AMENDMENT NO. 1 TO THE FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF PVG GP, LLC
EXHIBIT
3.2
AMENDMENT
NO. 1
TO
THE
FIRST
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
PVG
GP, LLC
This
Amendment No. 1 to the First Amended and Restated Limited Liability Company
Agreement of PVG GP, LLC, a Delaware limited liability company (the “Company”), dated as of March
31, 2010 and effective immediately prior to the closing of the secondary public
offering of common units in Penn Virginia GP Holdings, L.P., a Delaware limited
partnership, on March 31, 2010 (this “Amendment”), is made and
entered into by Penn Virginia Resource GP Corp., a Delaware corporation, as the
sole member of the Company (the “Member”). Capitalized
terms used herein and not otherwise defined are used as defined in the First
Amended and Restated Limited Liability Company Agreement of the Company, dated
as of December 8, 2006, as amended (the “LLC Agreement”).
WITNESSETH
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 LLC Agreement; and
WHEREAS, the Member desires to
amend the LLC Agreement as set forth herein pursuant to and in accordance with
Section 10.8 of the LLC Agreement.
NOW, THEREFORE, intending to
be legally bound, the Member agrees as follows:
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I.
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AMENDMENTS.
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The LLC
Agreement is amended as follows:
1. Section
1.1 of the LLC Agreement is hereby amended by inserting thereto the following
new definitions in the appropriate alphabetical order that read as
follows:
““Limited
Partner” has the meaning given such term in the Partnership
Agreement.
“Partnership
Agreement” means the Second Amended and Restated Agreement of Limited
Partnership of the Partnership, dated as of October 23, 2007, as amended,
modified, supplemented or restated from time to time, or any successor
agreement.
“Partnership”
means Penn Virginia GP Holdings, L.P., a Delaware limited
partnership.
“PVG
Directors” has the meaning set forth in Section 6.2(b).
“Sponsor
Directors” has the meaning set forth in Section 6.2(c).”
2. Section
6.2 of the LLC Agreement is hereby deleted and replaced in its entirety with the
following:
“6.2
Number; Qualification;
Tenure.
(a) The
number of Directors constituting the Board shall be eight, unless otherwise
fixed from time to time (at a number greater than three) pursuant to a
resolution adopted by a majority of the Directors. A Director need
not be a Member.
(b) (i) The
Members and the Company hereby adopt as part of the terms of this Agreement, and
agree to be bound by, Section 13.4(b) of the Partnership Agreement as if such
section were set forth in full herein and hereby delegate to the Limited
Partners the right to elect three Independent Directors (the “PVG Directors”) at
an annual meeting of the Limited Partners to be held by the Company in
accordance with Section 13.4(b) of the Partnership Agreement. Such
delegation shall not cause any Member to cease to be a member of the Company and
shall not constitute a delegation of any other rights, powers, privileges or
duties of the Members with respect to the Company. A Director need
not be a Member or a Limited Partner.
(ii) The
Limited Partners shall not, as a result of exercising the rights granted under
Section 13.4(b) of the Partnership Agreement, be deemed to be Members or holders
of Membership Interests as such terms are defined in this Agreement or to be
“members,” “managers” or holders of “limited liability company interests” as
such terms are defined in the Act. The exercise by a Limited Partner of the
right to elect PVG Directors and any other rights afforded to such Limited
Partner hereunder and under Section 13.4(b) of the Partnership Agreement shall
be in such Limited Partner’s capacity as a limited partner of the Partnership,
and no Limited Partner shall be liable for any debts, obligations or liabilities
of the Company by reason of the foregoing.
(iii) The
Members, the Directors and the Company shall use their commercially reasonable
best efforts to take such action as shall be necessary or appropriate to give
effect to and implement the provisions of Section 13.4(b) of the Partnership
Agreement as adopted in this Section 6.2(b).
(iv) The
Board, by adoption of a resolution that is approved by the Board (including a
majority of the PVG Directors) and without the consent of any other Person,
shall have the authority to provide for staggered elections of the PVG Directors
in the manner set forth in Section 13.4(b)(v) of the Partnership
Agreement.
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(c) The
Member shall be entitled to appoint all Directors to the Board other than the
PVG Directors (the “Sponsor Directors”). Each Sponsor Director shall
hold office until such Sponsor Director’s successor shall have been duly elected
and qualified, or until such Sponsor Director’s earlier death, resignation or
removal. The Member shall have the right to remove any Sponsor
Director (with or without cause). If at any time there is a vacancy
with respect to one or more Sponsor Directors on the Board, any such vacancy may
only be filled by a person nominated for election and elected by the Member.
Immediately prior to the effectiveness of this Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, A.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. were
Directors and upon the effectiveness of this Agreement, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, A. ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. shall each
serve as a Sponsor Director.”
3. Section
6.9 of the LLC Agreement is hereby deleted and replaced in its entirety with the
following:
“6.9 Intentionally
Omitted.”
4. Section
6.11 of the LLC Agreement is hereby deleted and replaced in its entirety with
the following:
“6.11
Intentionally
Omitted.”
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II.
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MISCELLANEOUS.
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1. Successors and
Assigns. This Amendment shall be binding upon, and shall enure
to the benefit of, each of the Partners, and its respective successors and
assigns.
2. Full Force and
Effect. Except to the extent modified hereby, the LLC
Agreement shall remain in full force and effect.
3. Governing
Law. This Amendment shall be interpreted in accordance with
the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by such laws.
4. Execution in
Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned has caused this Amendment to be duly executed
as of the day and year first above written.
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MEMBER:
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PENN
VIRGINIA RESOURCE GP CORP.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Vice President, Chief Administrative Officer
and Secretary
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