THIRD AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF BREITBURN GP, LLC
Exhibit
3.2
THIRD
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
|
Section
1.1
|
Definitions.
|
2
|
|
Section
1.2
|
Construction.
|
4
|
ARTICLE
II
ORGANIZATION
|
Section
2.1
|
Formation.
|
5
|
|
Section
2.2
|
Name.
|
5
|
|
Section
2.3
|
Registered
Office; Registered Agent; Other Offices.
|
5
|
|
Section
2.4
|
Purpose
and Business.
|
5
|
|
Section
2.5
|
Powers.
|
6
|
|
Section
2.6
|
Term.
|
6
|
|
Section
2.7
|
Title
to Company Assets.
|
6
|
ARTICLE
III
RIGHTS
OF THE SOLE MEMBER
|
Section
3.1
|
Distributions.
|
6
|
ARTICLE
IV
CAPITAL
CONTRIBUTIONS; PREEMPTIVE RIGHTS;
NATURE
OF MEMBERSHIP INTEREST
|
Section
4.1
|
Capital
Contributions.
|
6
|
|
Section
4.2
|
No
Preemptive Rights.
|
6
|
|
Section
4.3
|
Fully
Paid and Non-Assessable Nature of Membership Interests.
|
7
|
ARTICLE
V
MANAGEMENT
AND OPERATION OF BUSINESS
|
Section
5.1
|
Establishment
of the Board Number; Election; Tenure.
|
7
|
|
Section
5.2
|
The
Board; Delegation of Authority and Duties.
|
8
|
|
Section
5.3
|
Meetings
of the Board and Committees.
|
9
|
|
Section
5.4
|
Voting.
|
10
|
|
Section
5.5
|
Responsibility
and Authority of the Board.
|
10
|
|
Section
5.6
|
Devotion
of Time.
|
10
|
|
Section
5.7
|
Certificate
of Formation.
|
10
|
|
Section
5.8
|
Benefit
Plans.
|
11
|
|
Section
5.9
|
Indemnification.
|
11
|
|
Section
5.10
|
Liability
of Indemnitees.
|
12
|
ARTICLE
VI
OFFICERS
|
Section
6.1
|
Officers.
|
13
|
|
Section
6.2
|
Compensation.
|
15
|
ARTICLE
VII
BOOKS,
RECORDS, ACCOUNTING AND REPORTS
|
Section
7.1
|
Records
and Accounting.
|
15
|
|
Section
7.2
|
Reports.
|
15
|
|
Section
7.3
|
Bank
Accounts.
|
15
|
ARTICLE
VIII
DISSOLUTION
AND LIQUIDATION
|
Section
8.1
|
Dissolution.
|
16
|
|
Section
8.2
|
Effect
of Dissolution.
|
16
|
|
Section
8.3
|
Application
of Proceeds.
|
16
|
ARTICLE
IX
GENERAL
PROVISIONS
|
Section
9.1
|
Addresses
and Notices.
|
17
|
|
Section
9.2
|
Creditors.
|
17
|
|
Section
9.3
|
Applicable
Law.
|
17
|
|
Section
9.4
|
Invalidity
of Provisions.
|
17
|
|
Section
9.5
|
Amendment.
|
17
|
THIRD
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
THIS THIRD AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of BREITBURN GP,
LLC (the “Company”), dated as of December 29, 2009, 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 Second Amended and Restated Limited Liability Company
Agreement of the Company, dated as of June 17, 2008 (the “Second Amended
Agreement”), entered into by the MLP;
WHEREAS, on June 17, 2008, the
MLP acquired from the owners of BreitBurn Management Company, LLC, a Delaware
limited liability company (“BreitBurn Management”), all of the limited liability
company interests in BreitBurn Management, and the MLP was admitted as the sole
member of BreitBurn Management;
WHEREAS, pursuant to the
Contribution 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;
WHEREAS, the Sole Member
executed the Second Amended Agreement in connection with the transactions
described above; and
WHEREAS, the Sole Member now
desires to amend and restate the Second Amended Agreement and to execute this
Third Amended and Restated Limited Liability Company Agreement in order to
conform the provisions of this Third Amended and Restated Limited Liability
Company Agreement to 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, including without limitation as it
was amended by Revised Amendment No. 1 thereto adopted on the date hereof, and
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 Second 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 Third
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
Third
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
Third
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
Third
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
Third
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
Third
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. The Directors shall be elected by a majority of the
Directors. For so long as the Company serves as the general partner
of the MLP, the Board shall at all times have a majority of Independent
Directors.
(b)
Each Director shall hold office until the removal of such Director in accordance
with the provisions of this Agreement and until such Director’s successor shall
have been duly elected and qualified, or until such Director’s earlier death or
resignation. 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. A Director may be removed only upon a vote of the majority
of the remaining Directors then in office.
(c) As
of the date hereof, the Board shall consist of six Directors. The
Directors of the Company as of the date hereof are as follows:
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BreitBurn
GP, LLC
Third
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, except as
otherwise provided in this Agreement or the MLP Agreement, 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 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.
BreitBurn
GP, LLC
Third
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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
9
(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.
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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
10
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.
(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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
11
(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.
(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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
12
(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.
(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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
13
(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.
(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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
14
(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).
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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
15
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.
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
16
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.
[The
Remainder Of This Page Is Intentionally Blank]
BreitBurn
GP, LLC
Third
Amended and Restated
Limited
Liability Company Agreement
17
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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Co-Chief
Executive Officer
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