EXHIBIT 3.1
AMENDMENT NO. 1 TO
SIXTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
CROSSTEX ENERGY, L.P.
This AMENDMENT NO. 1 TO SIXTH AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF CROSSTEX ENERGY,
L.P. (this “Amendment”), dated as of December 20,
2007, is entered into by Crosstex Energy GP, LLC, a Delaware
limited liability company, the general partner of Crosstex Energy
GP, L.P., a Delaware limited partnership (the “General
Partner”), as general partner of Crosstex Energy, L.P. (the
“Partnership”). Capitalized terms used but not defined
herein are used as defined in the Sixth Amended and Restated
Agreement of Limited Partnership of Crosstex Energy, L.P., dated as
of March 23, 2007 (the “Partnership
Agreement”).
RECITALS :
WHEREAS , the NASDAQ
Marketplace Rules require that issuer securities listed on Nasdaq
be eligible for a direct registration program such as the Direct
Registration System (the “DRS”) on or before
January 1, 2008;
WHEREAS , to be eligible to
participate in the DRS, an issuer must allow for the issuance of
uncertificated securities;
WHEREAS ,
Section 13.1(d)(i) of the Partnership Agreement provides that
the General Partner may amend any provision of the Partnership
Agreement, without the approval of any Partner or Assignee to
reflect a change that, in the discretion of the General Partner,
does not adversely affect the Limited Partners (including any
particular class of Partnership Interests as compared to other
classes of Partnership Interests) in any material respect;
WHEREAS ,
Section 13.1(d)(ii)(B) of the Partnership Agreement provides
that the General Partner may amend any provision of the Partnership
Agreement, without the approval of any Partner or Assignee to
reflect a change that, in the discretion of the General Partner, is
necessary or advisable to facilitate the trading of the Units
(including the division of any class or classes of Outstanding
Units into different classes to facilitate uniformity of tax
consequences within such classes of Units) or comply with any rule,
regulation, guideline or requirement of any National Securities
Exchange on which the Units are or will be listed for trading,
compliance with any of which the General Partner determines in its
discretion to be in the best interests of the Partnership and the
Limited Partners; and
WHEREAS , acting pursuant to
the power and authority granted to it under Section 13.1(d)(i)
and Section 13.1(d)(ii)(B) of the Partnership Agreement, the
General Partner has determined that (i) this Amendment to the
Partnership Agreement does not adversely affect the Limited
Partners (including any particular class of Partnership Interests
as compared to other
classes
of Partnership Interests) in any material respect and
(ii) that this Amendment is required to facilitate the trading
of the Units and to comply with the rules, regulations, guidelines
and requirements of the NASDAQ Global Select Market on which the
Units are listed for trading and that such Amendment is in the best
interests of the Partnership and the Limited Partners.
NOW THEREFORE , the General
Partner does hereby amend the Partnership Agreement as
follows:
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1. |
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The following sentence shall be added to the end of
Section 4.1 : |
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“Notwithstanding the above provisions, Common Units may
be uncertificated.” |
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2. |
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Section 4.2 shall be amended and restated in its
entirety to read as follows: |
“(a) If any mutilated
Certificate is surrendered to the Transfer Agent, the appropriate
officers of the General Partner on behalf of the Partnership shall
execute, and the Transfer Agent shall countersign and deliver in
exchange therefor, a new Certificate or issue uncertificated Units
evidencing the same number and type of Partnership Securities as
the Certificate so surrendered.
(b) The appropriate officers of the
General Partner on behalf of the Partnership shall execute and
deliver, and the Transfer Agent shall countersign, a new
Certificate in place of any Certificate previously issued or issue
uncertificated Units if the Record Holder of the Certificate:
(i) makes proof by affidavit, in form
and substance satisfactory to the General Partner, that a
previously issued Certificate has been lost, destroyed or
stolen;
(ii) requests the issuance of a new
Certificate or the issuance of uncertificated Units before the
General Partner has notice that the Certificate has been acquired
by a purchaser for value in good faith and without notice of an
adverse claim;
(iii) if requested by the General
Partner, delivers to the General Partner a bond, in form and
substance satisfactory to the General Partner, with surety or
sureties and with fixed or open penalty as the General Partner may
reasonably direct, in its sole discretion, to indemnify the
Partnership, the Partners, the General Partner and the Transfer
Agent, against any claim that may be made on account of the alleged
loss, destruction or theft of the Certificate; and
(iv) satisfies any other reasonable
requirements imposed by the General Partner.
If a Limited Partner or Assignee
fails to notify the General Partner within a reasonable time after
he has notice of the loss, destruction or theft of a Certificate,
and a transfer of the Limited Partner Interests represented by the
Certificate is registered before the Partnership, the General
Partner or the Transfer Agent receives such notification, the
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Limited Partner
or Assignee shall be precluded from making any claim against the
Partnership, the General Partner or the Transfer Agent for such
transfer or for a new Certificate or uncertificated
Units.”
(c) As a condition to the issuance of
any new Certificate or uncertificated Units under this
Section 4.2, the General Partner may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Transfer Agent) reasonably
connected therewith.”
3. Section 4.5
shall be amended and restated in its entirety to read as
follows:
“Section 4.5
Registration and Transfer of Limited Partner
Interests.
(a) The General Partner shall keep or
cause to be kept on behalf of the Partnership a register in which,
subject to such reasonable regulations as it may prescribe and
subject to the provisions of Section 4.5(b), the Partnership
will provide for the registration and transfer of Limited Partner
Interests. The Transfer Agent is hereby appointed registrar and
transfer agent for the purpose of registering Common Units and
transfers of such Common Units as herein provided. The Partnership
shall not recognize transfers of Certificates evidencing Limited
Partner Interests or uncertificated Common Units unless such
transfers are effected in the manner described in this
Section 4.5. Upon surrender of a Certificate for registration
of transfer of any Limited Partner Interests evidenced by a
Certificate, and subject to the provisions of Section 4.5(b),
the appropriate officers of the General Partner on behalf of the
Partnership shall execute and deliver, and in the case of Common
Units, the Transfer Agent shall countersign and deliver, in the
name of the holder or the designated transferee or transferees, as
required pursuant to the holder’s instructions, one or more
new Certificates, or evidence of the issuance of uncertificated
Common Units, evidencing the same aggregate number and type of
Limited Partner Interests as was evidenced by the Certificate so
surrendered. Upon receipt of proper transfer instructions from the
registered owner of uncertificated Common Units, such
uncertificated Common Units shall be cancelled, issuance of new
equivalent uncertificated Common Units or Certificates shall be
made to the holder of Common Units entitled thereto and the
transaction shall be recorded upon the books of the
Partnership.
(b) Except as otherwise provided in
Section 4.9, the Partnership shall not recognize any transfer
of Limited Partner Interests evidenced by a Certificate until the
Certificates evidencing such Limited Partner Interests are
surrendered for registration of transfer, or a
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