Registration Rights Agreement, dated January 3, 2018, between CNX Midstream Partners LP and NBL Midstream, LLC
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this Agreement) is made and entered into as of January 3, 2018 by and between CONE Midstream Partners LP, a Delaware limited partnership (the Partnership), and NBL Midstream, LLC, a Delaware limited liability company (Noble Midstream and, together with the Partnership, the Parties or, each individually, a Party).
WHEREAS, in connection with the transactions contemplated by the Purchase Agreement (as hereinafter defined), Noble Midstream has requested, and the Partnership has agreed to provide, registration rights with respect to the Registrable Securities (as hereinafter defined) as set forth in this Agreement.
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:
1. Definitions. As used in this Agreement, the following terms have the meanings indicated:
Agreement has the meaning set forth in the preamble.
Business Day means any day other than a Saturday, Sunday, any federal holiday or any other day on which banking institutions in the State of Pennsylvania or the State of New York are authorized or required to be closed by law or governmental action.
Claim has the meaning set forth in Section 8(a).
Closing Date means the date of the closing of the transactions contemplated by the Purchase Agreement.
Common Unit means a common unit representing a limited partner interest in the Partnership.
Commission means the Securities and Exchange Commission or any other federal agency then administering the Securities Act or Exchange Act.
Demand Underwritten Offering has the meaning set forth in Section 2(b).
Effective Date means the time and date that a Registration Statement is first declared effective by the Commission or otherwise becomes effective.
Effectiveness Period has the meaning set forth in Section 2(a).
Exchange Act means the Securities Exchange Act of 1934, as amended.
General Partner means CONE Midstream GP LLC, a Delaware limited liability company and the general partner of the Partnership.
Holder means (i) the record holder of Registrable Securities on the date of this Agreement, and (ii) any holder of Registrable Securities to whom registration rights conferred by this Agreement have been transferred in compliance with Section 10(d).
Indemnified Persons has the meaning set forth in Section 8(a).
Noble Midstream has the meaning set forth in the preamble.
Notice means a written request from a Holder which shall (i) specify the number of Registrable Securities intended to be registered, offered, and sold by such Holder, (ii) describe the nature or method of the proposed offer and sale of such Registrable Securities, and (iii) contain the undertaking of such Holder to provide all such information and materials and take all action as may be required or appropriate in order to permit the Partnership to comply with all applicable requirements and obligations in connection with the registration and disposition of such Registrable Securities pursuant to this Agreement.
Party or Parties has the meaning set forth in the preamble.
Partnership has the meaning set forth in the preamble.
Partnership Agreement means the First Amended and Restated Agreement of Limited Partnership of CONE Midstream Partners LP, dated as of September 30, 2014.
Person means an individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, estate, trust, government (or an agency or subdivision thereof) or other entity of any kind.
Piggyback Registration has the meaning set forth in Section 3(a).
Prospectus means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A, Rule 430B or Rule 430C promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement means that certain Purchase Agreement by and between CNX Gas Company LLC, as Buyer, and Noble Midstream, as Seller, dated as of December 14, 2017.
Registrable Securities means any Common Units held by Noble Midstream on the Closing Date; provided, however, that a Registrable Security shall cease to be a Registrable Security: (a) at the time a Registration Statement covering such Registrable Security is declared effective by the Commission, or otherwise becomes effective under the Securities Act, and such Registrable Security has been sold or disposed of pursuant to such Registration Statement; (b) at the time such Registrable Security has been sold or disposed of pursuant to Rule 144 (or any
successor or similar rule or regulation under the Securities Act); (c) when such Registrable Security is held by the Partnership or any of its subsidiaries, and (d) at the time such Registrable Security has been sold in a private transaction in which the transferors rights under this Agreement have not been transferred to the transferee of such securities in compliance with Section 10(d).
Registration Statement means a registration statement of the Partnership in the form required to register under the Securities Act and other applicable law the resale of the Registrable Securities in accordance with the intended plan of distribution of each Holder of Registrable Securities included therein, and including any Prospectus, amendments and supplements to each such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
Rule 144 means Rule 144 promulgated by the Commission pursuant to the Securities Act.
Rule 415 means Rule 415 promulgated by the Commission pursuant to the Securities Act.
Securities Act means the Securities Act of 1933, as amended.
Selling Holder means a Holder who is selling Registrable Securities pursuant to the procedures in this Agreement.
Shelf Registration Statement has the meaning set forth in Section 2(a).
Underwritten Offering means (a) an offering pursuant to a Registration Statement in which Common Units are sold to an underwriter on a firm commitment basis for reoffering to the public, (b) an offering of Common Units pursuant to a Registration Statement that is a bought deal with one or more investment banks and (c) an at-the-market offering pursuant to a Registration Statement in which Common Units are sold to the public through one or more investment banks or managers on a best efforts basis.
Unless the context requires otherwise: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (ii) references to Sections refer to Sections of this Agreement; (iii) the terms include, includes, including and words of like import shall be deemed to be followed by the words without limitation; (iv) the terms hereof, hereto, herein or hereunder refer to this Agreement as a whole and not to any particular provision of this Agreement; (v) unless the context otherwise requires, the term or is not exclusive and shall have the inclusive meaning of and/or; (vi) defined terms herein will apply equally to both the singular and plural forms and derivative forms of defined terms will have correlative meanings; (vii) references to any law or statute shall include all rules and regulations promulgated thereunder, and references to any law or statute shall be construed as including any legal and statutory provisions consolidating, amending, succeeding or replacing the applicable law or statute; (viii) references to any Person include such Persons successors and permitted assigns; and (ix) references to days are to calendar days unless otherwise indicated.
(a) Shelf Registration. The Partnership shall prepare and file a registration statement under the Securities Act (or shall amend its registration statement filed on May 17, 2017) to permit the public resale of Registrable Securities then outstanding from time to time as permitted by Rule 415 of the Securities Act with respect to all of the Registrable Securities (the Shelf Registration Statement). The Shelf Registration Statement filed pursuant to this Section 2(a) shall be on such appropriate registration form of the Commission as shall be selected by the Partnership so long as it permits the resale of Registrable Securities from time to time pursuant to Rule 415 under the Securities Act or such other successor rule as is then applicable. The Partnership shall use commercially reasonable efforts to cause such Shelf Registration Statement to become effective as soon as practicable after the Partnerships release of earnings for the year ended December 31, 2017 and to remain effective and available for the resale of the Registrable Securities by the Selling Holders named therein until the date on which all Registrable Securities covered by such Shelf Registration Statement shall have ceased to be a Registrable Security (the Effectiveness Period). The Shelf Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Selling Holders of any and all Registrable Securities covered by such Registration Statement. The Shelf Registration Statement, when effective (including the documents incorporated therein by reference) will comply as to form in all material respects 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 (in the case of any prospectus contained in such Shelf Registration Statement, in the light of the circumstances under which a statement is made). As soon as practicable following the date that the Shelf Registration Statement becomes effective, but in any event within two Business Days of such date, the Partnership shall provide the Holders with written notice of the effectiveness of the Shelf Registration Statement.
(b) Underwritten Offerings. In the event that one or more Holders request in a Notice to dispose of a number of Registrable Securities that such Holder or Holders reasonably anticipates will result in gross proceeds of at least $50 million in the aggregate (before deduction of underwriting discounts) in an Underwritten Offering (a Demand Underwritten Offering), the Partnership shall retain one or more underwriters that are reasonably acceptable to such Selling Holders in order to permit such Selling Holders to effect such disposition through an Underwritten Offering; provided, however, that the Partnership shall have the exclusive right to select the bookrunning managers for such offering. The Partnership and such Selling Holders shall enter into an underwriting agreement in customary form that is reasonably acceptable to the Partnership and take all reasonable actions as are requested by the managing underwriters to facilitate the Underwritten Offering and the sale of Registrable Securities therein. No Holder may participate in the Underwritten Offering unless it agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions of the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement. Any Holder may withdraw from such Underwritten Offering by notice to the Partnership and the managing underwriter; provided, such notice is delivered prior to the launch of such Underwritten Offering.
(c) Limitations on Underwritten Offerings. The Partnership shall have no obligation to facilitate or participate in more than an aggregate of four Demand Underwritten Offerings pursuant to this Agreement; provided, that, the Partnership shall not be obligated to effect more than two Underwritten Offerings during any period of 12 consecutive months and shall not be obligated to effect any Underwritten Offering within 90 days after the pricing of a primary offering of Common Units by the Partnership (other than in connection with any at-the-market offering or similar continuous offering program by the Partnership).
3. Piggyback Registration.
(a) Right to Piggyback. At any time if the Partnership proposes to file a Registration Statement for an offering of Common Units for cash on behalf of the Partnership or another holder of Common Units (other than an offering relating solely to an employee benefit plan, an offering relating to a transaction on Form S-4 or an offering on any registration statement that does not permit secondary sales), the Partnership shall notify all Holders of such proposal at least five Business Days before the proposed filing date and shall provide such Holders the opportunity to include in such offering of Common Units such number of Registrable Securities as such Holders may request in writing (a Piggyback Registration). The Partnership shall use commercially reasonable efforts to include such number of Registrable Securities held by any Holder in such Registration Statement as each such Holder shall request in a Notice received by the Partnership within two Business Days of such Holders receipt of the notice from the Partnership.
(b) Priority on Piggyback Registrations. If the Registration Statement for which the Partnership gives notice under this Section 3 is for an Underwritten Offering, then any Holders ability to include its desired amount of Registrable Securities in such Registration Statement shall be conditioned on such Holders inclusion of all such Registrable Securities in the Underwritten Offering; provided, that, in the event that the managing underwriter of such Underwritten Offering advises the Partnership and the Holder in writing that in its opinion the inclusion of all or some Registrable Securities would adversely and materially affect the timing or success of the Underwritten Offering, the Partnership will include in such Underwritten Offering such amount of Registrable Securities that the managing underwriter advises may be sold in such offering as follows: (i) in the event of a Demand Underwritten Offering, first, the Registrable Securities to be included by the Holder(s) requesting such Demand Underwritten Offering, second, the Common Units to be included by the Partnership, to the extent it elects to sell Common Units in such Demand Underwritten Offering; and third, the Common Units, if any, proposed to be included in such Demand Underwritten Offering by any other holders of Common Units; (ii) in the event of a Piggyback Registration in connection with an Underwritten Offering of Common Units on behalf of a holder of Common Units other than the Partnership (other than a Demand Underwritten Offering), first, the Common Units requested to be included in such Underwritten Offering by the holder of Common Units that demanded such Underwritten Offering; second, the Common Units requested to be included in such Underwritten Offering by the Partnership; third, the Registrable Securities owned by any Holder, pro rata based on the number of Registrable Securities initially requested by them to be included in such Underwritten Offering and fourth, the Common Units, if any, proposed to be included in the Underwritten Offering by any other holders of Common Units; or (iii) in the event of a Piggyback Registration in connection with an Underwritten Offering of Common Units that is initiated by the
Partnership for a primary offering of Common Units by the Partnership, first, the Common Units to be included in such Underwritten Offering by the Partnership; second, the Registrable Securities owned by any Holder, pro rata based on the number of Registrable Securities initially requested by them to be included in such Underwritten Offering; and third, the Common Units, if any, proposed to be included in the Underwritten Offering by any other holders of Common Units. No Holder may participate in an Underwritten Offering unless such Holder agrees to sell its Registrable Securities covered by the Registration Statement on the terms and conditions of the underwriting agreement and completes and delivers all necessary documents and information reasonably required under the terms of such underwriting agreement. Any Holder may withdraw from such Underwritten Offering by notice to the Partnership and the managing underwriter; provided, such notice is delivered prior to the launch of such Underwritten Offering. The Partnership shall have the right to terminate or withdraw any Registration Statement or Underwritten Offering initiated by it prior to the Effective Date of the Registration Statement or the pricing date of the Underwritten Offering, as applicable.
4. Sale Procedures. In connection with its obligations under this Agreement, the Partnership shall:
(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 Registrable Securities covered by the Shelf Registration Statement;
(b) furnish to each Selling Holder (i) as far in advance as reasonably practicable before filing a 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 a Registration Statement or supplement or amendment thereto and (ii) such number of copies of such 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 Registration Statement; provided, however, that the Partnership will not have any obligation to provide any document pursuant to clause (ii) hereof that is available on the Commissions website;
(c) if applicable, use its commercially reasonable efforts to register or qualify the Registrable Securities covered by a 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, however, that the Partnership shall 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 that would subject it to general service of process in any jurisdiction where it is not then so subject;
(d) promptly notify each Selling Holder and each underwriter, at any time when a prospectus is required to be delivered under the Securities Act, of (i) the filing of a 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 Registration Statement or any post-effective amendment thereto, when the same has become effective and (ii) any written comments from the Commission with respect to any Registration Statement or any document incorporated by reference therein and any written request by the Commission for amendments or supplements to a Registration Statement or any prospectus or prospectus supplement thereto;
(e) immediately notify each Selling Holder and each underwriter, at any time when a prospectus is required to be delivered under the Securities Act, of (i) the occurrence of any event or existence of any fact (but not a description of such event or fact) as a result of which the prospectus or prospectus supplement contained in a 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 case of the prospectus contained therein, in the light of the circumstances under which a statement is made), (ii) the issuance or threat of issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement, or the initiation of any proceedings for that purpose or (iii) the receipt by the Partnership of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction. Following the provision of such notice, subject to Section 7, the Partnership agrees to, as promptly as practicable, amend or supplement the prospectus or prospectus supplement or take other appropriate action so that the prospectus or prospectus supplement does 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 the light of the circumstances then existing and to take such other reasonable action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;
(f) upon request and subject to appropriate confidentiality obligations, furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering of Registrable Securities;
(g) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(h) cause all Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by the Partnership are then listed;
(i) use its commercially reasonable efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Partnership to enable the Selling Holders to consummate the disposition of such Registrable Securities;
(j) provide a transfer agent and registrar for all Registrable Securities not later than the Effective Date of the Shelf Registration Statement;
(k) enter into customary agreements and take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of the Registrable Securities, including the provision of comfort letters and legal opinions as are customary in such securities offerings;
(l) the Partnership will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statements and the disposition of all Registrable Securities covered by each Registration Statement; and
(m) in connection with any Demand Underwritten Offering, the Partnership will use commercially reasonable efforts to cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet with prospective investors in presentations, meetings and road shows.
5. Suspension. Each Selling Holder, upon receipt of notice from the Partnership of the happening of any event of the kind described in Section 4(e), shall forthwith discontinue disposition of the Registrable Securities by means of a prospectus or prospectus supplement until such Selling Holders receipt of the copies of the supplemented or amended prospectus contemplated by such subsection, or until it is advised in writing by the Partnership that the use of the prospectus may be resumed, and receipt of copies of any additional or supplemental filings incorporated by reference in the prospectus.
6. Expenses. Except as set forth in an underwriting agreement for the applicable Underwritten Offering or as otherwise agreed between a Selling Holder and the Partnership, all costs and expenses of a Registration Statement filed or an Underwritten Offering that includes Registrable Securities pursuant to this Agreement (other than underwriting discounts and commissions on Registrable Securities and fees and expenses of counsel and advisors to Selling Holders) shall be paid by the Partnership.
7. Delay Right. Notwithstanding anything to the contrary in this Agreement, if the General Partner determines that the Partnerships compliance with its obligations in this Agreement would be detrimental to the Partnership because such registration or an Underwritten Offering thereunder would (a) materially interfere with a significant acquisition, reorganization or other similar transaction involving the Partnership, (b) require premature disclosure of material information that the Partnership has a bona fide business purpose for preserving as confidential or (c) render the Partnership unable to comply with requirements under applicable securities laws, then the Partnership shall have the right to postpone compliance with such obligations for a period of not more than six months; provided, however, that such right may not be exercised more than twice in any 24-month period.
(a) The Partnership shall, to the fullest extent permitted by law, but subject to the limitations expressly provided in this Agreement, indemnify and hold harmless each Selling Holder, its officers, directors and each Person who controls the Selling Holder (within the meaning of the Securities Act) and any agent thereof (collectively, Indemnified Persons) from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (hereinafter referred to in this Section 8 as a Claim and in the plural as Claims) based upon, arising out of or resulting from any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, preliminary prospectus, final prospectus or issuer free writing prospectus under which any Registrable Securities were registered or sold by such Selling Holder under the Securities Act, or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Partnership shall not be liable to any Indemnified Person to the extent that any such Claim arises out of, is based upon or results from an untrue statement or alleged untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus or issuer free writing prospectus in reliance upon and in conformity with written information furnished to the Partnership by or on behalf of such Indemnified Person specifically for use in the preparation thereof.
(b) Each Selling Holder shall, to the fullest extent permitted by law, indemnify and hold harmless the Partnership, the General Partner, the General Partners officers and directors and each Person who controls the Partnership or the General Partner (within the meaning of the Securities Act) and any agent thereof to the same extent as the foregoing indemnity from the Partnership to the Selling Holders, but only with respect to information regarding such Selling Holder furnished in writing by or on behalf of such Selling Holder expressly for inclusion in a Registration Statement, preliminary prospectus, final prospectus or free writing prospectus relating to the Registrable Securities held by such Selling Holder.
(c) The provisions of this Section 8 shall be in addition to any other rights to indemnification or contribution that a Person entitled to indemnification under this Section 8 may have pursuant to law, equity, contract, or otherwise.
9. Facilitation of Sales Pursuant to Rule 144. To the extent it shall be required to do so under the Exchange Act, the Partnership shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports required under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the request of any Holder in connection with that Holders sale pursuant to Rule 144, the Partnership shall deliver to such Holder a written statement as to whether it has complied with such requirements.
(a) Specific Performance. Damages in the event of breach of this Agreement by a Party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed that each Party, in addition to and without limiting any other remedy or right it may have, will have the right to seek an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the Parties hereto hereby waives, to the fullest extent permitted by law, any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude any such Party from pursuing any other rights and remedies at law or in equity that such Party may have.
(b) Amendments and Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed by the Partnership and Holders that hold a majority of the Registrable Securities as of the date of such waiver or amendment; provided, that any waiver or amendment that would have a disproportionately adverse effect on a Holder relative to the other Holders shall require the consent of such Holder. The Partnership shall provide prior notice to all Holders of any proposed waiver or amendment. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder in any manner impair the exercise of any such right.
(c) Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made if delivered personally or sent by overnight courier (with evidence of confirmation of receipt) to the Parties at the following addresses:
If to the Partnership:
CONE Midstream Partners LP
With copy to:
Latham and Watkins LLP
811 Main St., Suite 3700
Houston, Texas 77002
Attention: Jeffrey S. Munoz
If to any Person who is then the registered Holder:
|To the address of such Holder as it appears in the applicable register for the Registrable Securities or such other address as may be designated in writing by such Holder (including on the signature pages hereto).|
(d) Successors and Assigns; Transfer of Registration Rights. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns. The rights of a Holder hereunder may be transferred, assigned, or otherwise conveyed on a pro rata basis in connection with any transfer, assignment, or other conveyance of Registrable Securities to any transferee or assignee; provided, that, all of the following additional conditions are satisfied (i) such transfer or assignment is effected in accordance with applicable securities laws; (ii) such transferee or assignee agrees in writing to become bound by and subject to the terms of this Agreement; (iii) the Partnership is given written notice by such Holder of such transfer or assignment, stating the name and address of the transferee or assignee and identifying the Registrable Securities with respect to which such rights are being transferred or assigned; and (iv) such transfer or assignment consists of a number of Registrable Securities equal to at least 25% of the aggregate amount of Registrable Securities outstanding as of the Closing Date.
(e) Other Registration Rights. Noble Midstream hereby acknowledges and agrees that the registration rights provided for in this Agreement with respect to the Registrable Securities are the sole and exclusive registration rights of Noble Midstream and its Affiliates (as defined in the Partnership Agreement) with respect to securities of the Partnership. For the avoidance of doubt, Noble Midstream hereby acknowledges and agrees that the registration rights under Section 7.12 of the Partnership Agreement, will no longer be available to Noble Midstream and its Affiliates, and Noble Midstream for itself and for and on behalf of its Affiliates renounces any claim to the registration rights under Section 7.12 of the Partnership Agreement.
(f) No Third Party Beneficiaries. Nothing in this Agreement, whether express or implied, shall be construed to give any Person, other than the Parties hereto or their respective successors and permitted assigns, any legal or equitable right, remedy, claim or benefit under or in respect of this Agreement.
(g) Execution and Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile or electronic mail transmission, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such signature delivered by facsimile or electronic mail transmission were the original thereof.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) to the extent such rules or provisions would cause the application of the laws of any jurisdiction other than the State of Delaware.
(j) Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10(J) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
(k) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof and the matters addressed or governed hereby, whether oral or written.
(m) Termination. Except for Section 8, this Agreement shall terminate as to any Holder, on the earlier to occur of (i) when all Registrable Securities held by such Holder no longer constitute Registrable Securities and (ii) the third anniversary of the effectiveness of the Shelf Registration Statement.
[THIS SPACE LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
|CONE MIDSTREAM PARTNERS LP|
|By: CONE MIDSTREAM GP LLC, its general partner|
/s/ Stephen W. Johnson
|Name:||Stephen W. Johnson|
|Title:||Chief Administrative Officer|
[Signature Page to Registration Rights Agreement]
|NBL MIDSTREAM, LLC|
/s/ Aaron G. Carlson
|Name:||Aaron G. Carlson|
[Signature Page to Registration Rights Agreement]