LIMITED LIABILITY COMPANY AGREEMENT OF BREITBURN GP, LLC
Exhibit
3.2
Execution
Version
FOURTH
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
TABLE
OF CONTENTS
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Page
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DEFINITIONS
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1
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Section
1.1
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Definitions
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1
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Section
1.2
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Construction
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4
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ARTICLE
II
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ORGANIZATION
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4
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Section
2.1
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Formation
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4
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Section
2.2
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Name
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4
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Section
2.3
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Registered
Office; Registered Agent; Other Offices
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5
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Section
2.4
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Purpose
and Business
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5
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Section
2.5
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Powers
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5
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Section
2.6
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Term
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5
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Section
2.7
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Title
to Company Assets
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5
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ARTICLE
III
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RIGHTS
OF THE SOLE MEMBER
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5
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Section
3.1
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Distributions
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5
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ARTICLE
IV
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CAPITAL
CONTRIBUTIONS; PREEMPTIVE RIGHTS; NATURE OF MEMBERSHIP
INTEREST
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6
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Section
4.1
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Capital
Contributions
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6
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Section
4.2
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No
Preemptive Rights
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6
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Section
4.3
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Fully
Paid and Non-Assessable Nature of Membership Interests
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6
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ARTICLE
V
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MANAGEMENT
AND OPERATION OF BUSINESS
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6
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Section
5.1
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Establishment
of the Board Number; Election; Tenure
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6
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Section
5.2
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The
Board; Delegation of Authority and Duties
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8
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Section
5.3
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Meetings
of the Board and Committees
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9
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Section
5.4
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Voting
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10
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Section
5.5
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Responsibility
and Authority of the Board
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10
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Section
5.6
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Devotion
of Time
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10
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Section
5.7
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Certificate
of Formation
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10
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Section
5.8
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Benefit
Plans
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10
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Section
5.9
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Indemnification
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11
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Section
5.10
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Liability
of Indemnitees
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12
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ARTICLE
VI
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OFFICERS
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12
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Section
6.1
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Officers
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12
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Section
6.2
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Compensation
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14
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ARTICLE
VII
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BOOKS,
RECORDS, ACCOUNTING AND REPORTS
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14
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Section
7.1
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Records
and Accounting
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14
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Section
7.2
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Reports
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14
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Section
7.3
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Bank
Accounts
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14
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ARTICLE
VIII
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DISSOLUTION
AND LIQUIDATION
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15
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Section
8.1
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Dissolution
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15
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TABLE
OF CONTENTS
(continuing)
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Page
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Section
8.2
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Effect
of Dissolution
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15
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Section
8.3
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Application
of Proceeds
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15
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ARTICLE
IX
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GENERAL
PROVISIONS
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16
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Section
9.1
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Addresses
and Notices
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16
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Section
9.2
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Creditors
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16
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Section
9.3
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Applicable
Law
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16
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Section
9.4
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Invalidity
of Provisions
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16
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Section
9.5
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Amendment
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16
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Section
9.6
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Effectiveness
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16
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ii
FOURTH
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
THIS FOURTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of BREITBURN GP,
LLC (the “Company”),
dated as of April 5, 2010, is entered into by BreitBurn Energy Partners L.P., a
Delaware limited partnership (the “MLP”), as sole member of the
Company (the “Sole
Member”).
RECITALS
WHEREAS, the Company is a
Delaware limited liability company that was formed under the Delaware Limited
Liability Company Act, 6 Del. C. § 18-101,
et seq., and is
currently governed by the Third Amended and Restated Limited Liability Company
Agreement of the Company, dated as of December 29, 2009 (the “Third Amended Agreement”),
entered into by the MLP;
WHEREAS, pursuant to the
Settlement Agreement (as defined herein), the Sole Member now desires to amend
and restate the Third Amended Agreement and to execute this Fourth Amended and
Restated Limited Liability Company Agreement in order to effect the matters set
forth herein.
NOW THEREFORE, in
consideration of the covenants, conditions and agreements contained herein, the
party hereto hereby amends and restates the Third Amended Agreement in its
entirety as follows:
AGREEMENT
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions. The
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, applied to the terms used in this
Agreement.
“Act” means the Delaware
Limited Liability Company Act, 6 Del. C. § 18-101, et seq., as amended,
supplemented or restated from time to time, and any successor to such
statute.
“Affiliate” means, with
respect to any Person, any other Person that directly or indirectly through one
or more intermediaries controls, is controlled by or is under common control
with, the Person in question. As used herein, the term “control”
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
“Agreement” means this Fourth
Amended and Restated Limited Liability Company Agreement of BreitBurn GP, LLC,
as it may be amended, supplemented or restated from time to
time. This Agreement shall constitute a “limited liability company
agreement” as such term is defined in the Act.
Fourth
Amended and Restated Limited Liability Company Agreement
“Board” shall have the meaning
assigned to such term in Section
5.1.
“BreitBurn Energy” means
BreitBurn Energy Company L.P., a Delaware limited partnership.
“BreitBurn Management” means
BreitBurn Management Company, LLC, a Delaware limited liability
company.
“Capital Contribution” means
any cash, cash equivalents or the value of Contributed Property contributed to
the Company pursuant to this Agreement.
“Certificate of Formation”
means the Certificate of Formation of the Company filed with the Secretary of
State of the State of Delaware as referenced in Section 2.1, as such
Certificate of Formation may be amended, supplemented or restated from time to
time.
“Company” means BreitBurn GP,
LLC, a Delaware limited liability company, and any successors
thereto.
“Company Group” means the
Company and any Subsidiary of the Company, treated as a single consolidated
entity.
“Contributed Property” means
each property or other asset, in such form as may be permitted by the Act, but
excluding cash, contributed to the Company.
“Directors” shall have the
meaning assigned to such term in Section
5.1.
“Effective Time” shall have
the meaning assigned to such term in the Settlement Agreement.
“Employment Agreements” shall mean (i)
the Amended and Restated Employment Agreement, dated December 31, 2007 among
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, BreitBurn Management, Pro GP Corp. and the Company, (ii)
the Amended and Restated Employment Agreement, dated December 31, 2007 among
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, BreitBurn Management, Pro GP Corp. and the Company, (iii)
the Employment Agreement, dated July 7, 2006, between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
BreitBurn Energy, as amended by the Amendment to Employment Agreement, dated
October 10, 2006, among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, BreitBurn Management, BreitBurn Energy
and the Company, (iv) the Employment Agreement, dated December 26, 2007, among
▇▇▇▇ ▇. ▇▇▇▇▇, BreitBurn Management, Pro GP Corp. and the Company, and (v) the
Employment Agreement dated January 29, 2008, among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, BreitBurn
Management, Pro GP Corp and the Company, as each such agreement may be amended,
supplemented or restated from time to time.
“Group Member” means a member
of the Company Group.
“Indemnitee” means (a) the
Sole Member; (b) any Person who is or was an Affiliate, member, partner,
director, officer, employee, agent or trustee of the Company, any Group Member,
the MLP, or any of their respective Affiliates; and (c) any Person who is or was
serving at the request of the Sole Member as a member, partner, director,
officer, employee, partner, agent, fiduciary or trustee of another Person, in
each case, acting in such capacity; provided, however, that a Person
shall not be an Indemnitee by reason of providing, on a fee-for-services basis,
trustee, fiduciary or custodial services.
Fourth
Amended and Restated Limited Liability Company Agreement
2
“Independent Director” shall
mean Directors meeting the independence and experience requirements as set forth
most recently by the National Securities Exchange.
“Limited Partner” has the
meaning assigned to such term in the MLP Agreement.
“Membership Interest” means
all of the Sole Member’s rights and interest in the Company, all as provided in
the Certificate of Formation, this Agreement and the Act, including, without
limitation, the Sole Member’s interest in the capital, income, gain, deductions,
losses and credits of the Company.
“MLP” shall have the meaning
assigned to such term in the introductory paragraph.
“MLP Agreement” means the
First Amended and Restated Agreement of Limited Partnership of BreitBurn Energy
Partners L.P., as it may be amended, supplemented or restated from time to
time.
“National Securities Exchange”
means the principal national securities exchange on which common units of the
MLP trade.
“Operating GP” means BreitBurn
Operating GP, LLC, a Delaware limited liability company.
“Operating LP” means BreitBurn
Operating L.P., a Delaware limited partnership.
“Person” means an individual
or a corporation, limited liability company, partnership, joint venture, trust,
unincorporated organization, association, government agency or political
subdivision thereof or other entity.
“Quicksilver” means
Quicksilver Resources Inc.
“Settlement Agreement” means
the Settlement Agreement, dated as of April 5, 2010, among the MLP, the Company,
Quicksilver, Provident Energy Trust, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇.
“Sole Member” means the MLP
and its successors and permitted assigns as sole member of the
Company.
“Subsidiary” means, with
respect to any Person, (a) a corporation of which more than 50% of the voting
power of shares entitled (without regard to the occurrence of any contingency)
to vote in the election of directors or other governing body of such corporation
is owned, directly or indirectly, at the date of determination, by such Person,
by one or more Subsidiaries of such Person or a combination thereof; (b) a
partnership (whether general or limited) or limited liability company in which
such Person or a Subsidiary of such Person is, at the date of determination, a
general or limited partner of such partnership or member of such limited
liability company, but only if more than 50% of the partnership interests of
such partnership or limited liability company interests of such limited
liability company (considering all of the partnership interests or limited
liability company interests as a single class) is owned, directly or indirectly,
at the date of determination, by such Person, by one or more Subsidiaries of
such Person, or a combination thereof; or (c) any other Person (other than a
corporation or a partnership or a limited liability company) in which such
Person, one or more Subsidiaries of such Person, or a combination thereof,
directly or indirectly, at the date of determination, has (i) at least a
majority ownership interest or (ii) the power to elect or direct the election of
a majority of the directors or other governing body of such Person.
Fourth
Amended and Restated Limited Liability Company Agreement
▇
“▇.▇. ▇▇▇▇” ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Generally Accepted Accounting Principles consistently
applied.
Section
1.2 Construction.
(a) Unless
the context requires otherwise: (i) capitalized terms used herein but
not otherwise defined shall have the meanings assigned to such terms in the MLP
Agreement; (ii) any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa; (iii)
references to Articles and Sections refer to Articles and Sections of this
Agreement; and (iv) the term “include” or “includes” means includes, without
limitation, and “including” means including, without limitation.
(b) A
reference to any Person includes such Person’s successors and permitted
assigns.
ARTICLE
II
ORGANIZATION
Section
2.1 Formation. On
March 23, 2006, the original members of the Company formed the Company as a
limited liability company pursuant to the provisions of the Act by virtue of the
filing of the Certificate of Formation with the Secretary of State of the State
of Delaware.
Section
2.2 Name. The name of
the Company shall be “BreitBurn GP, LLC”. The Company’s business may
be conducted under any other name or names deemed necessary or appropriate by
the Board in its sole discretion, including, if consented to by the Board, the
name of the MLP. The words “Limited Liability Company,” “L.L.C.” or
“LLC” or similar words or letters shall be included in the Company’s name where
necessary for the purpose of complying with the laws of any jurisdiction that so
requires. The Board in its discretion may change the name of the
Company at any time and from time to time and shall notify the Sole Member of
such change in the next regular communication to the Sole Member.
Fourth
Amended and Restated Limited Liability Company Agreement
4
Section
2.3 Registered Office; Registered Agent;
Other Offices. Unless and until changed by the Board, the
registered office of the Company in the State of Delaware shall be located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the registered agent for
service of process on the Company in the State of Delaware at such registered
office shall be The Corporation Trust Company. The Company may
maintain offices at such other place or places within or outside the State of
Delaware as the Board deems necessary or appropriate.
Section
2.4 Purpose and
Business. The purpose and nature of the business to be
conducted by the Company shall be to (a) serve as general partner of the MLP
and, in connection therewith, to exercise all rights conferred upon the Company
as the general partner of the MLP pursuant to the MLP Agreement, or otherwise;
(b) engage directly in, or enter into or form any corporation, partnership,
joint venture, limited liability company or other arrangement to engage
indirectly in, any business activity that the Company is permitted to engage in,
and in connection therewith, to exercise all of the rights and powers conferred
upon the Company pursuant to the agreements relating to such business activity;
(c) engage directly in, or enter into or form any corporation, partnership,
joint venture, limited liability company or other arrangement to engage
indirectly in, any business activity that is approved by the Board and that
lawfully may be conducted by a limited liability company organized pursuant to
the Act and, in connection therewith, to exercise all of the rights and powers
conferred upon the Company pursuant to the agreements relating to such business
activity; and (d) do anything necessary or appropriate to the foregoing,
including the making of capital contributions or loans to a Group Member, the
MLP or any Subsidiary of the MLP.
Section
2.5 Powers. The
Company shall be empowered to do any and all acts and things necessary,
appropriate, proper, advisable, incidental to or convenient for the furtherance
and accomplishment of the purposes and business described in Section 2.4 and for
the protection and benefit of the Company.
Section
2.6 Term. The term of
the Company commenced upon the filing of the Certificate of Formation in
accordance with the Act and shall continue in existence in perpetuity or until
the earlier dissolution of the Company in accordance with the provisions of
Article
VIII. The existence of the Company as a separate legal entity
shall continue until the cancellation of the Certificate of Formation as
provided in the Act.
Section
2.7 Title to Company
Assets. Title to Company assets, whether real, personal or
mixed and whether tangible or intangible, shall be deemed to be owned by the
Company as an entity, and the Sole Member shall not have any ownership interest
in such Company assets or any portion thereof.
ARTICLE
III
RIGHTS
OF THE SOLE MEMBER
Section
3.1 Distributions. Distributions
by the Company of cash or other property shall be made to the Sole Member at
such time as the Board deems appropriate, but subject in all cases to the Act
and other applicable law.
Fourth
Amended and Restated Limited Liability Company Agreement
5
ARTICLE
IV
CAPITAL
CONTRIBUTIONS; PREEMPTIVE RIGHTS;
NATURE
OF MEMBERSHIP INTEREST
Section
4.1 Capital
Contributions. The Sole Member shall not be obligated to make
any additional Capital Contributions to the Company.
Section
4.2 No Preemptive
Rights. No Person shall have preemptive, preferential or other
similar rights with respect to (a) additional Capital Contributions; (b)
issuance or sale of any class or series of Membership Interests, whether
unissued, held in the treasury or hereafter created; (c) issuance of any
obligations, evidences of indebtedness or other securities of the Company
convertible into or exchangeable for, or carrying or accompanied by any rights
to receive, purchase or subscribe to, any such Membership Interests; (d)
issuance of any right of subscription to or right to receive, or any warrant or
option for the purchase of, any such Membership Interests; or (e) issuance or
sale of any other securities that may be issued or sold by the
Company.
Section
4.3 Fully Paid and Non-Assessable Nature
of Membership Interests. All Membership Interests issued
pursuant to, and in accordance with, the requirements of this Article IV shall be
fully paid and non-assessable Membership Interests, except as such
non-assessability may be affected by Sections 18-607 and 18-804 of the
Act.
ARTICLE
V
MANAGEMENT
AND OPERATION OF BUSINESS
Section
5.1 Establishment of the
Board Number; Election;
Tenure.
(a) The
number of directors (the “Directors”) constituting the Board of Directors of the
Company (the “Board”) shall be at least five and not more than nine as shall be
established from time to time pursuant to a resolution adopted by a majority of
the Directors.
(b) The
Directors shall be elected by the Limited Partners and shall be nominated in
accordance with the terms of the MLP Agreement. The Board of
Directors shall be divided into three classes, Class I, Class II, and Class
III. The number of Directors in each class shall be the whole number
contained in the quotient arrived at by dividing the authorized number of
Directors by three, and if a fraction is also contained in such quotient, then
if such fraction is one-third, the extra director shall be a member of Class I
and if the fraction is two-thirds, one of the extra directors shall be a member
of Class I and the other shall be a member of Class II. Each Director
shall serve for a term ending as provided herein; provided, however, that the
Directors designated in Section 5.1(d) to
Class I shall serve for an initial term that expires at the annual meeting of
Limited Partners originally intended to be held in 2009, the Directors
designated in Section
5.1(d) to Class II shall serve for an initial term that expires at the
annual meeting of Limited Partners held in 2010, and the Directors designated in
Section 5.1(d)
to Class III shall serve for an initial term that expires at the
annual meeting of Limited Partners held in 2011. At each succeeding
annual meeting of Limited Partners, successors to the class of Directors whose
term expires at that annual meeting shall be elected for a three-year term;
provided, however, because the first annual meeting of the Limited Partners,
which was originally intended to be held in 2009, was postponed as a result of
the litigation addressed in the Settlement Agreement and is now expected to be
held in 2010, (i) at that first annual meeting, it is expected that an election
will be held to elect successors to the Directors whose term was originally
intended to expire in 2009 (i.e., the Class I Directors)
and the Directors whose term was originally intended to expire in 2010 (i.e., the Class II
Directors), and (ii) the Class I Directors to be elected at the first
annual meeting shall be elected for a term that will expire three years after
the year in which the initial annual meeting was originally intended to be held
(i.e., 2012), and the
Class II Directors to be elected at the first annual meeting shall be elected
for a term that will expire three years after the year in which the annual
meeting for their election was originally intended to be held (i.e., 2013).
Fourth
Amended and Restated Limited Liability Company Agreement
6
(c) Each
Director shall hold office for the term for which such Director is elected and
thereafter until such Director’s successor shall have been duly elected and
qualified, or until such Director’s earlier death, resignation or
removal. If the number of Directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
Directors in each class as nearly equal as possible, and any additional Director
of any class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of Directors shorten the
term of any incumbent Director. A Director shall hold office until
the annual meeting of the Limited Partners of the year in which his term expires
and until his successor shall be elected and shall qualify, subject, however, to
death, resignation or removal from office. Any vacancy on the Board
of Directors (including, without limitation, any vacancy caused by an increase
in the number of Directors on the Board of Directors) may only be filled by a
majority of the Directors then in office, even if less than a quorum, or by a
sole remaining Director. Any Director elected to fill a vacancy not
resulting from an increase in the number of Directors shall have the same
remaining term as that of his predecessor. A Director may be removed
only for cause and only upon a vote of the majority of the remaining Directors
then in office.
(d) As
of the date hereof, the Board shall consist of six Directors. The
Directors of the Company as of the date hereof and the Class that each such
Director is a member of is hereby designated as follows:
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▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇.
|
Class
I
|
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Class
I
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Class
II
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Class
II
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
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Class
III
|
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▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
|
Class
III
|
Fourth
Amended and Restated Limited Liability Company Agreement
7
Section
5.2 The Board; Delegation of Authority
and Duties.
(a) Members and
Board. The business and affairs of the Company shall be
managed under the direction of the Board, which shall possess all rights and
powers which are possessed by “managers” under the Act and otherwise by
applicable law, pursuant to Section 18-402 of the Act, subject to the provisions
of this Agreement. The Sole Member hereby consents to the exercise by
the Board of all such powers and rights conferred on it by the Act or otherwise
by applicable law with respect to the management and control of the
Company. To the fullest extent permitted by applicable law, each
Director shall have such rights and duties as are applicable to directors of a
corporation organized under the General Corporation Law of the State of
Delaware.
(b) Delegation by the
Board. The Board shall have the power and authority to
delegate to one or more other Persons the Board’s rights and powers to manage
and control the business and affairs of the Company, including delegating such
rights and powers of the Board to agents and employees of the Company (including
Officers). The Board may authorize any Person (including, without
limitation, the Sole Member, or any Director or Officer) to enter into any
document on behalf of the Company and perform the obligations of the Company
thereunder. Notwithstanding the foregoing, the Board shall not have
the power and authority to delegate any rights or powers customarily requiring
the approval of the directors of a Delaware corporation and no Officer or other
Person shall be authorized or empowered to act on behalf of the Company in any
way beyond the customary rights and powers of an officer of a Delaware
corporation.
(c) Committees.
(i) The
Board may establish committees of the Board and may delegate certain of its
responsibilities to such committees, including a Conflicts Committee, as
contemplated by the MLP Agreement.
(ii) For
so long as the Company serves as the general partner of the MLP, the Board shall
have:
(A) an
audit committee that complies with the then current requirements of the National
Securities Exchange; and
(B) such
other committees as required by the National Securities Exchange.
(d) Chairman of the Board. The Board may elect a
Chairman of the Board (the “Chairman”). The Chairman, if elected,
shall be a member of the Board and shall preside at all meetings of the
Board. The Chairman shall not be an officer of the Company by virtue
of being the Chairman and no officer of the Company shall be elected as Chairman
of the Board. The Chairman may be removed either with or without
cause at any time by the affirmative vote of a majority of the
Board. No removal or resignation as Chairman shall affect such
Chairman’s status as a Director.
Fourth
Amended and Restated Limited Liability Company Agreement
8
Section
5.3 Meetings of the Board and
Committees.
(a) Meetings. The
Board (or any committee of the Board) shall meet at such time and at such place
as the Chairman of the Board (or the chairman of such committee) may
designate. Written notice of all regular meetings of the Board (or
any committee of the Board) must be given to all Directors (or all members of
such committee) at least ten (10) days prior to the regular meeting of the Board
(or such committee). Special meetings of the Board (or any committee
of the Board) shall be held at the request of a majority of the Directors (or a
majority of the members of such committee) upon at least two (2) days (if the
meeting is to be held in person) or twenty-four (24) hours (if the meeting is to
be held telephonically) oral or written notice to the Directors (or the members
of such committee) or upon such shorter notice as may be approved by the
Directors (or the members of such committee). All notices and other
communications to be given to Directors (or members of a committee) shall be
sufficiently given for all purposes hereunder if (i) in writing and delivered by
hand, courier or overnight delivery service or three (3) days after being mailed
by certified or registered mail, return receipt requested, with appropriate
postage prepaid, (ii) when received in the form of a telegram or facsimile, and
directed to the address or facsimile number as such Director (or member) shall
designate by notice to the Company or (iii) when received and acknowledged by
such Director (or member) in the form of an e-mail and directed to the e-mail
address as such Director (or member) shall designate by notice to the
Company. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board (or committee) need be specified
in the notice of such meeting. Any Director (or member of such
committee) may waive the requirement of such notice as to such Director (or such
member).
(b) Conduct of
Meetings. Any meeting of the Board (or any committee of the
Board) may be held in person or by conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
(c) Quorum. Fifty
percent or more of all Directors (or members of a committee of the Board),
present in person or participating in accordance with Section 5.3(b), shall
constitute a quorum for the transaction of business, but if at any meeting of
the Board (or committee) there shall be less than a quorum present, a majority
of the Directors (or members) present may adjourn the meeting without further
notice. The Directors (or members of a committee of the Board)
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of Directors (or members) leaving
less than a quorum; provided, however, that only the acts
of the Directors (or members) meeting the requirements of Section 5.4 shall be
deemed to be acts of the Board (or such committee).
(d) Procedures. To the
extent not inconsistent with this Agreement or the Act, the procedures and
rights governing the Board and its committees shall be as provided to the board
of directors and its committees of a corporation under the General Corporation
Law of the State of Delaware.
(e) Chairman of the Board at
Meetings. The Chairman shall preside at all meetings of the
Board. The Directors also may elect a vice-chairman to act in the
place of the Chairman upon his absence or inability to act.
Fourth
Amended and Restated Limited Liability Company Agreement
9
Section
5.4 Voting. Except as
otherwise provided in this Agreement, the effectiveness of any vote, consent or
other action of the Board (or any committee of the Board) in respect of any
matter shall require either (i) the presence of a quorum and the affirmative
vote of at least a majority of the Directors (or members of such committee)
present or (ii) the unanimous written consent (in lieu of meeting) of the
Directors (or members of such committee) who are then in office. Any
Director (or member of such committee) may vote in person on any matter that is
to be voted on by the Board (or such committee) at a meeting
thereof.
Section
5.5 Responsibility and Authority of the
Board. Except as otherwise specifically provided in this
Agreement or the MLP Agreement, the authority and functions of the Board, on the
one hand, and the Officers, on the other hand, shall be identical to the
authority and functions of the board of directors and officers, respectively, of
a corporation organized under the General Corporation Law of the State of
Delaware. The Officers shall be vested with such powers and duties as
are set forth in Section 6.1 hereof
and as are specified by the Board from time to time. Accordingly,
except as otherwise specifically provided in this Agreement, the day-to-day
activities of the Company shall be conducted on the Company’s behalf by the
Officers who shall be agents of the Company.
In
addition to the powers and authorities expressly conferred on the Board by this
Agreement, the Board may exercise all such powers of the Company and do all such
acts and things as are not restricted by this Agreement, the MLP Agreement, the Act
or applicable law.
Section
5.6 Devotion of
Time. The Directors shall not be obligated and shall not be
expected to devote all of their time or business efforts to the affairs of the
Company.
Section
5.7 Certificate of
Formation. The Board shall use all reasonable efforts to cause
to be filed such additional certificates or documents as may be determined by
the Board to be necessary or appropriate for the formation, continuation,
qualification and operation of a limited liability company in the State of
Delaware or any other state in which the Company may elect to do business or own
property. To the extent that such action is determined by the Board
to be necessary or appropriate, the Board or its designee or the Sole Member
shall file amendments to and restatements of the Certificate of Formation and do
all things to maintain the Company as a limited liability company under the laws
of the State of Delaware or of any other state in which the Company may elect to
do business or own property.
Section
5.8 Benefit Plans. The
Board may propose and adopt on behalf of the Company employee benefit plans,
employee programs and employee practices, or cause the Company to issue Company
securities, in connection with or pursuant to any employee benefit plan,
employee program or employee practice maintained or sponsored by any Group
Member or any Affiliate thereof, in each case for the benefit of employees of
the Company, any Group Member or any Affiliate thereof, or any of them, in
respect of services performed, directly or indirectly, for the benefit of any
Group Member.
Fourth
Amended and Restated Limited Liability Company Agreement
10
Section
5.9 Indemnification.
(a) To
the fullest extent permitted by law but subject to the limitations expressly
provided in this Agreement, all Indemnitees shall be indemnified and held
harmless by the Company 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 Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, by reason of
its status as an Indemnitee; provided, however, that the Indemnitee
shall not be indemnified and held harmless if there has been a final and
non-appealable judgment entered by a court of competent jurisdiction determining
that, in respect of the matter for which the Indemnitee is seeking
indemnification pursuant to this Section 5.9, the
Indemnitee acted in bad faith or engaged in fraud, willful misconduct, or in the
case of a criminal matter, acted with knowledge that the Indemnitee’s conduct
was unlawful. Any indemnification pursuant to this Section 5.9 shall be
made only out of the assets of the Company, it being agreed that the Sole Member
shall not be personally liable for such indemnification and shall have no
obligation to contribute or loan any monies or property to the Company to enable
it to effectuate such indemnification.
(b) To
the fullest extent permitted by law, expenses (including legal fees and
expenses) incurred by an Indemnitee who is indemnified pursuant to Section 5.9(a) in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Company prior to a determination that the Indemnitee is
not entitled to be indemnified upon receipt by the Company of an undertaking by
or on behalf of the Indemnitee to repay such amount if it shall be determined
that the Indemnitee is not entitled to be indemnified as authorized in this
Section
5.9.
(c) The
indemnification provided by this Section 5.9 shall be
in addition to any other rights to which an Indemnitee may be entitled under any
agreement, as a matter of law or otherwise, both as to actions in the
Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity
(including any capacity under the MLP Agreement), and shall continue as to an
Indemnitee who has ceased to serve in such capacity and shall inure to the
benefit of the heirs, successors, assigns and administrators of such
Indemnitee.
(d) The
Company may purchase and maintain (or reimburse the Sole Member and its
Affiliates and such other Persons as the Sole Member shall determine for the
cost of) insurance, on behalf of the Sole Member and its Affiliates and such
other Persons as the Sole Member shall determine, against any liability that may
be asserted against or expense that may be incurred by, such Person in
connection with the Company’s activities or such Person’s activities on behalf
of the Company, regardless of whether the Company would have the power to
indemnify such Person against such liability under the provisions of this
Agreement.
(e) For
purposes of this Section 5.9, the
Company shall be deemed to have requested an Indemnitee to serve as fiduciary of
an employee benefit plan whenever the performance by it of its duties to the
Company also imposes duties on, or otherwise involves services by, it to the
plan or participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute “fines” within the meaning of Section 5.9(a); and
action taken or omitted by it with respect to any employee benefit plan in the
performance of its duties for a purpose reasonably believed by it to be in the
interest of the participants and beneficiaries of the plan shall be deemed to be
for a purpose that is in the best interests of the Company.
Fourth
Amended and Restated Limited Liability Company Agreement
11
(f) In
no event may an Indemnitee subject the Sole Member to personal liability by
reason of the indemnification provisions set forth in this
Agreement.
(g) An
Indemnitee shall not be denied indemnification in whole or in part under this
Section 5.9
because the Indemnitee had an interest in the transaction with respect to which
the indemnification applies if the transaction was otherwise permitted by the
terms of this Agreement.
(h) The
provisions of this Section 5.9 are for
the benefit of the Indemnitees, their heirs, successors, assigns and
administrators and shall not be deemed to create any rights for the benefit of
any other Persons.
(i) No
amendment, modification or repeal of this Section 5.9 shall in
any manner terminate, reduce or impair the right of any past, present or future
Indemnitee to be indemnified by the Company, nor the obligations of the Company
to indemnify any such Indemnitee under and in accordance with the provisions of
this Section
5.9 as in effect immediately prior to such amendment, modification or
repeal with respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification or repeal, regardless of
when such claims may arise or be asserted.
Section
5.10 Liability of
Indemnitees.
(a) Notwithstanding
anything to the contrary set forth in this Agreement or the MLP Agreement, no
Indemnitee shall be liable for monetary damages to the Company, the Sole Member
or any other Persons who are bound by this Agreement, for losses sustained or
liabilities incurred as a result of any act or omission if such Indemnitee acted
in good faith.
(b) Any
amendment, modification or repeal of this Section 5.10 shall be
prospective only and shall not in any way affect the limitations on the
liability of the Indemnitees under this Section 5.10 as in
effect immediately prior to such amendment, modification or repeal with respect
to claims arising from or relating to matters occurring, in whole or in part,
prior to such amendment, modification or repeal, regardless of when such claims
may arise or be asserted.
ARTICLE
VI
OFFICERS
Section
6.1 Officers.
(a) Generally. The
Board shall appoint agents of the Company, referred to as “Officers” of the
Company as described in this Section 6.1, who
shall be responsible for the day-to-day business affairs of the Company, subject
to the overall direction and control of the Board. Unless provided
otherwise by the Board, the Officers shall have the titles, power, authority and
duties described below in this Section
6.1.
Fourth
Amended and Restated Limited Liability Company Agreement
12
(b) Titles and
Number. The Officers shall be the Chief Executive Officer, the
President, any and all Vice Presidents, the Chief Financial Officer, the
Secretary and any other Officers appointed pursuant to this Section
6.1. Any person may hold two or more offices.
(i) Chief Executive
Officer. The Chief Executive Officer shall have general
supervision, direction and control of the business and the Officers of the
Company. The Chief Executive Officer also shall have such other
powers and duties as may be assigned by the Board or as may be prescribed by
this Agreement.
(ii) President. The
President shall have such powers and perform such duties as may be assigned by
the Board or by the Chief Executive Officer. In the absence,
disability or non-existence of the President, his or her duties shall be
performed by such Vice Presidents as the Chief Executive Officer or the Board
may designate. The President shall report to the Chief Executive
Officer.
(iii) Vice
Presidents. In the absence, disability or non-existence of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board or, if not ranked, a Vice President designated by the Board, shall perform
all the duties of the President and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board, the Chief
Executive Officer or the President. The Board may designate one or
more Vice Presidents as Executive Vice President, Senior Vice President or as
Vice President for particular areas of responsibility.
(iv) Chief Financial
Officer. The Chief Financial Officer shall have general
supervision over the financial affairs of the Company, including but not limited
to, oversight of capital formation and financial transactions associated
therewith, oversight of capital allocation, establishment of corporate budgets,
oversight of corporate accounting procedures, maintenance of adequate and
correct books and records of accounts of the properties and business
transactions of the Company and oversight of investor relations. The
Chief Financial Officer shall report to the Chief Executive
Officer.
(v) Secretary. The
Secretary shall keep or cause to be kept, at the principal executive office of
the Company or such other place as the Board may direct, a book of minutes of
all meetings and actions of the Board and committees. The Secretary
shall cause to be kept such books and records as the affairs of the business may
require and the Board, the Chief Executive Officer or the President may
require. The Secretary shall attend to such correspondence and such
other duties as may be incident to the office of the Secretary. The
Secretary shall give, or cause to be given, notice of all meetings of the Board
required to be given by law or by this Agreement. The Secretary shall
keep the seal of the Company, if one be adopted, in safe custody and shall have
such other powers and perform such other duties as may be assigned by the Board
or as may be prescribed by this Agreement.
Fourth
Amended and Restated Limited Liability Company Agreement
13
(c) Other Officers and
Agents. The Board may appoint such other Officers and agents
as may from time to time appear to be necessary or advisable in the conduct of
the affairs of the Company, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board.
(d) Appointment and Term of
Office. The Officers shall be appointed by the Board at such
time and for such terms as the Board shall determine. Any Officer may
be removed, with or without cause, only by the Board. Vacancies in
any office may be filled only by the Board.
(e) Powers of
Attorney. The Board may ▇▇▇▇▇ ▇▇▇▇▇▇ of attorney or other
authority as appropriate to establish and evidence the authority of the Officers
and other Persons.
(f) Officers’ Delegation of
Authority. Unless otherwise provided by resolution of the
Board, no Officer shall have the power or authority to delegate to any Person
such Officer’s rights and powers as an Officer to manage the business and
affairs of the Company.
Section
6.2 Compensation. The
Officers shall receive such compensation for their services (a) as is provided
pursuant to their respective Employment Agreements, or (b) in the absence of
such an Employment Agreement, as specified by the Board or a compensation
committee appointed by the Board pursuant to Section
5.2(c).
ARTICLE
VII
BOOKS,
RECORDS, ACCOUNTING AND REPORTS
Section
7.1 Records and
Accounting. The Board shall keep or cause to be kept at the
principal office of the Company appropriate books and records with respect to
the Company’s business. The books of account of the Company shall be
(i) maintained on the basis of a fiscal year that is the calendar year and (ii)
maintained on an accrual basis in accordance with U.S. GAAP, consistently
applied.
Section
7.2 Reports. With
respect to each fiscal year, the Board shall prepare, or cause to be prepared,
and deliver, or cause to be delivered, to the Sole Member:
(a) Within
120 Days after the end of such fiscal year, a Company balance sheet, profit and
loss statement, and statement of cash flows for such year as of the end of such
year.
(b) Such
federal, state and local income tax returns and such other accounting, tax
information and schedules as shall be necessary for the preparation by the Sole
Member on or before June 15 following the end of each calendar year of its
income tax return with respect to such year.
Section
7.3 Bank
Accounts. Funds of the Company shall be deposited in such
banks or other depositories as shall be designated from time to time by the
Board. All withdrawals from any such depository shall be made only as
authorized by the Board and shall be made only by check, wire transfer, debit
memorandum or other written instruction.
Fourth
Amended and Restated Limited Liability Company Agreement
14
ARTICLE
VIII
DISSOLUTION
AND LIQUIDATION
Section
8.1 Dissolution.
(a) The
Company shall be of perpetual duration; however, the Company shall dissolve, and
its affairs shall be wound up, upon:
(i) an
election to dissolve the Company by the Board;
(ii) the
entry of a decree of judicial dissolution of the Company pursuant to the
provisions of the Act;
(iii) a
merger or consolidation under the Act where the Company is not the surviving
entity in such merger or consolidation; or
(iv) at
any time there are no members of the Company, unless the Company is continued
without dissolution in accordance with the Act.
(b) No
other event shall cause a dissolution of the Company.
Section
8.2 Effect of
Dissolution. Except as otherwise provided in this Agreement,
upon the dissolution of the Company, the Board shall take such actions as may be
required pursuant to the Act and shall proceed to wind up, liquidate and
terminate the business and affairs of the Company. In connection with
such winding up, the Board shall have the authority to liquidate and reduce to
cash (to the extent necessary or appropriate) the assets of the Company as
promptly as is consistent with obtaining fair value therefor, to apply and
distribute the proceeds of such liquidation and any remaining assets in
accordance with the provisions of Section 8.3(b), and
to do any and all acts and things authorized by, and in accordance with, the Act
and other applicable laws for the purpose of winding up and
liquidation.
Section
8.3 Application of
Proceeds. Upon dissolution and liquidation of the Company, the
assets of the Company shall be applied and distributed in the following order of
priority:
(a) To
the satisfaction of debts and liabilities of the Company (including members and
managers who are creditors of the Company to the extent permitted by applicable
law), to the expenses of liquidation and to the setting up of such reserves as
the Person required or authorized by law to wind up the Company's affairs may
reasonably deem necessary or appropriate for any disputed, contingent or
unforeseen liabilities or obligations of the Company; provided,
however, that any such reserves shall be paid over by such
Person to an escrow agent appointed by the Board, to be held by such agent or
its successor for such period as such Person shall deem advisable but in all
cases subject to the Act for the purpose of applying such reserves to the
satisfaction of such liabilities or obligations and, at the expiration of such
period, the balance of such reserves, if any, shall be distributed as
hereinafter provided.
(b) The
remainder to the Sole Member.
Fourth
Amended and Restated Limited Liability Company Agreement
15
ARTICLE
IX
GENERAL
PROVISIONS
Section
9.1 Addresses and
Notices. Any notice, demand, request, report or proxy
materials required or permitted to be given or made to the Sole Member under
this Agreement shall be in writing and shall be deemed given or made when
delivered in person or when sent by first class United States mail or by other
means of written communication to the Sole Member at the address described
below. The Company may rely and shall be protected in relying on any
notice or other document from the Sole Member or other Person if believed by it
to be genuine.
If to the
Sole Member:
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section
9.2 Creditors. None of
the provisions of this Agreement shall be for the benefit of, or shall be
enforceable by, any creditor of the Company (other than
Indemnitees).
Section
9.3 Applicable
Law. This Agreement shall be construed in accordance with and
be governed by the laws of the State of Delaware, without regard to the
principles of conflicts of law.
Section
9.4 Invalidity of
Provisions. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
Section
9.5 Amendment. This
Agreement may be modified, altered, supplemented or amended pursuant to a
written agreement executed by the Sole Member. To the extent any
discrepancy arises pursuant to Section 5.1 of this
Agreement and the MLP Agreement, the provisions set forth in the MLP Agreement
shall control, and this Agreement shall be amended to conform to such MLP
Agreement. This Agreement and certain rights of the Sole Member or
the Board pursuant to this Agreement are modified, altered, supplemented or
amended by the Settlement Agreement.
Section
9.6 Effectiveness. This
Agreement shall be effective as of the Effective Time and supersedes and
replaces any prior limited liability company agreement of the
Company.
Fourth
Amended and Restated Limited Liability Company Agreement
16
IN WITNESS WHEREOF, the
undersigned has executed this Agreement as of the date first written
above.
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By:
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BREITBURN
GP, LLC,
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its
general partner
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By:
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/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Chief
Executive Officer
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