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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:
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" 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:
(c) Section 4.7(c) of the Partnership Agreement is hereby
amended and restated to read in its entirety:
(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 .
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(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:
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(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:
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(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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(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 satisfaction of any applicable legal
and regulatory requirements, may be assigned or transferred in a
manner identical to the assignment and transfer of other Units. The
certificates will initially include a restrictive legend to the
effect that the Class C Units have not been registered under
the Securities Act or any state securities laws.
(e) Registrar and Transfer Agent. The General Partner
will act as registrar and transfer agent of the Class C
Units.
(f) Conversion. Except as provided in
Section 5.12(i) and in this Section 5.12(f), the
Class C Units are not convertible into Common Units. The
Partnership shall, pursuant to the Contribution Agreement, take
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