AMENDMENT NO. 1 TO THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BREITBURN ENERGY PARTNERS L.P.
Exhibit
3.1
AMENDMENT
NO. 1
TO
THE
OF
This
Amendment No. 1 to the First Amended and Restated Agreement of Limited
Partnership of BreitBurn Energy Partners L.P., a Delaware limited partnership
(the “Partnership”),
dated
as of June 17, 2008 (this “Amendment”),
is
made and entered into by BreitBurn GP, LLC, a Delaware limited liability
company, as general partner of the Partnership (the “General
Partner”)
and as
the lawful agent and attorney-in-fact for and on behalf of each of the limited
partners of the Partnership. Capitalized terms used herein and not otherwise
defined are used as defined in the First Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of October 10, 2006 (the
“LP
Agreement”).
W
I T N E S S E T H
WHEREAS,
the
Partnership is a Delaware limited partnership that was formed under the Delaware
Revised Uniform Limited Partnership Act, 6 Del.
C.§
17-101,
et seq.,
and is
currently governed by the LP Agreement;
WHEREAS,
immediately prior to the effectiveness of this Amendment, the Partnership has
acquired 100% of the outstanding limited liability company interests in
BreitBurn Management Company, LLC (“BreitBurn
Management”);
WHEREAS,
immediately
prior to the effectiveness of this Amendment, BreitBurn Management distributed
and assigned 100% of the limited liability company interests in the General
Partner to the Partnership;
WHEREAS,
simultaneously with the effectiveness of this Amendment, the General Partner
Interest is ceasing to be an economic interest in the Partnership; however,
BreitBurn GP, LLC is continuing to be the general partner of the Partnership;
WHEREAS,
the
General Partner desires to amend the LP Agreement as set forth herein pursuant
to and in accordance with Section 13.1 of the LP Agreement; and
WHEREAS,
this
Amendment is intended to provide Limited Partners with a meaningful right to
vote in the election of directors of the General Partner; however, for the
avoidance of doubt, this Amendment is not intended to change in any manner
the
requirement, as set forth in Section 13.2 of the LP Agreement, that amendments
to the LP Agreement may be proposed only by the General Partner.
NOW,
THEREFORE,
intending to be legally bound, the General Partner, on its own behalf and on
behalf of all Limited Partners, agrees as follows:
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I.
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AMENDMENTS.
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The
LP
Agreement is amended as follows:
1. Section
1.1 of the LP Agreement is hereby amended by inserting thereto the following
new
definition in the appropriate alphabetical order that reads as
follows:
““Directors”
shall
mean the members of the Board of Directors.”
2. The
definition of the term “General Partner Interest” set forth in Section 1.1 of
the LP Agreement is hereby amended in its entirety to read as
follows:
““General
Partner Interest”
means
the management interest of the General Partner in the Partnership in its
capacity as a general partner. The General Partner Interest does not have any
rights to ownership, profit or any rights to receive distributions from
operations or the liquidation of the Partnership. For the avoidance of doubt,
it
is hereby confirmed that upon the effectiveness of Amendment No. 1 hereto,
BreitBurn GP, LLC continues as the general partner of the Partnership without
holding any economic interest in the Partnership and the business of the
Partnership is continued without dissolution.”
3. The
definition of the term “General Partner Unit” in Section 1.1 of the LP Agreement
is hereby deleted in its entirety.
4. The
definition of the term “Percentage Interest” in Section 1.1 of the LP Agreement
is hereby amended in its entirety to read as follows:
““Percentage
Interest”
means
as of any date of determination (a) as to any Unitholder or Assignee with
respect to Units, the product obtained by multiplying (i) 100% less the
percentage applicable to clause (b) below by (ii) the quotient obtained by
dividing (A) the number of Units held by such Unitholder or Assignee by (B)
the
total number of outstanding Units, and (b) as to the holders of other
Partnership Securities issued by the Partnership in accordance with Section
5.6,
the percentage established as a part of such issuance. The Percentage Interest
with respect to the General Partner Interest shall at all times be
zero.”
5. Section
5.2(c) of the LP Agreement is hereby deleted in its entirety.
6. Section
5.7 of the LP Agreement is hereby amended in its entirety to read as
follows:
“Section
5.7 Limited
Preemptive Right.
No
Person
shall have any preemptive, preferential or other similar right with respect
to
the issuance of any Partnership Security, whether unissued, held in the treasury
or hereafter created.”
7. Section
13.4 of the LP Agreement is hereby amended by designating the first paragraph
thereof as subsection “(a)” and by inserting a new subsection (b) thereof that
reads as follows:
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“(b) (i) An
annual
meeting of the Limited Partners holding Units for the election of Directors
to
the Board of Directors and such other matters as the General Partner shall
submit to a vote of the Limited Partners holding Units shall be held in July
of
each year beginning in 2009 or at such other date and time as may be fixed
from
time to time by the General Partner at such place within or without the State
of
Delaware as may be fixed from time to time by the General Partner and all as
stated in the notice of the meeting. Notice of the annual meeting shall be
given
in accordance with Section 13.5 not less than 10 days nor more than 60 days
prior to the date of such meeting.
(ii) The
Limited Partners holding Units shall vote together as a single class for the
election of Directors to the Board of Directors. The Limited Partners entitled
to vote shall elect by a plurality of the votes cast at such meeting persons
to
serve on the Board of Directors of the General Partner who are nominated in
accordance with the provisions of this Section 13.4(b). The exercise by a
Limited Partner of the right to elect the Directors and any other rights
afforded to such Limited Partner under this Section 13.4(b) shall be in such
Limited Partner’s capacity as a limited partner of the Partnership and shall not
cause a Limited Partner to be deemed to be taking part in the management and
control of the business and affairs of the Partnership so as to jeopardize
such
Limited Partner’s limited liability under the Delaware Act or the law of any
other state in which the Partnership is qualified to do business.
(iii)
Solely
with respect to the election of Directors to the Board of Directors, (A) the
General Partner and the Partnership shall not be entitled to vote Units that
are
otherwise entitled to vote at any meeting of the Unitholders, and (B) if at
any
time any Person or Group beneficially owns 20% or more of the Outstanding
Partnership Securities of any class then Outstanding, then all Partnership
Securities owned by such Person or Group in excess of 20% of the Outstanding
Partnership Securities of the applicable class shall not be voted, and in each
case, the foregoing Units shall not be counted when calculating the required
votes for such matter and shall not be deemed to be Outstanding for purposes
of
determining a quorum for such meeting pursuant to Section 13.9 (but such Units
shall not, however, be treated as a separate class of Partnership Securities
for
purposes of this Agreement). Notwithstanding the foregoing sentence, the Board
of Directors of the General Partner may, by action specifically referencing
votes for the election of Directors under this Section 13.4(b), determine that
the limitation set forth in clause (B) of the preceding sentence shall not
apply
to a specific Person or Group.
(iv) The
number of Directors that shall constitute the whole Board of Directors of the
General Partner shall not be less than five and not more than nine as shall
be
established from time to time by a resolution adopted by a majority of the
Directors. The
Board
of Directors shall be divided into three classes, Class I, Class II, and Class
III. The number of Directors in each class shall be the whole number contained
in the quotient arrived at by dividing the authorized number of Directors by
three, and if a fraction is also contained in such quotient, then if such
fraction is one-third, the extra director shall be a member of Class I and
if
the fraction is two-thirds, one of the extra directors shall be a member of
Class I and the other shall be a member of Class II. Each Director shall serve
for a term ending as provided herein; provided, however, that the Directors
designated in the Second Amended and Restated Limited Liability Company
Agreement of the General Partner (the “General Partner Agreement”) to Class I
shall serve for an initial term that expires at the annual meeting of Limited
Partners held in 2009, the Directors designated in the General Partner Agreement
to Class II shall serve for an initial term that expires at the annual meeting
of Limited Partners held in 2010, and the Directors designated in the General
Partner Agreement to Class III shall serve for an initial term that expires
at
the annual meeting of Limited Partners held in 2011. At each succeeding annual
meeting of Limited Partners beginning with the annual meeting held in 2009,
successors to the class of Directors whose term expires at that annual meeting
shall be elected for a three-year term.
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(v) Each
Director shall hold office for the term for which such Director is elected
and
thereafter until such Director’s successor shall have been duly elected and
qualified, or until such Director’s earlier death, resignation or removal. If
the number of Directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of Directors in
each
class as nearly equal as possible, and any additional Director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class,
but
in no case will a decrease in the number of Directors shorten the term of any
incumbent Director. A Director shall hold office until the annual meeting of
the
Limited Partners of the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, to death, resignation
or
removal from office. Any vacancy on the Board of Directors (including, without
limitation, any vacancy caused by an increase in the number of Directors on
the
Board of Directors) may only be filled by a majority of the Directors then
in
office, even if less than a quorum, or by a sole remaining Director. Any
Director elected to fill a vacancy not resulting from an increase in the number
of Directors shall have the same remaining term as that of his predecessor.
A
Director may be removed only for cause and only upon a vote of the majority
of
the remaining Directors then in office.
(vi) (A) (1)
Nominations of persons for election to the Board of Directors of the General
Partner may be made at an annual meeting of the Limited Partners only (a)
pursuant to the General Partner’s notice of meeting (or any supplement thereto),
(b) by or at the direction of the Board of Directors or any committee thereof
or
(c) by any Limited Partner who was a Record Holder at the time the notice
provided for in this Section 13.4(b)(vi) is delivered to the General Partner,
who is entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 13.4(b)(vi).
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(2) For
any
nominations brought before an annual meeting by a Limited Partner pursuant
to
clause (c) of paragraph (A)(1) of this Section 13.4(b)(vi), the Limited Partner
must have given timely notice thereof in writing to the General Partner. To
be
timely, a Limited Partner’s notice shall be delivered to the General Partner not
later than the close of business on the ninetieth (90th)
day,
nor earlier than the close of business on the one hundred twentieth (120th)
day,
prior to the first anniversary of the preceding year’s annual meeting (provided,
however, that in the event that the date of the annual meeting is more than
thirty (30) days before or more than seventy (70) days after such anniversary
date, notice by the Limited Partner must be so delivered not earlier than the
close of business on the one hundred twentieth (120th) day prior to such annual
meeting and not later than the close of business on the later of the ninetieth
(90th)
day
prior to such annual meeting or the tenth (10th)
day
following the day on which public announcement of the date of such meeting
is
first made by the Partnership or the General Partner). For purposes of the
2009
annual meeting, the first anniversary of the preceding year’s annual meeting
shall be deemed to be July 30, 2009. In no event shall the public announcement
of an adjournment or postponement of an annual meeting commence a new time
period (or extend any time period) for the giving of a Limited Partner’s notice
as described above. Such Limited Partner’s notice shall set forth: (a) as to
each person whom the Limited Partner proposes to nominate for election as a
Director (i) all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to and in accordance
with Regulation 14A under the Securities Exchange Act and (ii) such person’s
written consent to being named in the proxy statement as a nominee and to
serving as a Director if elected; and (b) as to the Limited Partner giving
the
notice and the beneficial owner, if any, on whose behalf the nomination is
made
(i) the name and address of such Limited Partner, as they appear on the
Partnership’s books and records, and of such beneficial owner, (ii) the class or
series and number of Units which are owned beneficially and of record by such
Limited Partner and such beneficial owner, (iii) a description of any agreement,
arrangement or understanding with respect to the nomination between or among
such Limited Partner and such beneficial owner, any of their respective
Affiliates or associates, and any others acting in concert with any of the
foregoing, (iv) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options,
warrants, stock appreciation or similar rights, hedging transactions, and
borrowed or loaned Units) that has been entered into as of the date of the
Limited Partner’s notice by, or on behalf of, such Limited Partner and such
beneficial owners, the effect or intent of which is to mitigate loss to, manage
risk or benefit of Unit price changes for, or increase or decrease the voting
power of, such Limited Partner and such beneficial owner, with respect to Units,
(v) a representation that the Limited Partner is a Record Holder entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting
to propose such nomination, and (vi) a representation whether the Limited
Partner or the beneficial owner, if any, intends or is part of a group which
intends (a) to deliver a proxy statement and/or form of proxy to holders of
at
least the percentage of the Partnership’s Outstanding Units required to elect
the nominee and/or (b) otherwise to solicit proxies from Limited Partners in
support of such nomination. The General Partner may require any proposed nominee
to furnish such other information as it may reasonably require to determine
the
eligibility of such proposed nominee to serve as a Director of the General
Partner.
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(B) Nominations
of persons for election to the Board of Directors may be made at a special
meeting of Limited Partners at which Directors are to be elected pursuant to
the
General Partner’s notice of meeting (1) by or at the direction of the Board of
Directors or any committee thereof or (2) provided that the Board of Directors
or the Limited Partners pursuant to Section 13.4(a) hereof has determined that
Directors shall be elected at such meeting, by any Limited Partner who is a
Record Holder at the time the notice provided for in this Section 13.4(b)(vi)
is
delivered to the General Partner, who is entitled to vote at the meeting and
upon such election and who complies with the notice procedures set forth in
this
Section 13.4(b)(vi). In the event the General Partner calls a special meeting
of
Limited Partners for the purpose of electing one or more Directors to the Board
of Directors, any such Limited Partner entitled to vote in such election of
Directors may nominate a person or persons (as the case may be) for election
to
such position(s) as specified in the General Partner’s notice of meeting, if the
Limited Partner’s notice required by paragraph (A)(2) of this Section
13.4(b)(vi) shall be delivered to the General Partner not earlier than the
close
of business on the one hundred twentieth (120th)
day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90th)
day
prior to such special meeting or the tenth (10th)
day
following the day on which public announcement is first made of the date of
the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period
(or
extend any time period) for the giving of a Limited Partner’s notice as
described above.
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(C) (1) Only
such
persons who are nominated in accordance with the procedures set forth in this
Section 13.4(b)(vi) shall be eligible to be elected at an annual or special
meeting of Limited Partners to serve as Directors. Except as otherwise provided
by law, the chairman designated by the General Partner pursuant to Section
13.10
shall have the power and duty (a) to determine whether a nomination was made
in
accordance with the procedures set forth in this Section 13.4(b)(vi) (including
whether the Limited Partner or beneficial owner, if any, on whose behalf the
nomination is made solicited (or is part of a group which solicited) or did
not
so solicit, as the case may be, proxies in support of such Limited Partner’s
nominee in compliance with such Limited Partner’s representation as required by
clause (A)(2)(b)(vi) of this Section 13.4(b)(vi)) and (b) if any proposed
nomination was not made in compliance with this Section 13.4(b)(vi), to declare
that such nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 13.4(b)(vi), unless otherwise required by law, if
the
Limited Partner (or a qualified representative of the Limited Partner) does
not
appear at the annual or special meeting of Limited Partners to present a
nomination, such nomination shall be disregarded notwithstanding that proxies
in
respect of such vote may have been received by the General Partner or the
Partnership. For purposes of this Section 13.4(b)(vi), to be considered a
qualified representative of the Limited Partner, a person must be a duly
authorized officer, manager or partner of such Limited Partner or must be
authorized by a writing executed by such Limited Partner or an electronic
transmission delivered by such Limited Partner to act for such Limited Partner
as proxy at the meeting of Limited Partners and such person must produce such
writing or electronic transmission, or a reliable reproduction of the writing
or
electronic transmission, at the meeting of Limited Partners.
(2) For
purposes of this Section 13.4(b)(vi), “public announcement” shall include
disclosure in a press release reported by the Dow ▇▇▇▇▇ News Service, Associated
Press or other national news service or in a document publicly filed by the
Partnership or the General Partner with the Commission pursuant to Section
13,
14 or 15(d) of the Securities Exchange Act.
(3) Notwithstanding
the foregoing provisions of this Section 13.4(b)(vi), a Limited Partner shall
also comply with all applicable requirements of the Securities Exchange Act
and
the rules and regulations thereunder with respect to the matters set forth
in
this Section 13.4(b)(vi); provided however, that any references in this
Agreement to the Securities Exchange Act or the rules promulgated thereunder
are
not intended to and shall not limit any requirements applicable to nominations
pursuant to this Section 13.4(b)(vi) (including paragraphs A(1)(c) and B
hereof), and compliance with paragraphs A(1)(c) and B of this Section
13.4(b)(vi) shall be the exclusive means for a Limited Partner to make
nominations.
(vii) This
Section 13.4(b) shall not be deemed in any way to limit or impair the ability
of
the Board of Directors to adopt a “poison pill” or unitholder or other similar
rights plan with respect to the Partnership, whether such poison pill or plan
contains “dead hand” provisions, “no hand” provisions or other provisions
relating to the redemption of the poison pill or plan, in each case as such
terms are used under Delaware common law.
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(viii) The
Partnership and the General Partner shall use their commercially reasonable
best
efforts to take such action as shall be necessary or appropriate to give effect
to and implement the provisions of this Section 13.4(b), including, without
limitation, amending the organizational
documents of the General Partner such that at all times the organizational
documents of the General Partner shall provide (i) that the Directors shall
be
elected in accordance with the terms of this Agreement, and (ii) terms
consistent with this Section 13.4(b).
(ix) If
the
General Partner delegates to an existing or newly formed wholly owned Subsidiary
the power and authority to manage and control the business and affairs of the
Partnership Group, the foregoing provisions of this Section 13.4(b) shall be
applicable with respect to the Board of Directors or other governing body of
such Subsidiary.”
8. Section
13.9 of the LP Agreement is hereby amended to replace the word “The” at the
beginning of the first sentence thereof with the following:
“Subject
to Section 13.4(b), the”.
9. The
parenthetical set forth in Section 13.12(a) of the LP Agreement is hereby
amended in its entirety to read as follows:
“(and
subject to the limitations contained in the definition of “Outstanding” and the
limitations set forth in Section 13.4(b))”.
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II.
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MISCELLANEOUS.
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1. Successors
and Assigns.
This
Amendment shall be binding upon, and shall enure to the benefit of, each of
the
Partners, and its respective successors and assigns.
2. Full
Force and Effect.
Except
to the extent modified hereby, the LP Agreement shall remain in full force
and
effect.
3. Governing
Law.
This
Amendment shall be interpreted in accordance with the laws of the State of
Delaware (without regard to conflict of laws principles), all rights and
remedies being governed by such laws.
4. Execution
in Counterparts.
This
Amendment may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed
as of the day and year first above written.
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GENERAL
PARTNER:
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BREITBURN
GP, LLC
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. Washburn___ | |
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title:
Co-Chief Executive Officer
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LIMITED
PARTNERS:
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ALL
LIMITED PARTNERS PREVIOUSLY ADMITTED TO THE PARTNERSHIP THAT CONTINUE
TO
BE LIMITED PARTNERS ON THE DATE HEREOF:
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By:
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BreitBurn
GP, LLC, as attorney-in-fact pursuant to the power of attorney granted
under Section 2.6 of the LP Agreement
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By: /s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title:
Co-Chief Executive Officer
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