Exhibit 10.28


 


 




 





 


REGISTRATION RIGHTS
AGREEMENT



BY AND AMONG



COPANO ENERGY, L.L.C.



AND



KAYNE ANDERSON MLP INVESTMENT COMPANY



RCH ENERGY MLP FUND LP

RCH ENERGY MLP FUND-A LP

TORTOISE ENERGY INFRASTRUCTURE CORPORATION

TORTOISE ENERGY CAPITAL CORPORATION

GOLDMAN, SACHS & CO. 

ENERGY INCOME AND GROWTH FUND

FIDUCIARY/CLAYMORE MLP OPPORTUNITY FUND

ALERIAN OPPORTUNITY PARTNERS LP

ALERIAN CAPITAL PARTNERS LP

STROME MLP FUND, L.P.

STROME ALPHA, LP

AND

STROME FAMILY FOUNDATION


 


























Table of Contents


	
   

  	
   

  	
   

  
	
  ARTICLE I

  DEFINITIONS

  
	
  Section 1.01

  	
  Definitions

  	
   

  
	
  Section 1.02

  	
  Registrable
  Securities

  	
   

  
	
  ARTICLE II

  REGISTRATION RIGHTS

  
	
  Section 2.01

  	
  Shelf Registration.

  	
   

  
	
  Section 2.02

  	
  Piggyback Rights.

  	
   

  
	
  Section 2.03

  	
  Underwritten
  Offering.

  	
   

  
	
  Section 2.04

  	
  Sale Procedures

  	
   

  
	
  Section 2.05

  	
  Cooperation by
  Holders

  	
   

  
	
  Section 2.06

  	
  Restrictions on
  Public Sale by Holders of Registrable Securities

  	
   

  
	
  Section 2.07

  	
  Expenses.

  	
   

  
	
  Section 2.08

  	
  Indemnification.

  	
   

  
	
  Section 2.09

  	
  Rule 144 Reporting

  	
   

  
	
  Section 2.10

  	
  Transfer or
  Assignment of Registration Rights

  	
   

  
	
  Section 2.11

  	
  Limitation on
  Subsequent Registration Rights

  	
   

  
	
  Section 2.12

  	
  Lock-Up

  	
   

  
	
  ARTICLE III

  MISCELLANEOUS

  
	
  Section 3.01

  	
  Communications

  	
   

  
	
  Section 3.02

  	
  Successor and Assigns

  	
   

  
	
  Section 3.03

  	
  Assignment of Rights

  	
   

  
	
  Section 3.04

  	
  Aggregation of
  Purchased Units

  	
   

  
	
  Section 3.05

  	
  Recapitalization,
  Exchanges, Etc. Affecting the Common Units

  	
   

  
	
  Section 3.06

  	
  Specific Performance

  	
   

  
	
  Section 3.07

  	
  Counterparts

  	
   

  
	
  Section 3.08

  	
  Headings

  	
   

  
	
  Section 3.09

  	
  Governing Law

  	
   

  
	
  Section 3.10

  	
  Severability of
  Provisions

  	
   

  
	
  Section 3.11

  	
  Entire Agreement

  	
   

  
	
  Section 3.12

  	
  Amendment

  	
   

  
	
  Section 3.13

  	
  No Presumption

  	
   

  



 


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REGISTRATION RIGHTS
AGREEMENT


THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”) is made and entered into as of August 1,
2005, by and among Copano Energy, L.L.C., a Delaware limited liability company
(“Copano”), and KAYNE ANDERSON MLP INVESTMENT COMPANY (“KAMIC”),
RCH ENERGY MLP FUND LP (“RCH”), RCH ENERGY MLP FUND-A LP (“RCH-A”),
GOLDMAN, SACHS & CO., on behalf of Principal Strategies Group (“Goldman”),
TORTOISE ENERGY INFRASTRUCTURE CORPORATION (“TEIFC”), TORTOISE ENERGY
CAPITAL CORPORATION (“TECC”), ENERGY INCOME AND GROWTH FUND (“EIGF”),
FIDUCIARY/CLAYMORE MLP OPPORTUNITY FUND (“FCMOF”), ALERIAN OPPORTUNITY
PARTNERS LP (“AOP”), ALERIAN CAPITAL PARTNERS LP (“ACP”), STROME
MLP FUND, L.P. (“SMF”), STROME ALPHA, LP (“SA”) AND STROME FAMILY
FOUNDATION (“SFF”) (each of KAMIC, RCH, RCH-A, TEIFC, TECC, EIGF, FCMOF,
AOP, ACP, SMF, SA and SFF a “Purchaser” and collectively, the “Purchasers”).


WHEREAS, this Agreement
is made in connection with the Closing of the issuance and sale of the
Purchased Units pursuant to the Class B Unit and Common Unit Purchase
Agreement, dated as of June 17, 2005, by and among Copano and the Purchasers
(the “Purchase Agreement”);


WHEREAS, Copano has
agreed to provide the registration and other rights set forth in this Agreement
for the benefit of the Purchasers pursuant to the Purchase Agreement; and


WHEREAS, it is a
condition to the obligations of each Purchaser and Copano under the Purchase
Agreement that this Agreement be executed and delivered.


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:


ARTICLE I

DEFINITIONS


Section 1.01          Definitions.  Capitalized terms used herein without
definition shall have the meanings given to them in the Purchase Agreement.  The terms set forth below are used herein as
so defined:


“Effectiveness Period”
has the meaning specified therefor in Section 2.01 of this
Agreement.


“Holder” means the
record holder of any Registrable Securities.


“Included Registrable
Securities” has the meaning specified therefor in Section 2.02(a)
of this Agreement.


“Liquidated Damages”
has the meaning specified therefor in Section 2.01(a) of this
Agreement.





















“Liquidated Damages
Multiplier” means the product of $28.05 times the number of Class B Units purchased
by such Purchaser plus the product of $28.78 times the number of Common Units
held by such Purchaser.


“Losses” has the
meaning specified therefor in Section 2.08(a) of this Agreement.


“Managing Underwriter”
means, with respect to any Underwritten Offering, the book-running lead manager
of such Underwritten Offering.


“Other Holder” has
the meaning specified in Section 2.02(b).


“Piggyback
Registration” has the meaning specified therefor in Section 2.02(a)
of this Agreement.


“Purchase Agreement”
has the meaning specified therefor in the Recitals of this Agreement.


“Purchaser” and “Purchasers”
have the meanings specified therefor in the introductory paragraph of this
Agreement.


“Registrable
Securities” means: (i) the Purchased Units, (ii) the Common Units
underlying the Class B Units, and (iii) any Common Units or Class B Units
issued as Liquidated Damages pursuant to Section 2.01(a) this
Agreement, all of which Registrable Securities are subject to the rights
provided herein until such rights terminate pursuant to the provisions hereof.


“Registration Expenses”
has the meaning specified therefor in Section 2.07(a) of this
Agreement.


“Selling Expenses”
has the meaning specified therefor in Section 2.07(a) of this
Agreement.


“Selling Holder”
means a Holder who is selling Registrable Securities pursuant to a registration
statement.


“Shelf Registration
Statement” means a registration statement under the Securities Act to
permit the resale of the Registrable Securities from time to time, including as
permitted by Rule 415 of the Securities Act (or any similar provision then
in force under the Securities Act).


“Underwritten Offering”
means an offering (including an offering pursuant to a Shelf Registration
Statement) in which Common Units are sold to an underwriter on a firm
commitment basis for reoffering to the public or an offering that is a “bought
deal” with one or more investment banks.


Section 1.02          Registrable Securities.  Any Registrable Security will cease to be a
Registrable Security when (a) a registration statement covering such
Registrable Security has been declared effective by the Commission and such
Registrable Security has been sold or disposed of pursuant to such effective
registration statement; (b) such Registrable Security has been disposed of
pursuant to any section of Rule 144 (or any similar provision then in
force


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under the Securities Act); (c) such Registrable Security is held
by Copano or one of its subsidiaries; or (d) such Registrable Security has
been sold in a private transaction in which the transferor’s rights under this
Agreement are not assigned to the transferee of such securities.


ARTICLE II

REGISTRATION RIGHTS


Section 2.01          Shelf
Registration.


(a)           Deadline
To Go Effective.  As soon as
practicable following the Closing, but in any event within 135 days of the
Closing, Copano shall prepare and file a Shelf Registration Statement under the
Act with respect to all of the Registrable Securities.  Copano shall use its commercially reasonable
efforts to cause the Shelf Registration Statement to become effective no later
than 195 days after the date of the Closing. 
A Shelf Registration Statement filed pursuant to this Section 2.01
shall be on such appropriate registration form of the Commission as shall be
selected by Copano; provided, however, that if a prospectus supplement
will be used in connection with the marketing of an Underwritten Offering from
the Shelf Registration Statement and the Managing Underwriter at any time shall
notify Copano in writing that, in the sole judgment of such Managing
Underwriter, inclusion of detailed information to be used in such prospectus
supplement is of material importance to the success of the Underwritten
Offering of such Registrable Securities, Copano shall use its commercially
reasonable efforts to include such information in the prospectus.  Copano will use its commercially reasonable
efforts to cause the Shelf Registration Statement filed pursuant to this Section 2.01
to be continuously effective under the Securities Act until the earlier of (i)
when all such Registrable Securities are sold by the Purchaser or (ii) two
years from the date the Shelf Registration Statement is declared effective by
the Commission (the “Effectiveness Period”).  The Shelf Registration Statement when
declared effective (including the documents incorporated therein by reference)
will comply as to form with all applicable requirements of the Securities Act
and the Exchange Act and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.


(b)           Failure
To Go Effective.  If the Shelf
Registration Statement required by Section 2.01 is not declared
effective within 225 days after Closing, then each Purchaser shall be entitled
to a payment (with respect to each of such Purchaser’s Purchased Units), as
liquidated damages and not as a penalty, of .25% of the Liquidated Damages
Multiplier per 30-day period for the first 60 days following the 225th day,
increasing by an additional .25% of the Liquidated Damages Multiplier per
30-day period for each subsequent 60 days, up to a maximum of 1.00% of the
Liquidated Damages Multiplier per 30-day period (the “Liquidated Damages”),
which shall be payable within 10 Business Days of the end of such 30-day
period.  The Liquidated Damages shall be
paid to each Purchaser in cash; provided,
however, if Copano certifies that
it is unable to pay the Liquidated Damages in cash because such payment would
result in a breach under any of Copano’s or Copano’s Subsidiaries’ credit
facilities filed as exhibits to Copano’s SEC Documents, then Copano may pay the
Liquidated Damages in kind in the form of the issuance of additional
(A) Common Units or (B) Common Units and Class B Units.  Class B Units may only be issued as
Liquidated Damages if and to the extent required by The Nasdaq National Market
or similar regulation.  If Common Units
and Class B Units are issued as Liquidated Damages as a result of a requirement
by The Nasdaq National Market or similar


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regulation, then such units will be issued to each Purchaser in such a
manner as to maximize the number of Common Units issued to each Purchaser and
in no event shall the percentage of Class B Units issued to a Purchaser
relative to the percentage of Common Units issued to such Purchaser exceed the
percentage that is determined by dividing the number of Class B Units
originally purchased by such Purchaser by the number of Common Units plus the
number of Class B Units originally purchased by such Purchaser. Upon any
issuance of Common Units and/or Class B Units as Liquidated Damages,
Copano shall promptly prepare and file an amendment to the Shelf Registration
Statement prior to its effectiveness adding such Common Units and/or
Class B Units to such Shelf Registration Statement as additional
Registrable Securities. The determination of the number of Common Units and/or
Class B Units to be issued as Liquidated Damages shall be equal to the
Liquidated Damages divided by the average closing price of Copano’s Common
Units on The Nasdaq National Market for the ten trading days immediately
preceding the date on which the Liquidated Damages payment is due.  The payment of the Liquidated Damages to a
Purchaser shall cease at such time as the Purchased Units of such Purchaser
become eligible for resale under Rule 144(k).


(c)           Waiver
of Liquidated Damages.  If Copano is
unable to cause a Shelf Registration Statement to go effective within the 225
days as a result of an acquisition, merger, reorganization, disposition or
other similar transaction, then Copano may request a waiver of the Liquidated
Damages, which may be granted or withheld by the consent of the holders of a
majority of the Purchased Units, in their sole discretion.  Purchaser’s rights (and any transferee’s
rights pursuant to Section 2.10) under this Section 2.01
shall terminate when such Registrable Securities become eligible for resale
under Rule 144(k) (or any similar provision then in force under the
Securities Act).


(d)           Delay
Rights.  Notwithstanding anything to
the contrary contained herein, Copano may, upon written notice to any Selling
Holder whose Registrable Securities are included in the Shelf Registration
Statement, suspend such Selling Holder’s use of any prospectus which is a part
of the Shelf Registration Statement (in which event the Selling Holder shall
discontinue sales of the Registrable Securities pursuant to the Shelf
Registration Statement) if (i) Copano is pursuing an acquisition, merger,
reorganization, disposition or other similar transaction and Copano determines
in good faith that Copano’s ability to pursue or consummate such a transaction
would be materially adversely affected by any required disclosure of such
transaction in the Shelf Registration Statement or (ii) Copano has
experienced some other material non-public event the disclosure of which at
such time, in the good faith judgment of Copano, would materially adversely
affect Copano; provided, however, in no event shall the Purchasers
be suspended for a period exceeding an aggregate of ninety (90) days (exclusive
of days covered by any lock-up agreement executed by a Purchaser in connection
with any Underwritten Offering by Copano or a Purchaser) in any 365-day
period.  Upon disclosure of such
information or the termination of the condition described above, Copano shall
provide prompt notice to the Selling Holders whose Registrable Securities are
included in the Shelf Registration Statement, and shall promptly terminate any
suspension of sales it has put into effect and shall take such other actions to
permit registered sales of Registrable Securities as contemplated in this
Agreement.


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Section
2.02          Piggyback Rights.


(a)           Participation.  If at any time Copano proposes to file (i) a
prospectus supplement to an effective shelf registration statement, including
the Shelf Registration Statement contemplated by Section 2.01, or
(ii) a registration statement, other than a shelf registration statement, in
either case, for the sale of Common Units in an Underwritten Offering for its
own account and/or another Person, then as soon as practicable but not less
than three (3) Business Days prior to the filing of (x) any preliminary
prospectus supplement relating to such Underwritten Offering pursuant to
Rule 424(b), (y) the prospectus supplement relating to such
Underwritten Offering pursuant to Rule 424(b) (if no preliminary
prospectus supplement is used) or (z) such registration statement as the
case may be, then, Copano shall give notice of such proposed Underwritten
Offering to the Holders and such notice shall offer the Holders the opportunity
to include in such Underwritten Offering such number of Registrable Securities
(the “Included Registrable Securities”) as each such Holder may request
in writing; provided, however, that if Copano has been advised
by the Managing Underwriter that the inclusion of Registrable Securities for
sale for the benefit of the Holders will have an adverse effect on the price,
timing or distribution of the Common Units, then the amount of Registrable
Securities to be offered for the accounts of Holders shall be determined based
on the provisions of Section 2.02(b).  The notice required to be provided in this Section 2.02(a)
to Holders shall be provided on a Business Day pursuant to Section 3.01
hereof and receipt of such notice shall be confirmed by Holder.  Holder shall then have one Business Day after
such Holder confirms receipt of the notice to request inclusion of Registrable
Securities in the Underwritten Offering. 
If no request for inclusion from a Holder is received within the
specified time, such Holder shall have no further right to participate in such
Underwritten Offering.  If, at any time
after giving written notice of its intention to undertake an Underwritten
Offering and prior to the closing of such Underwritten Offering, Copano shall
determine for any reason not to undertake or to delay such Underwritten
Offering, Copano may, at its election, give written notice of such
determination to the Selling Holders and, (x) in the case of a determination
not to undertake such Underwritten Offering, shall be relieved of its
obligation to sell any Included Registrable Securities in connection with such
terminated Underwritten Offering, and (y) in the case of a determination to
delay such Underwritten Offering, shall be permitted to delay offering any
Included Registrable Securities for the same period as the delay in the
Underwritten Offering. Any Selling Holder shall have the right to withdraw such
Selling Holder’s request for inclusion of such Selling Holder’s Registrable
Securities in such offering by giving written notice to Copano of such
withdrawal up to and including the time of pricing of such offering.  Each Holder’s rights under this Section 2.02(a)
shall terminate when such Holder holds less than five million ($5,000,000) of
Purchased Units.


(b)           Priority
of Piggyback Rights.  If the Managing
Underwriter or Underwriters of any proposed Underwritten Offering of Common
Units included in an Underwritten Offering involving Included Registrable
Securities advises Copano that the total amount of Common Units that the
Selling Holders and any other Persons intend to include in such offering
exceeds the number that can be sold in such offering without being likely to
have an adverse effect on the price, timing or distribution of the Common Units
offered or the market for the Common Units, then the Common Units to be
included in such Underwritten Offering shall include the number of Registrable
Securities that such Managing Underwriter or Underwriters advises Copano can be
sold without having such adverse effect, with such number to be allocated
(i) first, to Copano;


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(ii) second, to Copano’s pre-IPO investors as provided in (A) the
Stakeholders’ Agreement dated July 30, 2004, and (B) Article XIV of
the Company’s Second Amended and Restated Limited Liability Company Agreement
dated November 15, 2004; and (iii) third, pro rata among the Selling
Holders who have requested participation in such Underwritten Offering based,
for each Selling Holder, on the fraction derived by dividing (x) the
number of Common Units proposed to be sold by such Selling Holder in such
Underwritten Offering by (y) the aggregate number of Common Units proposed
to be sold be all Selling Holders in such Underwritten Offering.  As of the date of execution of this
Agreement, there are no other Persons with Registration Rights other than as
described in this Section 2.02(b).


Section 2.03          Underwritten
Offering.


(a)           S-3
Registration.  If a Selling Holder
elects to dispose of Registrable Securities under the Shelf Registration
Statement pursuant to an Underwritten Offering and reasonably anticipates gross
proceeds of greater than $20 million from such Underwritten Offering, Copano
shall, at the request of such Selling Holder, enter into an underwriting
agreement in customary form with the Managing Underwriter or Underwriters,
which shall include, among other provisions, indemnities to the effect and to
the extent provided in Section 2.08, and shall take all such other
reasonable actions as are requested by the Managing Underwriter to expedite or
facilitate the disposition of the Registrable Securities; provided, however,
Copano management will not be required to participate in any roadshow or
similar marketing effort on behalf of any Selling Holder.


(b)           General
Procedures.  In connection with any
Underwritten Offering under this Agreement, Copano shall be entitled to select
the Managing Underwriter or Underwriters. 
In connection with an Underwritten Offering under Section 2.01
or Section 2.03 hereof, each Selling Holder and Copano shall be
obligated to enter into an underwriting agreement that contains such
representations, covenants, indemnities and other rights and obligations as are
customary in underwriting agreements for firm commitment offerings of
securities.  No Selling Holder may
participate in such Underwritten Offering unless such Selling Holder agrees to
sell its Registrable Securities on the basis provided in such underwriting
agreement and completes and executes all questionnaires, powers of attorney,
indemnities and other documents reasonably required under the terms of such
underwriting agreement.  Each Selling
Holder may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, Copano to and for the
benefit of such underwriters also be made to and for such Selling Holder’s
benefit and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement also be conditions
precedent to its obligations. No Selling Holder shall be required to make any
representations or warranties to or agreements with Copano or the underwriters
other than representations, warranties or agreements regarding such Selling
Holder and its ownership of the securities being registered on its behalf and
its intended method of distribution and any other representation required by
law.  If any Selling Holder disapproves
of the terms of an underwriting, such Selling Holder may elect to withdraw
therefrom by notice to Copano and the Managing Underwriter; provided, however,
that such withdrawal must be made prior to the time in the penultimate sentence
of Section 2.02(a) hereof to be effective.  No such withdrawal or abandonment shall
affect Copano’s obligation to pay Registration Expenses.


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Section 2.04          Sale
Procedures.  In connection with its
obligations contained in Section 2.01 and Section 2.03,
Copano will, as expeditiously as possible:


(a)           prepare
and file with the Commission such amendments and supplements to the Shelf
Registration Statement and the prospectus used in connection therewith as may
be necessary to keep the Shelf Registration Statement effective for the
Effectiveness Period and as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
the Shelf Registration Statement;


(b)           furnish
to each Selling Holder (i) as far in advance as reasonably practicable
before filing the Shelf Registration Statement or any other registration statement
contemplated by this Agreement or any supplement or amendment thereto, upon
request, copies of reasonably complete drafts of all such documents proposed to
be filed (including exhibits and each document incorporated by reference
therein to the extent then required by the rules and regulations of the
Commission), and provide each such Selling Holder the opportunity to object to
any information pertaining to such Selling Holder and its plan of distribution
that is contained therein and make the corrections reasonably requested by such
Selling Holder with respect to such information prior to filing the Shelf
Registration Statement or such other registration statement or supplement or
amendment thereto, and (ii) such number of copies of the Shelf Registration
Statement or such other registration statement and the prospectus included
therein and any supplements and amendments thereto as such Persons may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities covered by such Shelf Registration Statement or
other registration statement;


(c)           if
applicable, use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by the Shelf Registration Statement or any other
registration statement contemplated by this Agreement 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 Copano will not be required to qualify generally to transact business in
any jurisdiction where it is not then required to so qualify or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;


(d)           promptly
notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of
(i) the filing of the Shelf Registration Statement or any other
registration statement contemplated by this Agreement or any prospectus or
prospectus supplement to be used in connection therewith, or any amendment or
supplement thereto, and, with respect to such Shelf Registration Statement or
any other 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 filing referred to in clause (i) and any written
request by the Commission for amendments or supplements to the Shelf Registration
Statement or any other registration statement or any prospectus or prospectus
supplement thereto;


(e)           immediately
notify each Selling Holder and each underwriter, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of
(i) the happening of any event as a result of which the prospectus or
prospectus supplement contained


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in the Shelf Registration Statement or any other registration statement
contemplated by this Agreement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing; (ii) the issuance or threat of
issuance by the Commission of any stop order suspending the effectiveness of
the Shelf Registration Statement or any other registration statement
contemplated by this Agreement, or the initiation of any proceedings for that
purpose; or (iii) the receipt by Copano 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,
Copano 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 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)           in
the case of an Underwritten Offering, furnish upon request, (i) an opinion
of counsel for Copano, dated the effective date of the applicable registration
statement or the date of any amendment or supplement thereto, and a letter of
like kind dated the date of the closing under the underwriting agreement, and
(ii) a “cold comfort” letter, dated the effective date of the applicable
registration statement or the date of any amendment or supplement thereto and a
letter of like kind dated the date of the closing under the underwriting
agreement, in each case, signed by the independent public accountants who have
certified Copano’s financial statements included or incorporated by reference
into the applicable registration statement, and each of the opinion and the
“cold comfort” letter shall be in customary form and covering substantially the
same matters with respect to such registration statement (and the prospectus
and any prospectus supplement included therein) as are customarily covered in
opinions of issuer’s counsel and in accountants’ letters delivered to the
underwriters in Underwritten Offerings of securities and such other matters as
such underwriters may reasonably request;


(h)           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;


(i)            make
available to the appropriate representatives of the Managing Underwriter and
Selling Holders access to such information and Copano personnel as is
reasonable and customary to enable such parties to establish a due diligence
defense under the Securities Act; provided,
however, that Copano need not
disclose any information to any such representative unless and until such
representative has entered into a confidentiality agreement with Copano;


8





















(j)            cause
all such 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 Copano are then listed;


(k)           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 Copano to
enable the Selling Holders to consummate the disposition of such Registrable
Securities;


(l)            provide
a transfer agent and registrar for all Registrable Securities covered by such
registration statement not later than the effective date of such registration
statement; and


(m)          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 such Registrable Securities.


Each Selling Holder, upon
receipt of notice from Copano of the happening of any event of the kind
described in subsection (e) of this Section 2.04, shall forthwith
discontinue disposition of the Registrable Securities until such Selling
Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (e) of this Section 2.04 or until it is
advised in writing by Copano that the use of the prospectus may be resumed, and
has received copies of any additional or supplemental filings incorporated by
reference in the prospectus, and, if so directed by Copano, such Selling Holder
will, or will request the managing underwriter or underwriters, if any, to
deliver to Copano (at Copano’s expense) all copies in their possession or
control, other than permanent file copies then in such Selling Holder’s
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.


Section 2.05          Cooperation
by Holders.  Copano shall have no
obligation to include in the Shelf Registration Statement units of a Holder or
in a Underwritten Offering pursuant to Section 2.02 units of a Selling
Holder who has failed to timely furnish such information that, in the opinion
of counsel to Copano, is reasonably required in order for the registration
statement or prospectus supplement, as applicable, to comply with the
Securities Act.


Section 2.06          Restrictions
on Public Sale by Holders of Registrable Securities.  Each Holder of Registrable Securities who is
included in the Shelf Registration Statement agrees not to effect any public
sale or distribution of the Registrable Securities during the 30 calendar day
period following completion of a public offering of equity securities by
Copano; provided, however, that the duration of the
foregoing restrictions shall be no longer than the duration of the shortest
restriction generally imposed by the underwriters on the officers or directors
or any other unitholder of Copano on whom a restriction is imposed and provided
further that such Selling Holder owns more than five million dollars
($5,000,000) of the Purchased Units.


Section 2.07          Expenses.


(a)           Certain
Definitions.  “Registration
Expenses” means all expenses incident to Copano’s performance under or
compliance with this Agreement to effect the registration of Registrable
Securities the Shelf Registration Statement pursuant to Section 2.01,
an Underwritten


9





















Offering pursuant to Section 2.02 or Section 2.03,
and the disposition of such securities, including, without limitation, all
registration, filing, securities exchange listing and The Nasdaq National Market
fees, all registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws, fees of the National Association of
Securities Dealers, Inc., transfer taxes and fees of transfer agents and
registrars, all word processing, duplicating and printing expenses, the fees
and disbursements of counsel and independent public accountants for Copano,
including the expenses of any special audits or “cold comfort” letters required
by or incident to such performance and compliance.  Except as otherwise provided in Section 2.08
hereof, Copano shall not be responsible for legal fees incurred by Holders in
connection with the exercise of such Holders’ rights hereunder.  In addition, Copano shall not be responsible
for any “Selling Expenses,” which means all underwriting fees, discounts
and selling commissions allocable to the sale of the Registrable Securities.


(b)           Expenses.  Copano will pay all reasonable Registration
Expenses as determined in good faith, including, in the case of an Underwritten
Offering, whether or not any sale is made pursuant to such Underwritten
Offering. Each Selling Holder shall pay all Selling Expenses in connection with
any sale of its Registrable Securities hereunder.


Section 2.08          Indemnification.


(a)           By
Copano.  In the event of a
registration of any Registrable Securities under the Securities Act pursuant to
this Agreement, Copano will indemnify and hold harmless each Selling Holder
thereunder, its directors and officers, and each underwriter, pursuant to the
applicable underwriting agreement with such underwriter, of Registrable
Securities thereunder and each Person, if any, who controls such Selling Holder
or underwriter within the meaning of the Securities Act and the Exchange Act,
against any losses, claims, damages, expenses or liabilities (including
reasonable attorneys’ fees and expenses) (collectively, “Losses”), joint
or several, to which such Selling Holder or underwriter or controlling Person
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Shelf Registration Statement or any other registration statement contemplated
by this Agreement, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case
of a prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each such Selling Holder, its directors and
officers, each such underwriter and each such controlling Person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Loss or actions or proceedings; provided, however,
that Copano will not be liable in any such case if and to the extent that any
such Loss arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with
information furnished by such Selling Holder, such underwriter or such
controlling Person in writing specifically for use in the Shelf Registration
Statement or such other registration statement, or prospectus supplement, as
applicable. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Selling Holder or any such
director, officer or controlling Person, and shall survive the transfer of such
securities by such Selling Holder.


10





















(b)           By
Each Selling Holder.  Each Selling
Holder agrees severally and not jointly to indemnify and hold harmless Copano,
its directors and officers, and each Person, if any, who controls Copano within
the meaning of the Securities Act or of the Exchange Act to the same extent as
the foregoing indemnity from Copano 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 the Shelf Registration
Statement or prospectus supplement relating to the Registrable Securities, or
any amendment or supplement thereto; provided,
however, that the liability of
each Selling Holder shall not be greater in amount than the dollar amount of
the proceeds (net of any Selling Expenses) received by such Selling Holder from
the sale of the Registrable Securities giving rise to such indemnification.


(c)           Notice.  Promptly after receipt by an indemnified
party hereunder of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party other than under this Section 2.08.  In any action brought against any indemnified
party, it shall notify the indemnifying party of the commencement thereof.  The indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel reasonably satisfactory to such indemnified party
and, after notice from the indemnifying party to such indemnified party of its
election so to assume and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 2.08
for any legal expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; provided, however, that, (i) if the indemnifying
party has failed to assume the defense and employ counsel or (ii) if the
defendants in any such action include both the indemnified party and the indemnifying
party and counsel to the indemnified party shall have concluded that there may
be reasonable defenses available to the indemnified party that are different
from or additional to those available to the indemnifying party, or if the
interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, then the indemnified party shall have
the right to select a separate counsel and to assume such legal defense and
otherwise to participate in the defense of such action, with the reasonable
expenses and fees of such separate counsel and other reasonable expenses
related to such participation to be reimbursed by the indemnifying party as
incurred.  Notwithstanding any other
provision of this Agreement, no indemnified party shall settle any action
brought against it with respect to which it is entitled to indemnification
hereunder without the consent of the indemnifying party, unless the settlement
thereof imposes no liability or obligation on, and includes a complete and
unconditional release from all liability of, the indemnifying party.


(d)           Contribution.  If the indemnification provided for in this Section 2.08
is held by a court or government agency of competent jurisdiction to be
unavailable to any indemnified party or is insufficient to hold them harmless
in respect of any Losses, then each such indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Loss in such proportion
as is appropriate to reflect the relative fault of the indemnifying party on
the one hand and of such indemnified party on the other in connection with the
statements or omissions which resulted in such Losses, as well as any other relevant
equitable considerations; provided,
however, that in no event shall


11





















such Selling Holder be required to contribute an aggregate amount in
excess of the dollar amount of proceeds (net of Selling Expenses) received by
such Selling Holder from the sale of Registrable Securities giving rise to such
indemnification.  The relative fault of
the indemnifying party on the one hand and the indemnified party on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact has been made by, or relates to, information supplied
by such party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.  The parties hereto agree that
it would not be just and equitable if contributions pursuant to this paragraph
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to herein.  The amount paid by an
indemnified party as a result of the Losses referred to in the first sentence
of this paragraph shall be deemed to include any legal and other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any Loss which is the subject of this paragraph. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who is not
guilty of such fraudulent misrepresentation.


(e)           Other
Indemnification.  The provisions of
this Section 2.08 shall be in addition to any other rights to
indemnification or contribution which an indemnified party may have pursuant to
law, equity, contract or otherwise.


Section 2.09          Rule 144
Reporting.  With a view to making
available the benefits of certain rules and regulations of the Commission that
may permit the sale of the Registrable Securities to the public without
registration, Copano agrees to use its commercially reasonable efforts to:


(a)           Make
and keep public information regarding Copano available, as those terms are
understood and defined in Rule 144 of the Securities Act, at all times
from and after the date hereof;


(b)           File
with the Commission in a timely manner all reports and other documents required
of Copano under the Securities Act and the Exchange Act at all times from and
after the date hereof; and


(c)           So
long as a Holder owns any Registrable Securities, furnish to such Holder
forthwith upon request a copy of the most recent annual or quarterly report of
Copano, and such other reports and documents so filed as such Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.


Section 2.10          Transfer
or Assignment of Registration Rights. 
The rights to cause Copano to register Registrable Securities granted to
the Purchasers by Copano under this Article II may be transferred or
assigned by any Purchaser to one or more transferee(s) or assignee(s) of such
Registrable Securities; provided,
however, that (a) unless
such transferee is an Affiliate of such Purchaser, each such transferee or
assignee holds Registrable Securities representing at least $5 million of the
Purchased Units sold pursuant to the terms of the Purchase Agreement,
(b) Copano is given written notice prior to any said transfer or
assignment, stating


12





















the name and address of each such transferee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and (c) each such transferee assumes in writing responsibility
for its portion of the obligations of such Purchaser under this Agreement.


Section 2.11          Limitation
on Subsequent Registration Rights. 
From and after the date hereof, Copano shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any current or future holder of any
securities of Copano that would allow such current or future holder to require
Copano to include securities in any registration statement filed by Copano on a
basis that is superior in any way to the piggyback rights granted to Purchaser
hereunder.


Section 2.12          Lock-Up.  Notwithstanding anything to the contrary in
this Agreement, Purchaser agrees not to sell any of the Purchased Units prior
to the date that is 90 days after the Closing Date.


ARTICLE III

MISCELLANEOUS


Section 3.01          Communications.  All notices and other communications provided
for or permitted hereunder shall be made in writing by facsimile, courier
service or personal delivery:


(a)           if
to Purchaser, to the address set forth under that Purchaser’s signature block
in accordance with the provisions of this Section 3.01,


(b)           if
to a transferee of Purchaser, to such Holder at the address provided pursuant
to Section 2.10 above, and


(c)           if
to Copano, at 2727 Allen Parkway, Suite 1200, Houston, Texas 77019, notice of
which is given in accordance with the provisions of this Section 3.01.


All such notices and
communications shall be deemed to have been received at the time delivered by
hand, if personally delivered; when receipt acknowledged, if sent via facsimile
or sent via Internet electronic mail; and when actually received, if sent by
any other means.


Section 3.02          Successor
and Assigns.  This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, including subsequent Holders of Registrable Securities to the
extent permitted herein.


Section 3.03          Assignment
of Rights.  All or any portion of the
rights and obligations of any Purchaser under this Agreement may be transferred
or assigned by such Purchaser in accordance with Section 2.10
hereof.


Section 3.04          Aggregation
of Purchased Units.  All Purchased
Units held or acquired by Persons who are Affiliates of one another shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.


Section 3.05          Recapitalization,
Exchanges, Etc. Affecting the Common Units. 
The provisions of this Agreement shall apply to the full extent set
forth herein with respect to any and


13





















all units of Copano or any successor or assign of Copano (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for or in substitution of, the Registrable Securities,
and shall be appropriately adjusted for combinations, recapitalizations and the
like occurring after the date of this Agreement.


Section 3.06          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 such Person, in addition to
and without limiting any other remedy or right it may have, will have the right
to 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 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 Person from pursuing any other rights and remedies at law or in equity
which such Person may have.


Section 3.07          Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one and the same Agreement.


Section 3.08          Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


Section 3.09          Governing
Law.  The laws of the State of Delaware
shall govern this Agreement without regard to principles of conflict of laws.


Section 3.10          Severability
of Provisions.  Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.


Section 3.11          Entire
Agreement.  This Agreement is
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.  There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the rights granted by Copano set forth herein.  This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.


Section 3.12          Amendment.  This Agreement may be amended only by means
of a written amendment signed by Copano and the Holders of a majority of the
then outstanding Registrable Securities; provided,
however, that no such amendment
shall materially and adversely affect the rights of any Holder hereunder
without the consent of such Holder.


Section 3.13          No
Presumption.  If any claim is made by
a party relating to any conflict, omission, or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall


14





















be implied by virtue of the fact that this Agreement was prepared by or
at the request of a particular party or its counsel.


15





















IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written above.


	
   

  	
  COPANO ENERGY, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John
  R. Eckel, Jr.

  
	
   

  	
   

  	
  Title:

  	
  Chairman
  of the Board and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KAYNE
  ANDERSON MLP

  INVESTMENT COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Kevin
  McCarthy

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer and President

  
	
   

  	
   

  	
  Address:

  	
  1800
  Avenue of the Stars,

  
	
   

  	
   

  	
   

  	
  2nd
  Floor

  
	
   

  	
   

  	
   

  	
  Los
  Angeles, California 90067

  
	
   

  	
   

  	
  Attention:
  

  	
  David
  Shladovsky, Esq.

  
	
   

  	
   

  	
  Facsimile:
  

  	
  (310)
  284-6490

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RCH ENERGY MLP FUND LP

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  RCH Energy MLP Fund GP,
  LP,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  RR
  Advisors, LLC, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Robert
  Raymond, its sole member

  



 


16





















 


	
   

  	
  RCH ENERGY MLP FUND-A LP

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  RCH Energy MLP Fund GP,
  LP,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  RR Advisors, LLC,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Robert
  Raymond, its sole member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TORTOISE
  ENERGY

  INFRASTRUCTURE CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  David
  J. Schulte

  
	
   

  	
   

  	
  Title:
  

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TORTOISE
  ENERGY CAPITAL

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  David
  J. Schulte

  
	
   

  	
   

  	
  Title:
  

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ENERGY
  INCOME AND GROWTH

  FUND

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


17





















 


	
   

  	
  FIDUCIARY/CLAYMORE
  MLP

  OPPORTUNITY FUND

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GOLDMAN, SACHS & CO.

  On behalf of Principal Strategies Group

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALERIAN
  OPPORTUNITY PARTNERS

  LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALERIAN CAPITAL PARTNERS LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STROME MLP FUND, L.P.

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  Strome Investment
  Management, L.P.,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Jeffrey
  Lambert

  
	
   

  	
   

  	
  Title:
  

  	
  Chief
  Operating Officer

  



 


18





















 


	
   

  	
  STROME ALPHA, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Strome Investment
  Management, L.P.,

  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Jeffrey
  Lambert

  
	
   

  	
   

  	
  Title:
  

  	
  Chief
  Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STROME FAMILY FOUNDATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey
  Lambert

  
	
   

  	
   

  	
  Title:

  	
  Treasurer
  and Secretary

  



 


19