Exhibit 3.3.1
AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
ENERGY TRANSFER EQUITY,
L.P.
This Amendment No. 1 (this
“ Amendment ”) to the Third Amended and Restated
Agreement of Limited Partnership of Energy Transfer Equity, L.P., a
Delaware limited partnership (the “ Partnership
”), dated as of February 8, 2006 (the “
Partnership Agreement ”), is entered into effective as
of November 1, 2006, by LE GP, LLC, a Delaware limited
liability company (the “ General Partner ”), as
the general partner of the Partnership, on behalf of itself and the
Limited Partners of the Partnership. Capitalized terms used but not
defined herein are used as defined in the Partnership
Agreement.
RECITALS
WHEREAS, Section 5.8 of the
Partnership Agreement provides that the General Partner, without
the approval of any Limited Partner except as otherwise provided in
the Partnership Agreement, may, for any Partnership purpose, at any
time or from time to time, issue additional Partnership Securities
for such consideration and on such terms and conditions as shall be
established by the General Partner in its sole discretion;
and
WHEREAS, Section 13.1(d)(i) of
the Partnership Agreement provides that the General Partner,
without the approval of any Partner, may amend any provision of the
Partnership Agreement (to reflect a change that, in the discretion
of the General Partner, does not adversely affect the Unitholders
in any material respect); and
WHEREAS, Section 13.1(g) of the
Partnership Agreement provides that the General Partner, without
the approval of any Partner (subject to Section 5.9 of the
Partnership Agreement), may amend any provision of the Partnership
Agreement to reflect an amendment that, in the discretion of the
General Partner, is necessary or appropriate in connection with the
authorization of issuance of any class or series of Partnership
Securities pursuant to Section 5.8 of the Partnership
Agreement; and
WHEREAS, the Partnership has entered
into a Contribution and Conveyance Agreement, dated as of
November 1, 2006 (the “ Contribution Agreement
”), between the Partnership and Energy Transfer Investments,
L.P., a Delaware limited partnership (“ ETI ”),
pursuant to which ETI will contribute to the Partnership the 50%
Class B limited partner interest in Energy Transfer Partners GP,
L.P. owned by ETI in exchange for a new class of Partnership
Securities to be designated as “Class C Units” with
such terms as are set forth in this Amendment; and
WHEREAS, the General Partner has
determined that the creation of the Class C Units will be in the
best interests of the Partnership and beneficial to the Limited
Partners, including the holders of the Common Units; and
WHEREAS, the issuance of the Class C
Units complies with the requirements of the Partnership Agreement;
and
WHEREAS, the General Partner has
determined, pursuant to Section 13.1(j) of the Partnership
Agreement, that the amendments to the Partnership Agreement set
forth herein are necessary or appropriate in connection with the
authorization of the issuance of the Class C Units; and
NOW, THEREFORE, the Partnership
Agreement is hereby amended as follows:
Section 1. Amendments
.
(a) Section 1.1 is hereby
amended to add or amend and restate the following
definitions:
“ Class C Distribution
Increase Date ” has the meaning assigned to such term in
Section 5.12(g).
“ Class C Unit ”
means a Partnership Security representing a fractional part of the
Partnership Interests of all Limited Partners and Assignees, and
having the rights and obligations specified with respect to the
Class C Units in this Agreement. The term “Class C
Unit” does not refer to a Common Unit prior to the conversion
of a Class C Unit into a Common Unit pursuant to the terms
hereof.
“ Conversion Approval
” has the meaning assigned to such term in
Section 5.12(f).
“ Conversion Approval
Date ” has the meaning assigned to such term in
Section 5.12(f).
“ Conversion Effective
Date ” has the meaning assigned to such term in
Section 5.12(h).
“ Excess Payment
” has the meaning set forth in
Section 5.12(g).
“ Initial Common Units
” means the Common Units sold in the Initial
Offering.
“ Initial Offering
” means the initial public offering and sale of Common Units
to the public in February 2006.
“ Initial Unit Price
” means with respect to the Common Units and the Class G
Units, the initial public offering price per Common Unit at which
the Common Units were sold to the public in the Initial
Offering.
“ Issue Price ”
means the price at which a Unit is purchased from the Partnership,
after taking into account any sales commission or underwriting
discount charged to the Partnership and after taking into account
any other form of discount with respect to the price at which a
Unit is purchased from the Partnership.
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“ Remaining Net Positive
Adjustments ” means, as of the end of any taxable period,
(i) with respect to the Unitholders holding Common Units,
Class B Units or Class C Units, the excess of
(a) the Net Positive Adjustments of the Unitholders holding
Common Units, Class B Units or Class C Units as of the
end of such period over (b) the sum of those Partners’
Share of Additional Book Basis Derivative Items for each prior
taxable period and (ii) with respect to the General Partner
(as holder of the General Partner Interest), the excess of
(a) the Net Positive Adjustments of the General Partner as of
the end of such period over (b) the sum of the General
Partner’s Share of Additional Book Basis Derivative Items
with respect to the General Partner Interest for each prior taxable
period.
“ Share of Additional Book
Basis Derivative Items ” means, in connection with any
allocation of Additional Book Basis Derivative Items for any
taxable period, (i) with respect to the Unitholders holding
Common Units, Class B Units or Class C Units, the amount
that bears the same ratio to such Additional Book Basis Derivative
Items as the Unitholders’ Remaining Net Positive Adjustments
as of the end of such period bears to the Aggregate Remaining Net
Positive Adjustments as of that time and (ii) with respect to
the General Partner (as holder of the General Partner Interest),
the amount that bears the same ratio to such Additional Book Basis
Derivative Items as the General Partner’s Remaining Net
Positive Adjustments as of the end of such period bears to the
Aggregate Remaining Net Positive Adjustment as of that
time.
“ Outstanding ”
means, with respect to Partnership Securities, all Partnership
Securities that are issued by the Partnership and reflected as
outstanding on the Partnership’s books and records as of the
date of determination; provided , however , that if
at any time any Person or Group (other than the General Partner or
its Affiliates) beneficially owns 20% or more of any Outstanding
Partnership Securities of any class then Outstanding, all
Partnership Securities owned by such Person or Group shall not be
voted on any matter and shall not be considered to be Outstanding
when sending notices of a meeting of Limited Partners to vote on
any matter (unless otherwise required by law), calculating required
votes, determining the presence of a quorum or for other similar
purposes under this Agreement, except that Common Units so owned
shall be considered to be Outstanding for purposes of
Section 11.1(b)(iv) (such Common Units shall not,
however, be treated as a separate class of Partnership Securities
for purposes of this Agreement); provided , further ,
that the limitation in the foregoing proviso shall not apply
(i) to any Person or Group who acquired 20% or more of any
Outstanding Partnership Securities of any class then Outstanding
directly from the General Partner or its Affiliates, (ii) to
any Person or Group who acquired 20% or more of any Outstanding
Partnership Securities of any class then Outstanding directly or
indirectly from a Person or Group described in clause (i) if
the General Partner shall have notified such Person or Group in
writing, prior to such acquisition, that such limitation shall not
apply to such Person or Group or (iii) to any Person or Group
who acquired 20% or more of any Partnership Securities issued by
the Partnership with the prior approval of the Board of Directors
of the General Partner; and provided, further , that none
of
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the Class C Units shall be deemed to
be Outstanding for purposes of determining if any Class C Units are
entitled to distributions of Available Cash unless such Class C
Units shall have been reflected on the books of the Partnership as
outstanding during such Quarter and on the Record Date for the
determination of any distribution of Available Cash.
“ Unrecovered Capital
” means at any time, with respect to a Unit, the Initial Unit
Price less the sum of all distributions made in respect of an
Initial Common Unit and any distributions of cash (or the Net
Agreed Value of any distributions in kind) in connection with the
dissolution and liquidation of the Partnership theretofore made in
respect of an Initial Common Unit, adjusted as the General Partner
determines to be appropriate to give effect to any distribution,
subdivision or combination of such Units.
(b) Section 1.1 of the
Partnership Agreement is hereby further amended to amend and
restate the final sentence of the definition of “Common
Unit” as follows:
“The term “Common
Unit” does not refer to a Class C Unit prior to its
conversion into a Common Unit pursuant to the terms
hereof.”
(c) Section 4.7(c) of the
Partnership Agreement is hereby amended and restated to read in its
entirety:
“(c) The transfer of a
Class B Unit that has converted into a Common Unit shall be
subject to the restrictions imposed by Section 6.4(b). The
transfer of a Class C Unit shall be subject to the
restrictions imposed by Section 6.5.”
(d) Article V is hereby amended
to add a new Section 5.12 creating a new series of Units as
follows:
“Section 5.12 Establishment
of Class C Units .
(a) General. The General
Partner hereby designates and creates a class of Units to be
designated as “Class C Units” and consisting of a
total of 83,148,900 Class C Units, and fixes the designations,
preferences and relative, participating, optional or other special
rights, powers and duties of holders of the Class C Units as
set forth in this Section 5.12.
(b) Rights of Class C
Units. During the period commencing upon issuance of the
Class C Units and ending on the Conversion Effective Date (or
that later time specified in this Section 5.12(b)), unless
amended pursuant to Section 5.12(i) hereof:
(i) Allocations. Except as
otherwise provided in this Agreement, all items of Partnership
income, gain, loss, deduction and credit shall be allocated to the
Class C Units to the same extent as such items would be so
allocated if such Class C Units were Common Units that were
then Outstanding.
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(ii) Distributions. Except as
otherwise provided in this Agreement, the Class C Units shall have
the right to share in partnership distributions on a pro rata basis
with the Common Units, so that the amount of any Partnership
distribution to each Common Unit will equal the amount of such
distribution to each Class C Unit; provided , however
, in the event that the Partnership would not have available cash
with respect to any Quarter sufficient to distribute $0.175 (the
“ Initial Quarterly Distribution Amount ”) in
respect of each Common Unit, Class B Unit and Class C Unit or there
shall exist in respect of any Quarter, a Cumulative Common Unit
Arrearage, then Available Cash with respect to such Quarter shall,
subject to Section 17–607 of the Delaware Act, be
distributed as follows:
(A) First, to the Unitholders
holding Common Units and Class B Units and to the General Partner,
in proportion to their respective Percentage Interests, until there
has been distributed in respect of each Common Unit and Class B
Unit then outstanding an amount equal to the Initial Quarterly
Distribution Amount for such Quarter;
(B) Second, to the Unitholders
holding Common Units and Class B Units and to the General Partner,
in proportion to their respective Percentage Interests, until there
has been distributed in respect of each Common Unit and Class B
Unit then outstanding an amount equal to the Cumulative Common Unit
Arrearage;
(C) Third, to the Unitholders
holding Class C Units and to the General Partner, in proportion to
their respective Percentage Interests.
The following definitions shall be
applied to the terms used in this Section 5.12(b):
“ Common Unit Arrearage
” means, with respect to any Common Unit, whenever issued, as
to any Quarter ending on or prior to the Conversion Effective Date
as to which distributions are made pursuant to the proviso to
Section 5.12(b)(ii), the excess, if any, of (a) the
Initial Quarterly Distribution Amount with respect to such Common
Unit in respect of such Quarter over (b) the sum of all
Available Cash distributed with respect to such Common Unit in
respect of such quarter pursuant to clause (A) of the proviso
to Section 5.12(b)(ii).
“ Cumulative Common Unit
Arrearage ” means, with respect to any Common Unit,
whenever issued, and as of the end of any Quarter, the excess, if
any, of (a) the sum resulting from adding together the Common
Unit Arrearage for each of the Quarters ending on or prior to
the
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Conversion Effective Date over
(b) the sum of any distributions theretofore made pursuant to
clause (B) of the proviso to
Section 5.12(b)(ii).
(c) Voting Rights. The
Class C Units will have such voting rights pursuant to the
Partnership Agreement as such Class C Units would have if they
were Common Units that were then Outstanding, except that
(i) with respect to Conversion Approval, none of the
Class C Units shall be deemed Outstanding as of the record
date for such vote or be entitled to vote thereon and
(ii) other than with respect to Conversion Approval, the
Class C Units shall be entitled to vote as a separate class on
any matter that adversely affects the rights or preferences of the
Class C Units in relation to other classes of Partnership
Interests or as required by law. The approval of a majority of the
Class C Units shall be required to approve any matter for
which the holders of the Class C Units are entitled to vote as
a separate class. Each Class C Unit will be entitled to the
number of votes equal to the number of Common Units into which a
Class C Unit is convertible at the time of the record date for
the vote or written consent on the matter.
(d) Certificates . The
Class C Units will be evidenced by certificates in
substantially the form of Exhibit A to this Amendment, subject to
the satisf
