Exhibit 3.1
AMENDMENT
NO. 2
TO THE
FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
MAGELLAN MIDSTREAM HOLDINGS,
L.P.
This Amendment No. 2 to the
Fourth Amended and Restated Agreement of Limited Partnership of
Magellan Midstream Holdings, L.P., a Delaware limited partnership
(the “ Partnership ”), dated as of
December 1, 2008 (this “ Amendment ”), is
made and entered into by Magellan Midstream Holdings 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 Fourth Amended
and Restated Agreement of Limited Partnership of the Partnership,
dated as of February 15, 2006 (as amended, 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 the General
Partner;
WHEREAS, simultaneously with the effectiveness of this
Amendment, the General Partner Interest is ceasing to be an
economic interest in the Partnership; however, the General Partner
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. 2 hereto, Magellan Midstream Holdings 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. All references to
“General Partner Units” shall be deemed to refer to the
General Partner Interest, except that the phrase “General
Partner Units” in the definitions of “Partnership
Security” and “Units” shall be deleted and the
wording of such definitions appropriately modified.
4. The definition of the term
“Outstanding” in Section 1.1 of the LP Agreement
is hereby amended in its entirety to read as follows:
““ 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, subject to 13.4(iii), 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 foregoing
limitation 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) provided that the General Partner shall have
notified such Person or Group in writing that such limitation shall
not apply 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.
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5. 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.”
6. Section 5.2 of the LP
Agreement is hereby deleted in its entirety.
7. Section 5.9 of the LP
Agreement is hereby amended in its entirety to read as
follows:
“Section 5.9 Limited
Preemptive Right.
Except as otherwise provided in a
separate agreement by the Partnership, 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.”
8. Section 13.4 of the LP
Agreement is hereby amended by deleting the word
“Special” from the heading thereof, 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 April 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
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limited liability under the Delaware
Act or the law of any other state in which the Partnership is
qualified to do business.
(iii) 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.
For the purposes of voting for Directors, the proviso contained in
the definition of “Outstanding” in Section 1.1 of
this Agreement shall not apply, so that all Units reflected as
outstanding on the Partnership’s books and records as of the
date of determination can be voted in the election of Directors
except to the extent prohibited by law or this paragraph
13.4(b)(iii).
(iv) The number of Directors that
shall constitute the whole Board of Directors of the General
Partner shall not be less than four 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 III and if the fraction is two-thirds, one of the
extra directors shall
