schedules) included in the Registration
Statement, the most recent Preliminary Prospectus and the
Prospectus (and any amendment or supplement thereto) present fairly
in all material respects the financial position,
9
results of operations
and cash flows of the entities purported to be shown thereby on the
basis stated therein at the respective dates or for the respective
periods to which they apply and have been prepared in accordance
with accounting principles generally accepted in the United States
consistently applied throughout the periods involved, except to the
extent disclosed therein. The summary historical and pro forma
financial information set forth in the most recent Preliminary
Prospectus and the Prospectus (and any amendment or supplement
thereto) under the caption "Summary Historical and Unaudited Pro
Forma Condensed Combined Financial and Operating Data" is
accurately presented in all material respects and prepared on a
basis consistent with the audited and unaudited historical
consolidated financial statements and pro forma financial
statements, as applicable, from which it has been derived. The pro
forma financial statements of the Partnership included in the
Registration Statement, the most recent Preliminary Prospectus and
the Prospectus (and any amendment or supplement thereto) have been
prepared in all material respects in accordance with the applicable
accounting requirements of Article 11 of Regulation S-X
of the Commission; the assumptions used in the preparation of such
pro forma financial statements are, in the opinion of the
management of the Partnership, reasonable; and the pro forma
adjustments reflected in such pro forma financial statements have
been properly applied to the historical amounts in compilation of
such pro forma financial statements.
(ff) The
statistical and market-related data included or incorporated by
reference in the most recent Preliminary Prospectus and the
Prospectus are based on or derived from sources that the
Partnership believes to be reliable and accurate in all material
respects.
(gg) Except
as described in the Pricing Disclosure Package and the Prospectus,
no relationship, direct or indirect, exists between or among the
Partnership, on the one hand, and the directors, officers,
unitholders, customers or suppliers of any of the MarkWest
Entities, on the other hand, that is required to be described in
the Pricing Disclosure Package or the Prospectus which is not so
described.
(hh) Except
as disclosed in the Pricing Disclosure Package and the Prospectus,
none of the MarkWest Entities has sustained since the date of the
latest audited financial statements included in the Registration
Statement, the most recent Preliminary Prospectus and the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, investigation, order or decree, otherwise than as set forth
or contemplated in the Pricing Disclosure Package and the
Prospectus. Except as disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus (or any amendment or
supplement thereto), subsequent to the respective dates as of which
such information is given in the Registration Statement, the
Pricing Disclosure Package and the Prospectus (or any amendment or
supplement thereto), (i) none of the MarkWest Entities has
incurred any liability or obligation, indirect, direct or
contingent, or entered into any transactions, not in the ordinary
course of business, that, individually or in the aggregate, is
material to the MarkWest Entities, taken as a whole,
(ii) there has not been any material change in the
capitalization, or material increase in the short-term debt or
long-term debt, of the MarkWest Entities, taken as a whole and
(iii) there has not been any material adverse change, or any
development involving or which may reasonably be expected to
involve, individually or in the aggregate, a prospective material
adverse change in or affecting the business, prospects, properties,
management, condition (financial or other), partners' capital, net
worth or results of operations of the MarkWest Entities, taken as a
whole.
(ii) There
are no legal or governmental proceedings pending or, to the
knowledge of the MarkWest Parties, threatened against any of the
MarkWest Entities, or to which any of the MarkWest Entities is a
party, or to which any of their respective properties is subject,
that are required to be described in the Registration Statement,
the Pricing Disclosure Package or the Prospectus but are not
described as required, and there are no agreements, contracts,
indentures,
10
leases or other
instruments that are required to be described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described or filed as required by the Rules and
Regulations.
(jj) The
MarkWest Entities have good and indefeasible title to all real
property and good title to all personal property described in the
Pricing Disclosure Package and the Prospectus as owned by the
MarkWest Entities, free and clear of all liens, claims, security
interests, or other encumbrances, except such as (i) do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such
property by the MarkWest Entities, (ii) could not reasonably
be expected to have a Material Adverse Effect or (iii) are
described, and subject to the limitations contained, in the Pricing
Disclosure Package and the Prospectus.
(kk) Each
of the MarkWest Entities has such consents, easements,
rights-of-way, permits or licenses from each person (collectively,
" rights-of-way ") as are necessary to conduct its business in the manner
described, and subject to the limitations contained, in the Pricing
Disclosure Package and the Prospectus, except for
(i) qualifications, reservations and encumbrances that would
not have a Material Adverse Effect and (ii) such rights-of-way
that, if not obtained, would not have, individually or in the
aggregate, a Material Adverse Effect; other than as set forth, and
subject to the limitations contained, in the Pricing Disclosure
Package and the Prospectus, each of the MarkWest Entities has
fulfilled and performed all its material obligations with respect
to such rights-of-way and no event has occurred that allows, or
after notice or lapse of time would allow, revocation or
termination thereof or would result in any impairment of the rights
of the holder of any such rights-of-way, except for such
revocations, terminations and impairments that would not have a
Material Adverse Effect; and, except as described in the Pricing
Disclosure Package and the Prospectus, none of such rights-of-way
contains any restriction that is materially burdensome to the
MarkWest Entities, taken as a whole.
(ll) Each
of the MarkWest Entities has, or at the applicable Delivery Date
will have, such permits, consents, licenses, franchises,
certificates and authorizations of governmental or regulatory
authorities (" permits
") as are necessary to own its properties and to
conduct its business in the manner described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
subject to such qualifications as may be set forth in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus and except for such permits that, if not obtained, would
not, individually or in the aggregate, have a Material Adverse
Effect and except for any permits that are of a routine or
administrative nature that are expected in the reasonable judgment
of management of the Partnership to be obtained, as necessary, in
the ordinary course of business subsequent to the date hereof; each
of the MarkWest Entities has fulfilled and performed all its
material obligations with respect to such permits which are due to
have been fulfilled and performed by such date in the manner
described, and subject to the limitations contained, in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or
results in any impairment of the rights of the holder of any such
permit, except for such revocations, terminations and impairments
that would not, individually or in the aggregate, have a Material
Adverse Effect; and, except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, none
of such permits contains any restriction that is materially
burdensome to the MarkWest Entities, taken as a whole.
(mm) Except
as described in the Pricing Disclosure Package and the Prospectus,
the Partnership (i) makes and keeps books, records and
accounts, which, in reasonable detail, accurately and fairly
reflect transactions and dispositions of assets and
(ii) maintains effective internal control over financial
reporting as defined in Rule 13a-15 under the Exchange Act and
a system of internal accounting controls sufficient to provide
reasonable assurances that
11
(A) transactions
are executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
accounting principles generally accepted in the United States and
to maintain accountability for its assets; (C) access to
assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability
for assets is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(nn) (i)
The Partnership has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15 under
the Exchange Act), (ii) such disclosure controls and
procedures are designed to ensure that the information required to
be disclosed by the Partnership in the reports it files or will
file or submit under the Exchange Act, as applicable, is
accumulated and communicated to management of the Partnership
including its respective principal executive officers and principal
financial officers, as appropriate, to allow such officers to make
timely decisions regarding required disclosure and
(iii) except as described in the Pricing Disclosure Package
and the Prospectus, such disclosure controls and procedures are
effective in all material respects to perform the functions for
which they were established.
(oo) Since
the date of the most recent balance sheet of the Partnership and
its consolidated subsidiaries reviewed or audited by
Deloitte & Touche LLP and the audit committee of the
board of directors of MarkWest Energy GP, the Partnership has
not been advised of (i) any significant deficiencies in the
design or operation of internal controls that could adversely
affect the Partnership's ability to record, process, summarize and
report financial data, or any material weaknesses in internal
controls except as described in the Pricing Disclosure Package and
the Prospectus or (ii) any fraud, whether or not material,
that involves management or other employees who have a significant
role in the Partnership's internal controls.
(pp) There
is and has been no failure on the part of the Partnership or any of
the directors or officers of MarkWest Energy GP, in their
capacities as such, to comply in all material respects with the
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith.
(qq) Each
of the MarkWest Entities has filed (or has obtained extensions with
respect to) all material federal, state and foreign income and
franchise tax returns required to be filed through the date hereof,
which returns are complete and correct in all material respects,
and has timely paid all taxes shown to be due, if any, pursuant to
such returns, other than those (i) which are being contested
in good faith and for which adequate reserves have been established
in accordance with accounting principles generally accepted in the
United States or (ii) which, if not paid, would not have a
Material Adverse Effect.
(rr) None
of the MarkWest Entities is now, and after sale of the Units to be
sold by the Partnership hereunder and application of the net
proceeds from such sale as described in the most recent Preliminary
Prospectus and the Prospectus under the caption "Use of Proceeds,"
none of the MarkWest Entities will be, an "investment company" or a
company "controlled by" an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(ss) Except
as described in the Pricing Disclosure Package and the Prospectus,
the MarkWest Entities (i) are in compliance with any and all
applicable federal, state and local laws and regulations relating
to the protection of human health and safety and the environment or
imposing liability or standards of conduct concerning any Hazardous
Material (as hereinafter defined) (" Environmental Laws "),
(ii) have received all permits required of them under
applicable Environmental Laws to conduct their respective
businesses, (iii) are in compliance with all terms and
conditions of any such permit and (iv) do not have any
liability in connection with the release into the environment of
any Hazardous Materials (as defined below), except where
such
12
noncompliance with
Environmental Laws, failure to receive required permits, or failure
to comply with the terms and conditions of such permits or
liability in connection with such releases would not, individually
or in the aggregate, have a Material Adverse Effect. The term
" Hazardous Material
" means (A) any "hazardous substance" as
defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (B) any "hazardous
waste" as defined in the Resource Conservation and Recovery Act, as
amended, (C) any petroleum or petroleum product, (D) any
polychlorinated biphenyl and (E) any pollutant or contaminant
or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other
Environmental Law.
(tt) No
labor dispute with the employees of the MarkWest Entities exists
or, to the knowledge of the MarkWest Parties, is imminent or
threatened that is reasonably likely to result in a Material
Adverse Effect.
(uu) The
MarkWest Entities maintain insurance covering the properties,
operations, personnel and businesses of the MarkWest Entities
against such losses and risks as are reasonably adequate to protect
them and their businesses in a manner consistent with other
businesses similarly situated. None of the MarkWest Entities has
received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to
be made in order to continue such insurance, and all such insurance
is outstanding and duly in force on the date hereof and will be
outstanding and duly in force on the applicable Delivery
Date.
(vv) Except
as described in the Pricing Disclosure Package and the Prospectus,
there is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official,
domestic or foreign, now pending or, to the knowledge of the
MarkWest Parties, threatened, to which any of the MarkWest Entities
is or may be a party or to which the business or property of any of
the MarkWest Entities is or may be subject, (ii) no statute,
rule, regulation or order that has been enacted, adopted or issued
by any governmental agency or, to the knowledge of the MarkWest
Parties, proposed by any governmental agency and (iii) no
injunction, restraining order or order of any nature issued by a
federal or state court or foreign court of competent jurisdiction
to which any of the MarkWest Entities is or may be subject, that,
in the case of clauses (i), (ii) and (iii) above, is
reasonably likely to (A) individually or in the aggregate have
a Material Adverse Effect, (B) prevent or result in the
suspension of the offering and issuance of the Units, or
(C) in any manner draw into question the validity of this
Agreement or any of the Operative Agreements.
(ww) None
of the MarkWest Entities has distributed and, prior to the later to
occur of (i) any Delivery Date and (ii) completion of the
distribution of the Firm Units or Option Units, as the case may be,
will not distribute, any prospectus (as defined under the
Securities Act) in connection with the offering and sale of the
Units other than any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus, subject to the conditions in
Section 1(i) of this Agreement, or other materials, if any,
permitted by the Securities Act, including Rule 134 of the
Rules and Regulations.
(xx) The
Units have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(yy) None
of the MarkWest Entities (i) has taken, and none of such
persons shall take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which would
reasonably be expected to constitute, the stabilization or
manipulation of the price of the Common Units to facilitate the
sale or resale of the Common Units in violation of any law, rule or
regulation or (ii) since the initial filing of the
Registration Statement, except as contemplated by this Agreement,
(A) has sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of the Common Units or
(B) has paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the
Partnership.
13
-
(zz) Neither
the Partnership nor any of its affiliates has, prior to the date
hereof, made any offer or sale of any securities which could be
"integrated" for purposes of the Securities Act or the Rules and
Regulations with the offer and sale of the Units pursuant to the
Registration Statement. Except as disclosed in the Pricing
Disclosure Package and the Prospectus, neither the Partnership nor
any of its affiliates has sold or issued any security during the
six month period preceding the date of the Prospectus, including
but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act, other than Common
Units issued pursuant to employee benefit plans, qualified unit
option plans or the employee compensation plans or pursuant to
outstanding options, rights or warrants as described in the Pricing
Disclosure Package and the Prospectus.
(aaa) None
of the MarkWest Parties has any subsidiaries, other than MarkWest
Hydrocarbon, MarkWest Energy GP, the Operating Company,
Appalachia LLC, Pinnacle LLC, Javelina Company LLC,
Oklahoma LLC, East Texas LLC and Starfish LLC
(collectively, the " Significant
Subsidiaries "), which, individually or
considered as a whole, would be deemed to be a significant
subsidiary (as such term is defined in Rule 405 under the
Securities Act).
Any certificate
signed by any officer of any MarkWest Party and delivered to the
Representatives or to counsel for the Underwriters shall be deemed
a representation and warranty by such MarkWest Party to each
Underwriter as to the matters covered thereby.
2.
Purchase of the Units by
the Underwriters. On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, the Partnership agrees to sell the Firm Units
to the several Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm
Units set forth opposite that Underwriter's name in
Schedule 1 hereto.
In addition,
the Partnership grants to the Underwriters an option to purchase up
to 750,000 Option Units exercisable in the event that the
Underwriters sell more Common Units than the number of Firm Units
in the offering and as set forth in Section 4 hereof. Each
Underwriter agrees, severally and not jointly, to purchase the
number of Option Units (subject to such adjustments to eliminate
fractional Common Units as the Representatives may determine) that
bears the same proportion to the total number of Option Units to be
sold on such Delivery Date as the number of Firm Units set forth
in Schedule 1 hereto opposite the name of such Underwriter (as such number
may be increased pursuant to Section 9) bears to the total
number of Firm Units.
The price of
both the Firm Units and any Option Units purchased by the
Underwriters shall be $29.904 per Unit.
The Partnership
shall not be obligated to deliver any of the Firm Units or Option
Units to be delivered on the applicable Delivery Date, except upon
payment for all such Units to be purchased on such Delivery Date as
provided herein.
3.
Offering of Units by the
Underwriters. Upon authorization by the
Representatives of the release of the Firm Units, the several
Underwriters propose to offer the Firm Units for sale upon the
terms and conditions to be set forth in the Prospectus.
4.
Delivery of and Payment
for the Units. Delivery of and payment for the Firm
Units shall be made at 10:00 A.M., New York City time, on the
fourth full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement
between the Representatives and the Partnership. This date and time
are sometimes referred to as the " Initial
Delivery Date ." Delivery of the Firm
Units shall be made to the Representatives for the account of each
Underwriter against payment by the several Underwriters through the
Representatives of the aggregate purchase price of the Firm Units
to or upon the order of the Partnership by wire transfer in
immediately available funds to the account or accounts specified by
the Partnership. Time shall be of
14
the essence, and
delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter
hereunder. The Partnership shall deliver the Firm Units through the
facilities of DTC unless the Representatives shall otherwise
instruct.
The option
granted in Section 2 will expire 30 days after the date
of this Agreement and may be exercised in whole or from time to
time in part by written notice being given to the Partnership by
the Representatives; provided
that if such date falls on a day that is not a
business day, the option granted in Section 2 will expire on
the next succeeding business day. Such notice shall set forth the
aggregate number of Option Units as to which the option is
bei
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