FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF ONEOK ILP GP, L.L.C.
FIRST
AMENDED AND RESTATED
OF
ONEOK
ILP GP, L.L.C.
Effective
as of July 14, 2009, this Amended and Restated Limited Liability Company
Agreement (this “Agreement”) of ONEOK ILP GP, L.L.C., a Delaware limited
liability company (the “Company”), is adopted and entered into by ONEOK
Partners, L.P., as sole Member (the “Members,” which term includes any other
persons or entities which may become members of the Company in accordance with
the terms of this Agreement and the Act) of the Company pursuant to and in
accordance with the Limited Liability Company Act of the State of Delaware, as
amended from time to time (the “Act”). Terms used in this Agreement
which are not otherwise defined shall have the respective meanings given those
terms in the Act.
IT IS
HEREBY AGREED AS FOLLOWS:
ARTICLE
I
NAME
Section
1.01 Name. The
name of the limited liability company is: ONEOK ILP GP,
L.L.C.
ARTICLE
II
TERM
Section
2.01 Term. The
term of the Company shall be perpetual, and the Company shall continue until
dissolved in accordance with the Act.
ARTICLE
III
MEETINGS OF
MEMBERS
Section
3.01 Meetings of
Members. Meetings
of the Members may be called by Members holding not less than a majority of the
capital interests in the Company or by the Chairman of the Board of the
Company. Meetings shall be held at the principal office of the
Company. A written notice of each meeting shall be given to each
Member stating the place, time and date of the meeting and the purposes of the
meeting. Such notice will be given not less than five (5) days nor
more than twenty (20) days prior to the meeting. Members may waive
notice in writing. Members holding a majority of the capital
interests in the Company shall decide all elections and matters brought before
the meeting unless a greater majority is required by this Agreement or
applicable law for any such election or matter. The meeting shall be
conducted by the Chairman of the Board or in his absence the next ranking
officer of the Company present at the meeting. Any action required or
permitted to be taken at a meeting of the Members may be taken without a meeting
if the written consent thereto is signed by Members holding the capital
interests in the Company necessary for such action.
ARTICLE
IV
BOARD OF
DIRECTORS
Section
4.01 Board of
Directors. Management
of the Company is vested in a board of managers, which shall be known as the
“Board of Directors”. The property, business, and affairs of the
Company shall be managed by and under the direction of the Board of Directors,
except as may be otherwise provided for in the Act.
Section
4.02 Number. The
number of Directors of the Company shall be fixed from time to time by Members
holding a majority of the capital interests in the Company. Members
holding a majority of the capital interests in the Company shall designate each
of the authorized Directors. Newly created directorships resulting
from any increase in the authorized number of Directors or any vacancies in the
Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled by
designation of the Members holding a majority of the capital interests in the
Company.
Section
4.03 Resignations and
Removal. Any
Director of the Company may resign at any time by giving written notice to the
Board or to the Secretary of the Company. Any such resignation shall
take effect immediately upon its receipt; and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Any Director of the Company may be removed from office at
any time upon the affirmative vote of the Members holding of a majority of the
capital interests in the Company.
Section
4.04 Place of Meeting,
etc. The
Board may hold any of its meetings at such place or places as the Board may from
time to time by resolution designate or as shall be designated by the person or
persons calling the meeting. Directors may participate in any regular
or special meeting of the Board or any meeting of a committee designated by such
Board by means of conference telephone or similar communications equipment
pursuant to which all persons participating in such meeting can hear each other,
and such participation shall constitute presence in person at such
meeting.
Section
4.05 Regular
Meetings. Regular
meetings of the Board may be held at such times as the Board shall from time to
time by resolution determine. If any day fixed for a meeting shall be
a legal holiday at the place where the meeting is to be held, then the meeting
shall be held at the same hour and place on the next succeeding business day not
a legal holiday. Except as provided by law, notice of regular
meetings need not be given.
Section
4.06 Special
Meetings
(a) Special
meetings of the Board may be called at any time by the Chairman of the Board or
any President, or by not less than one-third (1/3) of the Directors, to be held
at the principal office of the Company, or at such other place or places, as the
person or persons calling the meeting may designate.
(b) Notice of
all special meetings of the Board shall be given by the Secretary or by the
person or persons calling the meeting to each Director by mailing a copy thereof
at least four days before the meeting or by two days, service of the same by
telegram, facsimile, electronic mail, or personally (in person or by
telephone). If the Chairman, or any President, or
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the
Directors calling the meeting determine that a special meeting of the Board on
short notice is necessary, then notice may be given by telephone, telegraph or
facsimile transmission not less than four hours in advance of the time when a
meeting shall be held. Such notice may be waived by any Director and
any meeting shall be a legal meeting without notice having been given if all the
Directors shall be present thereat or if those not present shall, either before
or after the meeting sign a written waiver of notice of, or a consent to, such
meeting or shall, after the meeting, sign the approval of the minutes
thereof. Such notice shall be deemed waived by any Director who is
present at a meeting, unless the Director is present only for the purpose of
objecting to the holding of the meeting without the proper notice having been
given. All such waivers, consents, or approvals shall be filed with
the Company records or be made a part of the minutes of the
meeting.
Section
4.07 Quorum and Manner of
Acting. Except
as otherwise provided in the Certificate of Formation of the Company or by law,
the presence of a majority of the total number of directors shall be required to
constitute a quorum for the transaction of business at any meeting of the Board,
and all matters shall be decided at any such meeting, a quorum being present, by
the affirmative votes of a majority of the Directors present. In the
absence of a quorum, a majority of Directors present at any meeting may adjourn
the same from time to time until a quorum shall be present. Notice of
any adjourned meeting need not be given. The Directors shall act only
as a Board, and the individual Directors shall have no power as
such.
Section
4.08 Action by
Consent. Any
action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if a written consent thereto is
signed by all members of the Board or such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board or
such committee.
Section
4.09 Compensation. All
salaries and compensation paid by the Company to its Directors shall be fixed
from time to time by the Board of Directors at a regular meeting of the Board,
and any payment of any kind or character to any Director of the Company or any
contract made with a Director or executive officer must be approved by a
majority of the whole Board of Directors at a meeting of the Board, before such
payment is made or contract executed.
Section
4.10 Committees
(a) The Board
may, by resolution passed by a majority of the whole Board, designate one or
more committees, each committee to consist of one or more of the Directors of
the Company. Any committee of the Board, to the extent provided in
the resolution of the Board, shall have and may exercise all powers and
authority of the Board in the management of the business and affairs of the
Company, and may authorize the seal of the Company to be affixed to all papers
which may require it; but no such committee shall have any power or authority
to:
(1) approve
or adopt any action or matter expressly required by the Act to be submitted to
Members for approval; or
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(2) adopt,
amend, or repeal the Limited Liability Company Agreement of the
Company.
Any such
committee shall keep written minutes of its meetings and report the same to the
Board at the next regular meeting of the Board.
(b) Except as
may otherwise be ordered by the Board of Directors, the Chairman of the Board
shall appoint the members and chairmen of all special or other committees of the
Board. The Chairman of the Board shall be an ex-officio member of all
standing committees, except the executive compensation committee and the audit
committee, and shall be the Chairman of any executive committee of the
Board.
(c) In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
they constitute a quorum, may unanimously appoint another member of the Board to
act at a meeting in the place of any such absent or disqualified
member.
Section
4.11 Officers of the
Board. The
Chairman of the Board, or in the absence of the Chairman of the Board, any
President, or in a President’s absence, any other officer of the Company who is
a Director, shall preside at all meetings of the Board, or in the absence of any
such officers, a temporary chairman elected by the Directors present at the
meeting.
Section
4.12 Interested
Directors.
(a) No
Director shall vote on a question in which such Director is
interested, but in the absence of fraud, no contract or other
transaction of the Company shall be affected or invalidated in any way by the
fact that any of the Directors of the Company are in any way interested in or
connected with any other party to such contract or transaction, or are
themselves parties to such contract or transaction, provided that such interest
or connection shall be fully disclosed or otherwise be known to the Board of
Directors at the meeting of said Board at which such contract or transaction is
authorized or confirmed, provided further that the contract or transaction is
fair as to the Company at the time authorized or confirmed by the Board, and
provided further that at the meeting of the Board at which such contract or
transaction is to be authorized or confirmed, a quorum be present which may
include common or interested Directors for purposes of determining the presence
of a quorum, and the Board in good faith authorizes or confirms such contract or
transaction by the affirmative votes of a majority of the disinterested
Directors, even though the disinterested Directors be less than a
quorum. The mere ownership of stock in another company by a Director
shall not disqualify such Director to vote in respect of any transaction between
the Company and such other company, provided the other provisions of this
Section are complied with.
(b) No
contract or other transaction between the Company and any other company shall be
affected by the fact that any of the Directors of the Company are interested in
or are directors or officers of such other company, if such contract or
transaction be made, authorized, or confirmed by the Board in the manner
provided in the preceding paragraph, or by any committee of the Board of the
Company having the requisite authority, by vote of a majority of the members of
such committee of the Board not so interested. Any Director
individually
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may be a
party to or may be interested in any contract or transaction of the Company,
provided that such contract or transaction shall be approved or ratified by the
Board or by any committee of the Board having the requisite authority, in the
manner herein set forth.
(c) The Board
of Directors, in its discretion, may submit any contract or act of the Company
or of the Board for approval or ratification at any meeting of the Members, the
notice of which shall state that the meeting is called for the purpose, or in
part for the purpose, of considering any such act or contract, and any such
contract or act that shall be approved or be ratified by the vote of the holders
of a majority in capital interests of the Company entitled to vote thereat,
shall be as valid and as binding upon the Company and upon all the Members as
though it had been approved and ratified by every Member of the
Company.
(d) Any
Director of the Company may vote upon any contract or other transaction between
the Company and any subsidiary Company without regard to the fact that such
person is also a Director or officer of such subsidiary Company.
(e) No
contract or agreement between the Company, on the one hand, and any other
company or party, on the other hand, which owns a majority of the capital
interests of the Company or any subsidiary of any such other company shall be
made or entered into without the affirmative vote of a majority of the whole
Board at a regular or special meeting of the Board.
ARTICLE
V
OFFICERS
Section
5.01 Officers. The
officers of the Company shall be a Chairman of the Board, a Chief Executive
Officer, a Chief Operating Officer, one or more Presidents, a Chief Financial
Officer, a Chief Accounting Officer, a Secretary, a Treasurer, and such Vice
Presidents (including one or more Executive Vice Presidents and Senior Vice
Presidents) and such other officers as may be elected by the Board of
Directors or as may be appointed by the Chief Executive Officer from time to
time as authorized by this Agreement. The Chairman of the Board, the
Chief Executive Officer, the Chief Operating Officer, one or more Presidents, a
Chief Financial Officer, a Chief Accounting Officer, a Secretary and a Treasurer
shall be elected by the Board. The Board may also elect one or more
Executive Vice Presidents and one or more Senior Vice Presidents, and such other
officers, as the Board may determine from time to time. The Chief
Executive Officer may appoint one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and such other officer as he/she determines
from time to time, other than officers appointed by the Board. The
Chief Executive Officer shall provide the Board with a list of all officers
appointed by the Chief Executive Officer upon request of any member of the Board
at any time. Officers shall have such powers and duties as are
permitted or required by law and as may be specified by or in accordance with
the Certificate of Formation of the Company, this Agreement, by resolutions of
the Board, or, in the case of officers appointed by the Chief Executive Officer,
as may be specified by the Chief Executive Officer, except such powers as are by
statute, the Certificate of Formation or this Agreement vested solely in the
Members. Each officer shall hold office until such person shall
resign, be removed or such person’s successor shall be elected and
qualified. In the absence of any contrary determination by the Board
and except as otherwise expressly provided for in any written contract duly
authorized by the Board, the person designated as Chief Executive Officer shall,
subject to the
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power and
authority of the Members, have general supervision, direction and control of the
officers of the Company and the employees, business and affairs of the Company
and shall have the power to remove any officer of the Company. Except
as otherwise expressly provided for in any written contract duly authorized by
the Board, all officers, agents, and employees shall be subject to removal at
any time by the affirmative vote of a majority of the Board, and all officers,
agents, and employees other than officers elected or appointed by the Board (who
shall be subject to removal as set forth in this sentence and immediately
preceding sentence), shall also be subject to removal at any time by the officer
with supervisory responsibility over them. Any officer may resign at
any time by giving written notice to the Secretary of the Company which shall be
effective upon receipt.
Section
5.02 Voting Stock and Other
Interests. Unless
otherwise determined by the Board, the person designated as the Chief Executive
Officer or, in such officer’s absence or with such officer’s consent, the next
ranking officer of the Company, shall have full power and authority on behalf of
the Company (i) to attend and to act and to vote, or in the name of the Company
to execute proxies to vote, at any meetings of shareholders of any corporations
in which the Company may, directly or indirectly, hold stock, and at any such
meetings shall possess and may exercise in person or by proxy, any and all
rights, powers, and privileges incident to the ownership of such stock, and (ii)
to act and to vote or consent on behalf of the Company, as a member of any
limited liability company, partnership, or other entity, the Company’s ownership
or interest therein and shall possess and may exercise any and all rights,
powers and privileges incident to such ownership or interest. The
Board may, by resolution, from time to time, confer like powers upon any other
person or persons.
Section
5.03 Limitation on Liability;
Indemnification
(a) Notwithstanding
anything to the contrary set forth in this Agreement, no Director or officer
shall be personally liable either to the Company or to any Member for monetary
damages for breach of fiduciary duty as Director or officer, except for
liability (i) for any breach of the Director’s or officer’s duty of loyalty to
the Company or its Members, (ii) for acts or omissions which are not in good
faith or which involve intentional misconduct or knowing violation of the law,
(iii) for any transaction from which the Director or officer shall have derived
an improper personal benefit or (iv) for any action which would constitute a
violation of Section 18 607 of the Act. Neither amendment nor repeal
of this paragraph (a) nor the adoption of any provision of this Agreement
inconsistent with this paragraph (a) shall eliminate or reduce the effect of
this paragraph (a) in respect of any matter occurring, or any cause of action,
suit or claim that, but for this paragraph (a) of this Section 5.03, would
accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
(b) The
Company shall indemnify any Director or officer of the Company who is or was a
party or is threatened to be made a party to, or testifies in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative in nature, by reason of the fact that such
person is or was a Director or officer of the Company, or is or was serving at
the request of the Company as a director, officer, employee or agent of another
company, partnership, joint venture, employee benefit plan, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit
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or
proceeding to the fullest extent permitted by the Act, and the Company may enter
into agreements with any such person for the purpose of providing such
indemnification. Expenses incurred by any Director or officer of the
Company in defending or testifying in such action, suit or proceeding shall be
paid by the Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such Director or
officer of the Company to repay such amount if it shall ultimately be determined
that such Director or officer of the Company is not entitled to be indemnified
by the Company against such expenses as authorized by this Section 5.03, and the
Company may enter into agreements with such persons for the purpose of providing
for such advances.
(c) The
Company shall have the power to indemnify any employee or agent of the Company
who is or was a party or is threatened to be made a party to, or testifies in,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, by reason of the fact that
such person is or was an employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another company, partnership, joint venture, employee benefit plan, trust or
other enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding to the fullest extent
permitted by the Act, and the Company may enter into agreements with any such
person for the purpose of providing such indemnification. Expenses
incurred by an employee or agent in defending or testifying in such action, suit
or proceeding may be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such employee or agent to repay such amount if it shall ultimately be
determined that such employee or agent is not entitled to be indemnified by the
Company against such expenses as authorized by this Section 5.03, and the
Company may enter into agreements with such persons for the purpose of providing
for such advances.
(d) The
indemnification permitted by this Section 5.03 shall not be deemed exclusive of
any other rights to which any person may be entitled under any agreement,
affirmative vote of Members holding not less than a majority of the capital
interests of the Company or disinterested Directors or otherwise, both as to
action in such person’s official capacity and as to action in another capacity
while holding an office, and shall continue as to a person who has ceased to be
a Director, officer of the Company, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such person.
(e) The
Company shall have power to purchase and maintain insurance on behalf of any
person who is or was a Director, officer of the Company, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another company, partnership, joint venture,
employee benefit plan, trust or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the Company would have the
power to indemnify such person against such liability under the provisions of
this Section 5.03 or otherwise.
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ARTICLE
VI
PURPOSE
Section
6.01 Purpose. The
purpose of the Company is to engage in any lawful act or activity for which
limited liability companies may be formed under the Act and to engage in any and
all activities necessary or incidental to these acts or activities.
ARTICLE
VII
MEMBERS
Section
7.01 Member. The
name and business address of the initial sole Member is as follows:
Name
Address
ONEOK
Partners,
L.P. ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ARTICLE
VIII
CAPITAL
INTERESTS/UNITS
Section
8.01 Units. There
shall be an aggregate of one hundred (100) Units in the Company, all of which
have been issued to the initial sole Member. The term “Unit” shall
mean a unit representing a capital interest in the Company.
ARTICLE
IX
CAPITAL
CONTRIBUTIONS
Section
9.01 Capital
Contributions. The
Members shall make contributions of capital of the Company at the times and in
the amounts as determined by unanimous consent of the Members.
ARTICLE
X
ALLOCATION OF PROFITS AND
LOSSES
Section
10.01 Allocation of Profits and
Losses. The
Company’s profits and losses will be allocated among the Members in proportion
to the value of the capital contributions of the Members.
ARTICLE
XI
DISTRIBUTIONS
Section
11.01 Distributions. Distributions
shall be made to the Members at the times and in the aggregate amounts
determined by unanimous consent of the Members. Such distributions
shall be allocated among the Members in proportion to the value of the capital
contributions of the Members.
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ARTICLE
XII
WITHDRAWAL OF
MEMBER
Section
12.01 Withdrawal of
Member. A
Member may withdraw from the Company in accordance with the Act.
ARTICLE
XIII
ASSIGNMENTS
Section
13.01 Assignments. A
Member may assign, in whole or in part, its membership interest in the Company;
provided, however, an assignee of a membership interest may not become a Member
without the approval by vote or written consent of the Members holding at least
a majority of the capital interests in the Company, excluding the Member who
assigns or proposes to assign its membership interest; except that such vote or
consent is not required for an assignment made by the initial Member listed in
Section 7.01, or an affiliate of such initial Member.
ARTICLE
XIV
ADMISSION OF ADDITIONAL
MEMBERS
Section
14.01 Admission of Additional
Members. One
or more additional Members of the Company may be admitted to the Company with
the vote or written consent of the Members holding a majority of the capital
interests of the Company.
ARTICLE
XV
LIABILITY OF
MEMBERS
Section
15.01 Liability of
Members. The
Members shall not have any liability for the obligations or liabilities of the
Company, except to the extent provided in the Act.
ARTICLE
XVI
TAX
MATTERS
Section
16.01 Fiscal
Year. The
fiscal year of the Company shall end as of the 31st day of December of each
year.
ARTICLE
XVII
GENERAL
PROVISIONS
Section
17.01 Conveyances. All
of the assets of the Company shall be held in the name of the
Company. Any deed, ▇▇▇▇ of sale, mortgage, lease, contract of sale or
other instrument purporting to convey or encumber the interest of the Company of
all or any portion of the assets of the Company shall be sufficient if signed on
behalf of the Company by an officer of the Company. No person shall
be required to inquire into the authority of any individual to sign any
instrument which is executed pursuant to this Section 17.01.
Section
17.02 Amendment. This
Agreement may be amended by a vote or consent of Members holding a majority of
capital interests in the Company, except Articles IX, X, XI and
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XV which
will require the unanimous vote or consent of all Members. Anything
herein to the contrary notwithstanding, no amendment shall be adopted or
effective if, in the opinion of counsel to the Company, it would change the
Company to an association taxable as a corporation, change the liability of or
reduce the interests of the Members, unless the affected party shall
affirmatively consent thereto, or result in any adverse securities law or other
adverse legal consequences.
Section
17.03 Anticipated
Transactions. It
is recognized that the Members and the officers have other legal and financial
relationships and that they will participate in business ventures other than the
Company that may be in direct competition with the Company.
Section
17.04 Entire
Agreement. This
Agreement and the Articles embody the entire understanding and agreement among
the Members concerning the Company and supersede any and all prior negotiations,
understandings or agreements in regard thereto.
Section
17.05 Counterparts. This
Agreement may be executed in multiple counterpart copies, each of which shall be
considered an original and all of which taken together shall constitute one and
the same instrument.
Section
17.06 Choice of
Law. This
Agreement shall be construed and interpreted according to the laws of the State
of Delaware.
Section
17.07 Binding
Effect. This
Agreement and all of the terms and provisions hereof shall be binding upon and
shall insure to the benefit of the Members and their respective heirs,
executors, administrators, trustees, successors and permitted
assigns.
Section
17.08 Gender and Number;
Person. Whenever
the context requires, the gender of all words used herein shall include the
masculine, feminine and neuter, and the number of all words shall include the
singular and plural thereof. As used herein, “person” shall mean and
include a natural person, corporation, partnership, trust, estate, limited
liability company, government unit or other entity.
Section
17.09 Members; Limited Liability
Company Agreement. As
used herein, the term “Member” or “Members” shall include all assignees and
transferees of interests who are admitted as members or persons who become
Members under the provisions of Sections 13.01 and 14.01 hereof. As
used herein, the term “this Agreement” shall include this Second Amended and
Restated Limited Liability Company Agreement as it may be amended from time to
time.
Section
17.10 Headings. All
headings and other titles and captions used in this Agreement are for
convenience only and shall not be considered in construing or interpreting any
provision of this Agreement.
Section
17.11 Waiver. Whenever
any notice is required to be given under the Act, the Articles or this
Agreement, a waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein, shall be deemed
equivalent to notice.
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IN
WITNESS OF WHICH, the undersigned has duly executed this Agreement as of the
date first set forth above.
ONEOK
Partners, L.P., a Delaware limited partnership, sole member
By: ONEOK
Partners GP, L.L.C., its general
partner
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
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