Exhibit 3.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
STAR GAS PARTNERS, L.P.
THIS AMENDMENT NO. 1 (the "Amendment") dated as of April 17, 2001 TO THE
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP dated as of March 26, 1999
(the "Partnership Agreement") of STAR GAS PARTNERS, L.P. (the "Partnership"), is
entered into by and among STAR GAS LLC, a Delaware limited liability company, as
the General Partner, and those persons who are or become partners in the
Partnership or parties hereto as provided herein. In consideration of the
covenants, conditions and agreements contained herein, the parties hereto hereby
agree as follows:
R E C I T A L S:
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WHEREAS, the General Partner proposes to enter into a Unit Purchase Rights
Agreement dated as of the date hereof (the "Rights Agreement"), with American
Stock Transfer & Trust Company, as rights agent (the "Rights Agent"), pursuant
to which the Partnership shall, among other things, declare a distribution of
one right (a "Right"), to purchase one Class A Common Unit for each outstanding
Unit;
WHEREAS, in order to effect the transactions contemplated by the Rights
Agreement, it is necessary to amend the Partnership Agreement as provided
herein;
WHEREAS, the General Partner proposes to further amend the Partnership
Agreement to adopt a provision limiting business combinations with interested
holders that is substantially the same as Section 203 of the Delaware General
Corporation Law; and
WHEREAS, the General Partner has the authority to adopt certain amendments
to the Partnership Agreement without the approval of any Limited Partner or
Assignee to reflect, among other things: (i) subject to the terms of Section 4.4
of the Partnership Agreement, any change that is necessary or desirable in
connection with the authorization for issuance of any class or series of
Partnership Securities pursuant to Section 4.4 and (ii) a change that, in the
sole discretion of the General Partner, does not adversely affect the Limited
Partners in any material respect.
NOW, THEREFORE, the Partnership Agreement is hereby amended as follows:
1. Upon the Distribution Date (as such term is defined in the Rights
Agreement), the Partnership Agreement shall be amended automatically as follows:
a. To incorporate by this reference into the Partnership Agreement as
new Article XXXV all of the terms and provisions of the Rights Agreement.
b. To amend Article V to add the following new Section 5.9:
"Section 5.9 Special Provisions Relating to Adjustment of Minimum
Quarterly Distribution and Target Level Distributions in
Connection with Rights.
(a) Upon the date (the "Trigger Date") of a Triggering Event (as
defined in the Rights Agreement), the Minimum Quarterly
Distribution, First Target Distribution, Second Target
Distribution and Third Target Distribution (collectively, the
"Distribution Levels") shall each automatically be adjusted so
that the Distribution Levels thereafter shall equal the result
obtained by multiplying the Distribution Levels in effect
immediately prior to the date of a Triggering Event by the
Distribution Ratio (defined below).
(b) The distribution ratio (the "Distribution Ratio") shall equal a
fraction the numerator of which shall be the number of Units
outstanding on the Trigger Date, plus the number of Class A
Common Units or other Partnership Securities, as the case may be,
that the aggregate exercise price of the Rights would purchase at
the current per unit market price for the Common Units on the
Trigger Date and the denominator of which shall be the number of
Units outstanding on the Trigger Date, plus the number of Class A
Common Units or other Partnership Securities, as the case may be,
that would be issuable upon the exercise in full of the Rights;
provided, however, that if the General Partner shall have
exercised the option pursuant to Section 24 of the Rights
Agreement to exchange all or a part of the then outstanding and
exercisable Rights for Class A Common Units or other Partnership
Securities, as the case may be, then the Distribution Ratio shall
be adjusted accordingly to reflect the number of Class A Common
Units or other Partnership Securities, as the case may be, that
would be issuable in connection within such exchange."
c. To amend Section 15.3 of the Partnership Agreement to add the
following new paragraph (f):
"(f) Notwithstanding anything to the contrary contained herein,
following the Distribution Date the Partnership shall not
supplement or amend the terms of the Partnership Agreement in any
manner that may materially adversely affect the interests of the
holders of Rights (other than an Acquiring Person or an Affiliate
or an Associate of an Acquiring Person as such capitalized terms
are defined in the Rights Agreement)."
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2. The Partnership Agreement is hereby amended, effective immediately, to
add the following new Article XXXVI:
ARTICLE XXXVI
Business Combinations with Interested Holders.
36.1 Limitation on Business Combinations
(a) Notwithstanding any other provisions of this Agreement, the Partnership
shall not engage in any Business Combination (as defined below) with any
Interested Holder (as defined below) for a period of 3 years following the time
that such Holder became an Interested Holder, unless:
(1) prior to such time the General Partner approved either the
Business Combination or the transaction which resulted in the Holder becoming an
Interested Holder, or
(2) upon consummation of the transaction which resulted in the Holder
becoming an Interested Holder, the Interested Holder owned at least 85% of the
Outstanding Units at the time the transaction commenced, excluding for purposes
of determining the number of Outstanding Units those Units owned by the General
Partner and its Affiliates, or
(3) at or subsequent to such time the Business Combination is approved
by the General Partner and authorized at a meeting of Holders, and not by
written consent, by the affirmative vote of at least 662/3% of the Outstanding
Units which are not owned by the Interested Holder.
(b) The restrictions contained in this section shall not apply if:
(1) The Partnership, by action of its Holders, adopts an amendment to
this Agreement expressly electing not to be governed by this section, provided
that, in addition to any other vote required by law, such amendment to this
Agreement must be approved by the affirmative vote of a majority of the
Outstanding Units. An amendment adopted pursuant to this paragraph shall not be
effective until 12 months after the adoption of such amendment and shall not
apply to any Business Combination between the Partnership and any person who
became an Interested Holder on or prior to such adoption;
(2) a Holder becomes an Interested Holder inadvertently and (i) as
soon as practicable divests itself of ownership of sufficient Units so that the
Holder ceases to be an Interested Holder and (ii) would not, at any time within
the 3 year period immediately prior to a Business Combination between the
Partnership and such Holder, have been an Interested Holder but for the
inadvertent acquisition of ownership;
(3) the Business Combination is proposed prior to the consummation or
abandonment of and subsequent to the earlier of the public announcement or the
notice required hereunder of a proposed transaction which (i) constitutes one of
the transactions described in the second sentence of this paragraph; (ii) is
with or by a Person who either was not an Interested
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Holder during the previous 3 years or who became an Interested Holder with the
approval of the General Partner and (iii) is approved or not opposed by a Person
that was the General Partner (the "Original General Partner") prior to any
Person becoming an Interested Holder during the previous 3 years or was
recommended for appointment to succeed such General Partner by the Original
General Partner. The proposed transactions referred to in the preceding sentence
are limited to (x) a merger or consolidation of the Partnership (except for a
merger in respect of which no vote of the Holders is required); (y) a sale,
lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions), whether as part of a dissolution or
otherwise, of assets of the Partnership or of any direct or indirect
majority-owned subsidiary of the Partnership (other than to any direct or
indirect wholly-owned subsidiary or to the Partnership) having an aggregate
market value equal to 50% or more of either the aggregate market value of all of
the assets of the Partnership determined on a consolidated basis or the
aggregate market value of all the Outstanding Units of the Partnership; or (z) a
proposed tender or exchange offer for 50% or more of the Outstanding Units of
the Partnership. The Partnership shall give not less then 20 days notice to all
Interested Holders prior to the consummation of any of the transactions
described in clauses (x) or (y) of the second sentence of this paragraph;
36.2 Definitions Applicable to Article XXXVI
As used in this section only, the term:
(a) "Business Combination," when used in reference to the Partnership and
any Interested Holder of the Partnership means:
(i) any merger or consolidation of the Partnership or any direct or
indirect majority-owned subsidiary of the Partnership with (A) the
Interested Holder, or (B) with any other corporation, partnership,
unincorporated association or other entity if the merger or consolidation
is caused by the Interested Holder and as a result of such merger or
consolidation subsection (a) of this section is not applicable to the
surviving entity;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions), except
proportionately as a Holder of the Partnership, to or with the Interested
Holder, whether as part of a dissolution or otherwise, of assets of the
Partnership or of any direct or indirect majority-owned subsidiary of the
Partnership which assets have an aggregate market value equal to 10% or
more of either the aggregate market value of all the assets of the
Partnership determined on a consolidated basis or the aggregate market
value of all the Outstanding Units of the Partnership;
(iii) any transaction which results in the issuance or transfer by the
Partnership or by any direct or indirect majority-owned subsidiary of the
Partnership of any securities of the Partnership or of such subsidiary to
the Interested Holder, except (A) pursuant to the exercise, exchange or
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conversion of securities exercisable for, exchangeable for or convertible
into securities of the Partnership or any such subsidiary which securities
were outstanding prior to the time that the Interested Holder became such,
(B) pursuant to a merger of the Partnership with or into a single direct or
indirect wholly-owned subsidiary of the Partnership in a transaction that
would meet the requirements of Section 251(g) of the Delaware General
Corporation Law, if the Partnership was a corporation, (C) pursuant to a
dividend or distribution paid or made, or the exercise, exchange or
conversion of securities exercisable for, exchangeable for or convertible
into securities of the Partnership or any such subsidiary which security is
distributed, pro rata to all holders of a class or series of securities of
such Partnership subsequent to the time the Interested Holder became such,
(D) pursuant to an exchange offer by the Partnership to purchase Units made
on the same terms to all holders of said Units, or (E) any issuance or
transfer of Units by the Partnership, provided however, that in no case
under (B)-(D) above shall there be an increase in the Interested Holder's
proportionate share of the securities of any class or series of the
Partnership or of the Units of the Partnership;
(iv) any transaction involving the Partnership or any direct or
indirect majority-owned subsidiary of the Partnership which has the effect,
directly or indirectly, of increasing the proportionate share of the
securities of any class or series, or securities convertible into the
securities of any class or series, of the Partnership or of any such
subsidiary which is owned by the Interested Holder, except as a result of
immaterial changes due to fractional unit adjustments or as a result of any
purchase or redemption of any Units not caused, directly or indirectly, by
the Interested Holder; or
(v) any receipt by the Interested Holder of the benefit, directly or
indirectly (except proportionately as a Holder of such Partnership) of any
loans, advances, guarantees, pledges, or other financial benefits (other
than those expressly permitted in subparagraphs (i)-(iv) above) provided by
or through the Partnership or any direct or indirect majority owned
subsidiary.
(b) "control," including the term "controlling," "controlled by" and "under
common control with," means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or otherwise. A
Person who is the owner of 20% or more of the outstanding voting securities of
any corporation, partnership, unincorporated association or other entity shall
be presumed to have control of such entity, in the absence of proof by a
preponderance of the evidence to the contrary. Notwithstanding the foregoing, a
presumption of control shall not apply where such Person holds voting
securities, in good faith and not for the purpose of circumventing this section,
as an agent, bank, broker, nominee, custodian or trustee for one or more owners
who do not individually or as a group have control of such entity.
(c) "Interested Holder" means any Person (other than the Partnership and
any direct or indirect majority-owned subsidiary of the Partnership) that (i) is
the owner of 15% or more of the Outstanding Units of the Partnership, or (ii) is
an affiliate or associate of the Partnership and was the owner of 15% or more of
the Outstanding Units of the Partnership at any time within the 3-year period
immediately prior to the date an which it is sought to be determined whether
such Person is an Interested Holder, and the Affiliates and Associates of such
Person; provided, however, that the term "Interested Holder" shall not include
any Person whose ownership of Units in excess of the 15% limitation set forth
herein is the result of action taken solely by the Partnership provided that
such person shall be an Interested Holder if thereafter such Person acquires
additional Units, except as a result of further Partnership action not caused,
directly or indirectly, by such Person. For the purpose of determining whether a
person is an Interested Holder, the Outstanding Units shall include Units deemed
to be owned by the Person through application of paragraph (e) of this
subsection but shall not include any other unissued Units
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which may be issuable pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or options, or otherwise.
(d) "Person" means any individual, corporation, partnership, unincorporated
association or other entity.
(e) "owner" including the terms "own" and "owned" when used with respect to
any Units means a person that individually or with or through any of its
affiliates or associates:
(i) beneficially owns such Units, directly or indirectly; or
(ii) has (A) the right to acquire such Units (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; provided, however,
that a person shall not be deemed the owner of Units tendered pursuant to a
tender or exchange offer made by such person or any of such person's affiliates
or associates until such tendered Units is accepted for purchase or exchange; or
(B) the right to vote such Units pursuant to any agreement, arrangement or
understanding; provided, however, that a person shall not be deemed the owner of
any Units because of such person's right to vote such Units if the agreement,
arrangement or understanding to vote such Units arises solely from a revocable
proxy or consent given in response to a proxy or consent solicitation made to 10
or more persons; or
(iii) has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting (except voting pursuant to a revocable proxy or
consent as described in item (B) of clause (ii) of this paragraph), or disposing
of such Units with any other person that beneficially owns, or whose affiliates
or associates beneficially own, directly or indirectly, such Units.
3. Capitalized terms that are used herein without definition shall
have the meanings ascribed to them in the Partnership Agreement unless otherwise
indicated.
4. The Partnership Agreement, as amended hereby, remains in full force
and effect.
5. This Amendment shall be construed in accordance with and governed
by the laws of the State of Delaware, without regard to the principles of
conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GENERAL PARTNER:
STAR GAS LLC
By: ____________________________
Name:
Title:
LIMITED PARTNERS:
All Limited Partners now and hereafter
admitted as limited partners of the
Partnership, pursuant to the Powers of
Attorney now and hereafter executed in
favor of, and granted and delivered to,
the General Partner.
By: STAR GAS LLC
General Partner, as attorney-in-fact for
all Limited Partners pursuant to the
Powers of Attorney granted pursuant to
Section 1.4 of the Partnership
Agreement.
By: _______________________________
Name:
Title:
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