SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF BREITBURN GP, LLC
Exhibit
3.2
SECOND
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
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TABLE
OF
CONTENTS
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ARTICLE
I
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DEFINITIONS
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Section
1.1
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Definitions
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2
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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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Section
2.1
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Formation
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5
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Section
2.2
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Name
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5
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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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6
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Section
2.6
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Term
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6
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Section
2.7
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Title
to Company Assets
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6
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ARTICLE III
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RIGHTS
OF THE SOLE MEMBER
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Section
3.1
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Distributions
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6
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ARTICLE IV
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CAPITAL
CONTRIBUTIONS; PREEMPTIVE RIGHTS;
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NATURE
OF MEMBERSHIP INTEREST
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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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7
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ARTICLE V
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MANAGEMENT
AND OPERATION OF BUSINESS
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Section
5.1
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Establishment
of the Board Number; Election; Tenure
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7
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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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11
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Section
5.7
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Certificate
of Formation
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11
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Section
5.8
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Benefit
Plans
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11
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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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13
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BreitBurn
GP, LLC
Second
Amended and Restated
i
|
ARTICLE VI
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OFFICERS
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Section
6.1
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Officers
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13
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Section
6.2
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Compensation
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15
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ARTICLE VII
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BOOKS,
RECORDS, ACCOUNTING AND REPORTS
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Section
7.1
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Records
and Accounting
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16
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Section
7.2
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Reports
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16
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Section
7.3
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Bank
Accounts
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16
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ARTICLE VIII
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DISSOLUTION
AND LIQUIDATION
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Section
8.1
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Dissolution
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16
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Section
8.2
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Effect
of Dissolution
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17
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Section
8.3
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Application
of Proceeds
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17
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ARTICLE IX
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GENERAL
PROVISIONS
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Section
9.1
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Addresses
and Notices
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17
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Section
9.2
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Creditors
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18
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Section
9.3
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Applicable
Law
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18
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Section
9.4
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Invalidity
of Provisions
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18
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Section
9.5
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Amendment
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18
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BreitBurn
GP, LLC
Second
Amended and Restated
ii
SECOND
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
THIS
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT
(the
“Agreement”) of BREITBURN GP, LLC (the “Company”), dated as of June 17, 2008, 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 First Amended and Restated Limited Liability Company
Agreement of the Company, dated as of October 10, 2006 (the “First Amended
Agreement”), entered into by BreitBurn Management Company, LLC, a Delaware
limited liability company (“BreitBurn Management”);
WHEREAS,
on the
date hereof, the MLP has acquired from the owners of BreitBurn Management all
of
the limited liability company interests in BreitBurn Management, and the MLP
has
been admitted as the sole member of BreitBurn Management;
WHEREAS,
pursuant
to the Contribution Agreement entered into simultaneously with the effectiveness
of this Agreement, dated as of June 17, 2008, among BreitBurn Management, the
Company, BreitBurn Energy Corporation, a California corporation, and the MLP,
(i) BreitBurn Management distributed and assigned all of the limited liability
company interests in the Company to the MLP, (ii) simultaneously with such
distribution and assignment, the MLP was admitted to the Company as the sole
member of the Company and BreitBurn Management ceased to be a member of the
Company, and (iii) the Company was continued without dissolution;
and
WHEREAS,
the
Sole Member now desires to amend and restate the First Amended Agreement and
to
execute this Second Amended and Restated Limited Liability Company Agreement
in
connection with the transactions described above 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 First 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 Second 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.
“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”
shall
have the meaning assigned to such term in the Recitals.
“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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
2
“Directors”
shall
have the meaning assigned to such term in Section
5.1.
“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.
“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.
“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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
3
“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.
“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.
“U.S.
GAAP”
means
United States 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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
4
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.
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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
5
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.
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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
6
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 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 beginning in 2009, successors to the class of Directors whose term
expires at that annual meeting shall be elected for a three-year term.
(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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
7
(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:
|
▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇.
|
Class
I
|
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Class
I
|
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇
|
Class
II
|
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Class
II
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
Class
III
|
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Class
III
|
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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
8
(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 but may otherwise be an officer. 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.
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).
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
9
(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.
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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
10
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.
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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
11
(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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
12
(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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
13
(b) Titles
and Number.
The
Officers shall be the Chairman of the Board, the Vice Chairman, the Chief
Executive Officer or Co-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) Chairman
of the Board.
The
Chairman of the Board shall, if present, preside at meetings of the Board and
exercise and perform such other powers and duties as may from time to time
be
assigned by the Board or as may be prescribed by this Agreement. The Chairman
of
the Board shall be, ex officio, a member of all standing committees.
(ii) Vice
Chairman of the Board.
The
Vice Chairman of the Board shall preside at all meetings of the Board in the
absence of the Chairman of the Board. In the absence, disability or
non-existence of the Chairman of the Board, or in the event that it is
impractical for the Chairman of the Board to act personally, the Vice Chairman
of the Board shall have the powers and duties of the Chairman of the Board.
The
Vice Chairman of the Board shall also have such other powers or duties as shall
be assigned by the Board or as may be prescribed by this Agreement.
(iii) Chief
Executive Officer.
The
Chief Executive Officer or Co-Chief Executive Officers, as applicable, shall
have (and in the case of Co-Chief Executive Officers, each shall have) general
supervision, direction and control of the business and the Officers of the
Company. In the absence, disability or non-existence of a Chairman of the Board
or Vice Chairman of the Board, the Chief Executive Officer or Co-Chief Executive
Officers, as applicable, shall preside at meetings of the Board. The Chief
Executive Officer or Co-Chief Executive Officers, as applicable, also shall
have
such other powers and duties as may be assigned by the Board or as may be
prescribed by this Agreement.
(iv) President.
The
President shall have such powers and perform such duties as may be assigned
by
the Board or by the Chairman of the Board. In the absence, disability or
non-existence of the President, his or her duties shall be performed by such
Vice Presidents as the Chairman of the Board or the Board may designate. The
President shall report to the Chief Executive Officer or Co-Chief Executive
Officers, as applicable.
(v) 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 Chairman of the Board 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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
14
(vi) 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 or Co-Chief Executive Officers, as
applicable.
(vii) 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 Chairman 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.
(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) pursuant to
those certain Employment Agreements (each such agreement, as the same may be
amended, an “Employment Agreement”), between the Company and each such Officer,
or (b) in the absence of such an Employment Agreement, as designated by the
Board or a compensation committee appointed by the Board pursuant to
Section
5.2(c).
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
15
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.
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
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
16
(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.
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.
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
17
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.
[The
Remainder Of This Page Is Intentionally Blank]
BreitBurn
GP, LLC
Second
Amended and Restated
Limited
Liability Company Agreement
18
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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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Co-Chief Executive Officer
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