Exhibit 3.1
AMENDMENT NO. 1
TO THE
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP
OF
BREITBURN ENERGY PARTNERS L.P.
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:
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:
“(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.
(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 a
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