Exhibit 3.1
AMENDMENT NO. 1 TO FOURTH
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF ENBRIDGE
ENERGY PARTNERS L.P.
This AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF ENBRIDGE ENERGY PARTNERS, L.P. (this “
Amendment ”) dated as of December 28, 2007 is
adopted by Enbridge Energy Company, Inc., a Delaware
corporation, as the General Partner of Enbridge Energy Partners,
L.P., a Delaware limited partnership (the “
Partnership ”).
PRELIMINARY
STATEMENT.
WHEREAS , the General Partner and the other
parties thereto entered into that certain Agreement of Limited
Partnership of the Partnership on December 19, 1991 (the
“ Original Agreement “); and
WHEREAS , the General Partner amended and
restated the Original Agreement, as evidenced by that certain
Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of December 27, 1991 (the “
First Amended and Restated Agreement “);
and
WHEREAS , the General Partner, acting
pursuant to Section 15.1 of the First Amended and Restated
Agreement, amended and restated the First Amended and Restated
Agreement, as evidenced by that certain Amended and Restated
Agreement of Limited Partnership of the Partnership dated as of
April 15, 1997 (the “ Second Amended and Restated
Agreement “); and
WHEREAS , the General Partner, acting
pursuant to Section 15.1 of the Second Amended and Restated
Agreement, amended the Second Amended and Restated Agreement, as
evidenced by that certain Amendment to Amended and Restated
Agreement of Limited Partnership of the Partnership, dated as of
August 28, 2001 (the “ Amendment Agreement
“); and
WHEREAS , the General Partner, acting
pursuant to Section 15.1 of the Second Amended and Restated
Agreement, as amended, amended and restated the Second Amended and
Restated Agreement, as evidenced by that certain Third Amended and
Restated Agreement of Limited Partnership of the Partnership, dated
as of October 17, 2002 (the “ Third Amended and
Restated Agreement “); and
WHEREAS , the General Partner, acting
pursuant to Section 15.1 of the Third Amended and Restated
Agreement, as amended, amended and restated the Second Amended and
Restated Agreement, as evidenced by that certain Third Amended and
Restated Agreement of Limited Partnership of the Partnership, dated
as of August 15, 2006 (the “ Fourth Amended and
Restated Agreement “); and
WHEREAS , pursuant to the authority granted
to the General Partner in the Fourth Amended and Restated
Agreement, the General Partner desires to amend the Fourth Amended
and Restated Agreement to provide for the issuance of
uncertificated Units in order to comply with the New York Stock
Exchange Listed Company Rule 500.00(B) requiring that, on
and after January 1, 2008 , all securities listed on the New
York Stock Exchange must be eligible for a direct registration
system operated by a securities depository; and
WHEREAS , Sections 4.4 and 15.1 of the Fourth
Amended and Restated Agreement permit the General Partner, without
the approval of any Limited Partner or Assignee, to amend the
Fourth Amended and Restated Agreement as provided
herein.
NOW, THEREFORE
, the General Partner does
hereby amend the Fourth Amended and Restated Agreement to provide,
as follows:
1
SECTION 1.
DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein are
used with the meanings assigned thereto in the Fourth Amended and
Restated Agreement.
SECTION 2.
AMENDMENTS TO THE FOURTH AMENDED AND RESTATED PARTNERSHIP
AGREEMENT.
§2.1
Amendment to Sections
4.4(a) and (b) . Sections 4.4(a) and
(b) of the Fourth Amended and Restated Agreement are hereby
amended and restated in their entirety as follows:
(a)
Subject to Section 4.4(c), the General Partner is hereby
authorized to cause the Partnership to issue, in addition to the
Units issued heretofore by the Partnership, such additional Units,
or classes or series thereof, or options, rights, warrants or
appreciation rights relating thereto, or any other type of equity
security that the Partnership may lawfully issue, or any unsecured
or secured debt obligations of the Partnership or debt obligations
of the Partnership convertible into any class or series of equity
securities of the Partnership (collectively, “ Partnership
Securities ”), for any Partnership purpose, at any time
or from time to time, to the Partners or to other Persons for such
consideration and on such terms and conditions as shall be
established by the General Partner in its sole discretion, all
without the approval of any Limited Partners. The General
Partner shall have sole discretion, subject to the guidelines set
forth in this Section 4.4 and the requirements of the Delaware
Act, in determining the consideration and terms and conditions with
respect to any future issuance of Partnership Securities.
Partnership Securities may be represented by a Certificate, as
provided in Section 10.1 hereof.
(b)
Notwithstanding any provision of this Agreement to the contrary,
additional Partnership Securities to be issued by the Partnership
pursuant to this Section 4.4 shall be issuable from time to
time in one or more classes, or one or more series of any of such
classes, with such designations, preferences and relative,
participating, optional or other special rights, powers and duties,
including, without limitation, rights, powers and duties senior to
existing classes and series of Partnership Securities, all as shall
be fixed by the General Partner in the exercise of its sole and
complete discretion, subject to Delaware law, including, without
limitation, (i) the allocations of items of Partnership
income, gain, loss, deduction and credit to each such class or
series of Partnership Securities; (ii) the right of each such
class or series of Partnership Securities to share in Partnership
distributions; (iii) the rights of each such class or series
of Partnership Securities upon dissolution and liquidation of the
Partnership; (iv) whether such class or series of Partnership
Securities is redeemable by the Partnership and, if so, the price
at which, and the terms and conditions upon which, such class or
series of Partnership Securities may be redeemed by the
Partnership; (v) whether such class or series of Partnership
Securities is issued with the privilege of conversion and, if so,
the rate at which, and the terms and conditions upon which, such
class or series of Partnership Securities may be converted into any
other class or series of Partnership Securities; (vi) the
terms and conditions upon which each such class or series of
Partnership Securities will be issued, evidenced by Certificates
, or other evidence of the issuance of uncertificated Units,
and assigned or transferred; and (vii) the right, if any, of
each such class or series of Partnership Securities to vote on
Partnership matters, including, without limitation, matters
relating to the relative rights, preferences and privileges of each
such class or series.
2
§2.2
Amendment to
Section 4.11(c) . Section 4.11(c) of the Fourth
Amended and Restated Agreement is hereby amended and restated in
its entirety as follows:
(c)
Promptly following any such distribution, subdivision or
combination, the General Partner may cause Certificates, or other
evidence of the issuance of uncertificated Units, to be issued to
the Record Holders of Units as of the applicable Record Date
representing the new number of Units held by such Record Holders,
or the General Partner may adopt such other procedures as it may
deem appropriate to reflect such distribution, subdivision or
combination; provided, however, if any such distribution,
subdivision or combination results in a smaller total number of
Units Outstanding, the General Partner shall require, as a
condition to the delivery to a Record Holder of such new
Certificate, or other evidence of the issuance of uncertificated
Units, the surrender of any Certificate, or other evidence of the
issuance of uncertificated Units, held by such Record Holder
immediately prior to such Record Date.
§2.3
Amendment to
Section 10.1(a) . Section 10.1(a) of
the Fourth Amended and Restated Agreement is hereby amended and
restated in its entirety as follows:
(a)
Upon the Partnership’s issuance of Common Units to any
Person, the Partnership shall issue, upon the request of such
Person, one or more Certificates in the name of such Person
evidencing the number of such Units being so issued.
Certificates shall be executed on behalf of the Partnership by the
General Partner. No Class A Common Unit Certificate
shall be valid for any purpose until it has been countersigned by
the Transfer Agent; provided, however, that the Units may be
certificated or uncertificated as provided in the Delaware
Act.
§2.3
Amendment to
Section 10.2 . Section 10.2 of the Fourth
Amended and Restated Agreement is hereby amended and restated in
its entirety as follows:
(a)
The General Partner shall cause to be kept on behalf of the
Partnership a register (the “ Unit Register “)
in which, subject to such reasonable regulations as it may
prescribe and subject to the provisions of Section 10.2(b),
the Gen
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