LIMITED LIABILITY COMPANY AGREEMENT OF BREITBURN GP, LLC
Exhibit
3.2
Execution
Version
FOURTH
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
TABLE
OF CONTENTS
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Page
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DEFINITIONS
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1
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Section
1.1
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Definitions
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1
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Section
1.2
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Construction
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4
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ARTICLE
II
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ORGANIZATION
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4
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Section
2.1
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Formation
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4
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Section
2.2
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Name
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4
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Section
2.3
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Registered
Office; Registered Agent; Other Offices
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5
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Section
2.4
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Purpose
and Business
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5
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Section
2.5
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Powers
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5
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Section
2.6
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Term
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5
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Section
2.7
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Title
to Company Assets
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5
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ARTICLE
III
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RIGHTS
OF THE SOLE MEMBER
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5
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Section
3.1
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Distributions
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5
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ARTICLE
IV
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CAPITAL
CONTRIBUTIONS; PREEMPTIVE RIGHTS; NATURE OF MEMBERSHIP
INTEREST
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6
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Section
4.1
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Capital
Contributions
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6
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Section
4.2
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No
Preemptive Rights
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6
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Section
4.3
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Fully
Paid and Non-Assessable Nature of Membership Interests
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6
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ARTICLE
V
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MANAGEMENT
AND OPERATION OF BUSINESS
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6
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Section
5.1
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Establishment
of the Board Number; Election; Tenure
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6
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Section
5.2
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The
Board; Delegation of Authority and Duties
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8
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Section
5.3
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Meetings
of the Board and Committees
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9
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Section
5.4
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Voting
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10
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Section
5.5
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Responsibility
and Authority of the Board
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10
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Section
5.6
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Devotion
of Time
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10
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Section
5.7
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Certificate
of Formation
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10
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Section
5.8
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Benefit
Plans
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10
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Section
5.9
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Indemnification
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11
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Section
5.10
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Liability
of Indemnitees
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12
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ARTICLE
VI
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OFFICERS
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12
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Section
6.1
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Officers
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12
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Section
6.2
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Compensation
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14
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ARTICLE
VII
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BOOKS,
RECORDS, ACCOUNTING AND REPORTS
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14
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Section
7.1
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Records
and Accounting
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14
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Section
7.2
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Reports
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14
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Section
7.3
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Bank
Accounts
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14
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ARTICLE
VIII
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DISSOLUTION
AND LIQUIDATION
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15
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Section
8.1
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Dissolution
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15
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TABLE
OF CONTENTS
(continuing)
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Page
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Section
8.2
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Effect
of Dissolution
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15
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Section
8.3
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Application
of Proceeds
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15
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ARTICLE
IX
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GENERAL
PROVISIONS
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16
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Section
9.1
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Addresses
and Notices
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16
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Section
9.2
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Creditors
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16
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Section
9.3
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Applicable
Law
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16
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Section
9.4
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Invalidity
of Provisions
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16
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Section
9.5
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Amendment
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16
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Section
9.6
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Effectiveness
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16
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ii
FOURTH
AMENDED AND RESTATED
OF
BREITBURN
GP, LLC
THIS FOURTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of BREITBURN GP,
LLC (the “Company”),
dated as of April 5, 2010, is entered into by BreitBurn Energy Partners L.P., a
Delaware limited partnership (the “MLP”), as sole member of the
Company (the “Sole
Member”).
WHEREAS, the Company is a
Delaware limited liability company that was formed under the Delaware Limited
Liability Company Act, 6 Del. C. § 18-101,
et seq., and is
currently governed by the Third Amended and Restated Limited Liability Company
Agreement of the Company, dated as of December 29, 2009 (the “Third Amended Agreement”),
entered into by the MLP;
WHEREAS, pursuant to the
Settlement Agreement (as defined herein), the Sole Member now desires to amend
and restate the Third Amended Agreement and to execute this Fourth Amended and
Restated Limited Liability Company Agreement in order to effect the matters set
forth herein.
NOW THEREFORE, in
consideration of the covenants, conditions and agreements contained herein, the
party hereto hereby amends and restates the Third Amended Agreement in its
entirety as follows:
ARTICLE
I
“Act” means the Delaware
Limited Liability Company Act, 6 Del. C. § 18-101, et seq., as amended,
supplemented or restated from time to time, and any successor to such
statute.
“Affiliate” means, with
respect to any Person, any other Person that directly or indirectly through one
or more intermediaries controls, is controlled by or is under common control
with, the Person in question. As used herein, the term “control”
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
“Agreement” means this Fourth
Amended and Restated Limited Liability Company Agreement of BreitBurn GP, LLC,
as it may be amended, supplemented or restated from time to
time. This Agreement shall constitute a “limited liability company
agreement” as such term is defined in the Act.
Fourth
Amended and Restated Limited Liability Company Agreement
“Board” shall have the meaning
assigned to such term in Section
5.1.
“BreitBurn Energy” means
BreitBurn Energy Company L.P., a Delaware limited partnership.
“BreitBurn Management” means
BreitBurn Management Company, LLC, a Delaware limited liability
company.
“Capital Contribution” means
any cash, cash equivalents or the value of Contributed Property contributed to
the Company pursuant to this Agreement.
“Certificate of Formation”
means the Certificate of Formation of the Company filed with the Secretary of
State of the State of Delaware as referenced in Section 2.1, as such
Certificate of Formation may be amended, supplemented or restated from time to
time.
“Company” means BreitBurn GP,
LLC, a Delaware limited liability company, and any successors
thereto.
“Company Group” means the
Company and any Subsidiary of the Company, treated as a single consolidated
entity.
“Contributed Property” means
each property or other asset, in such form as may be permitted by the Act, but
excluding cash, contributed to the Company.
“Directors” shall have the
meaning assigned to such term in Section
5.1.
“Effective Time” shall have
the meaning assigned to such term in the Settlement Agreement.
“Employment Agreements” shall mean (i)
the Amended and Restated Employment Agreement, dated December 31, 2007 among
Xxxxxxx X. Xxxxxxxxxxx, BreitBurn Management, Pro GP Corp. and the Company, (ii)
the Amended and Restated Employment Agreement, dated December 31, 2007 among
Xxxxxxx X. Xxxxxxxx, BreitBurn Management, Pro GP Corp. and the Company, (iii)
the Employment Agreement, dated July 7, 2006, between Xxxxx X. Xxxxxxx and
BreitBurn Energy, as amended by the Amendment to Employment Agreement, dated
October 10, 2006, among Xxxxx X. Xxxxxxx, BreitBurn Management, BreitBurn Energy
and the Company, (iv) the Employment Agreement, dated December 26, 2007, among
Xxxx X. Xxxxx, BreitBurn Management, Pro GP Corp. and the Company, and (v) the
Employment Agreement dated January 29, 2008, among Xxxxxxx X. Xxxxx, BreitBurn
Management, Pro GP Corp and the Company, as each such agreement may be amended,
supplemented or restated from time to time.
“Group Member” means a member
of the Company Group.
“Indemnitee” means (a) the
Sole Member; (b) any Person who is or was an Affiliate, member, partner,
director, officer, employee, agent or trustee of the Company, any Group Member,
the MLP, or any of their respective Affiliates; and (c) any Person who is or was
serving at the request of the Sole Member as a member, partner, director,
officer, employee, partner, agent, fiduciary or trustee of another Person, in
each case, acting in such capacity; provided, however, that a Person
shall not be an Indemnitee by reason of providing, on a fee-for-services basis,
trustee, fiduciary or custodial services.
Fourth
Amended and Restated Limited Liability Company Agreement
2
“Independent Director” shall
mean Directors meeting the independence and experience requirements as set forth
most recently by the National Securities Exchange.
“Limited Partner” has the
meaning assigned to such term in the MLP Agreement.
“Membership Interest” means
all of the Sole Member’s rights and interest in the Company, all as provided in
the Certificate of Formation, this Agreement and the Act, including, without
limitation, the Sole Member’s interest in the capital, income, gain, deductions,
losses and credits of the Company.
“MLP” shall have the meaning
assigned to such term in the introductory paragraph.
“MLP Agreement” means the
First Amended and Restated Agreement of Limited Partnership of BreitBurn Energy
Partners L.P., as it may be amended, supplemented or restated from time to
time.
“National Securities Exchange”
means the principal national securities exchange on which common units of the
MLP trade.
“Operating GP” means BreitBurn
Operating GP, LLC, a Delaware limited liability company.
“Operating LP” means BreitBurn
Operating L.P., a Delaware limited partnership.
“Person” means an individual
or a corporation, limited liability company, partnership, joint venture, trust,
unincorporated organization, association, government agency or political
subdivision thereof or other entity.
“Quicksilver” means
Quicksilver Resources Inc.
“Settlement Agreement” means
the Settlement Agreement, dated as of April 5, 2010, among the MLP, the Company,
Quicksilver, Provident Energy Trust, Xxxxxxx X. Xxxxxxxxxxx and Xxxxxxx X.
Xxxxxxxx.
“Sole Member” means the MLP
and its successors and permitted assigns as sole member of the
Company.
“Subsidiary” means, with
respect to any Person, (a) a corporation of which more than 50% of the voting
power of shares entitled (without regard to the occurrence of any contingency)
to vote in the election of directors or other governing body of such corporation
is owned, directly or indirectly, at the date of determination, by such Person,
by one or more Subsidiaries of such Person or a combination thereof; (b) a
partnership (whether general or limited) or limited liability company in which
such Person or a Subsidiary of such Person is, at the date of determination, a
general or limited partner of such partnership or member of such limited
liability company, but only if more than 50% of the partnership interests of
such partnership or limited liability company interests of such limited
liability company (considering all of the partnership interests or limited
liability company interests as a single class) is owned, directly or indirectly,
at the date of determination, by such Person, by one or more Subsidiaries of
such Person, or a combination thereof; or (c) any other Person (other than a
corporation or a partnership or a limited liability company) in which such
Person, one or more Subsidiaries of such Person, or a combination thereof,
directly or indirectly, at the date of determination, has (i) at least a
majority ownership interest or (ii) the power to elect or direct the election of
a majority of the directors or other governing body of such Person.
Fourth
Amended and Restated Limited Liability Company Agreement
0
“X.X. XXXX” xxxxx Xxxxxx
Xxxxxx Generally Accepted Accounting Principles consistently
applied.
(a) Unless
the context requires otherwise: (i) capitalized terms used herein but
not otherwise defined shall have the meanings assigned to such terms in the MLP
Agreement; (ii) any pronoun used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns, pronouns and verbs shall include the plural and vice versa; (iii)
references to Articles and Sections refer to Articles and Sections of this
Agreement; and (iv) the term “include” or “includes” means includes, without
limitation, and “including” means including, without limitation.
(b) A
reference to any Person includes such Person’s successors and permitted
assigns.
ARTICLE
II
Fourth
Amended and Restated Limited Liability Company Agreement
4
ARTICLE
III
Fourth
Amended and Restated Limited Liability Company Agreement
5
ARTICLE
IV
CAPITAL
CONTRIBUTIONS; PREEMPTIVE RIGHTS;
ARTICLE
V
(a) The
number of directors (the “Directors”) constituting the Board of Directors of the
Company (the “Board”) shall be at least five and not more than nine as shall be
established from time to time pursuant to a resolution adopted by a majority of
the Directors.
(b) The
Directors shall be elected by the Limited Partners and shall be nominated in
accordance with the terms of the MLP Agreement. 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 Section 5.1(d) to
Class I shall serve for an initial term that expires at the annual meeting of
Limited Partners originally intended to be held in 2009, the Directors
designated in Section
5.1(d) 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
Section 5.1(d)
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, successors to the class of Directors whose
term expires at that annual meeting shall be elected for a three-year term;
provided, however, because the first annual meeting of the Limited Partners,
which was originally intended to be held in 2009, was postponed as a result of
the litigation addressed in the Settlement Agreement and is now expected to be
held in 2010, (i) at that first annual meeting, it is expected that an election
will be held to elect successors to the Directors whose term was originally
intended to expire in 2009 (i.e., the Class I Directors)
and the Directors whose term was originally intended to expire in 2010 (i.e., the Class II
Directors), and (ii) the Class I Directors to be elected at the first
annual meeting shall be elected for a term that will expire three years after
the year in which the initial annual meeting was originally intended to be held
(i.e., 2012), and the
Class II Directors to be elected at the first annual meeting shall be elected
for a term that will expire three years after the year in which the annual
meeting for their election was originally intended to be held (i.e., 2013).
Fourth
Amended and Restated Limited Liability Company Agreement
6
(c) 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 as nearly equal as possible, and any additional Director
of any class elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of Directors shorten the
term of any incumbent Director. A Director shall hold office until
the annual meeting of the Limited Partners of the year in which his term expires
and until his successor shall be elected and shall qualify, subject, however, to
death, resignation or removal from office. Any vacancy on the Board
of Directors (including, without limitation, any vacancy caused by an increase
in the number of Directors on the Board of Directors) may only be filled by a
majority of the Directors then in office, even if less than a quorum, or by a
sole remaining Director. Any Director elected to fill a vacancy not
resulting from an increase in the number of Directors shall have the same
remaining term as that of his predecessor. A Director may be removed
only for cause and only upon a vote of the majority of the remaining Directors
then in office.
(d) As
of the date hereof, the Board shall consist of six Directors. The
Directors of the Company as of the date hereof and the Class that each such
Director is a member of is hereby designated as follows:
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Xxxx
X. Xxxxxx, Xx.
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Class
I
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Xxxxxxx
X. Xxxxxxx
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Class
I
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Xxxxxx
X. Xxxxxxxx
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Class
II
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Xxxxxxx
X. Xxxxx
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Class
II
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Xxxxx
X. Xxxxxxxxxx
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Class
III
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X.
Xxxxxxx Xxxxxx, III
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Class
III
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Fourth
Amended and Restated Limited Liability Company Agreement
7
(i) The
Board may establish committees of the Board and may delegate certain of its
responsibilities to such committees, including a Conflicts Committee, as
contemplated by the MLP Agreement.
(ii) For
so long as the Company serves as the general partner of the MLP, the Board shall
have:
(A) an
audit committee that complies with the then current requirements of the National
Securities Exchange; and
(B) such
other committees as required by the National Securities Exchange.
Fourth
Amended and Restated Limited Liability Company Agreement
8
Fourth
Amended and Restated Limited Liability Company Agreement
9
In
addition to the powers and authorities expressly conferred on the Board by this
Agreement, the Board may exercise all such powers of the Company and do all such
acts and things as are not restricted by this Agreement, the MLP Agreement, the Act
or applicable law.
Section
5.7 Certificate of
Formation. The Board shall use all reasonable efforts to cause
to be filed such additional certificates or documents as may be determined by
the Board to be necessary or appropriate for the formation, continuation,
qualification and operation of a limited liability company in the State of
Delaware or any other state in which the Company may elect to do business or own
property. To the extent that such action is determined by the Board
to be necessary or appropriate, the Board or its designee or the Sole Member
shall file amendments to and restatements of the Certificate of Formation and do
all things to maintain the Company as a limited liability company under the laws
of the State of Delaware or of any other state in which the Company may elect to
do business or own property.
Fourth
Amended and Restated Limited Liability Company Agreement
10
(a) To
the fullest extent permitted by law but subject to the limitations expressly
provided in this Agreement, all Indemnitees shall be indemnified and held
harmless by the Company from and against any and all losses, claims, damages
liabilities, joint or several, expenses (including legal fees and expenses),
judgments, fines, penalties, interest, settlements or other amounts arising from
any and all claims, demands, actions, suits or proceedings, whether civil,
criminal, administrative or investigative, in which any Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, by reason of
its status as an Indemnitee; provided, however, that the Indemnitee
shall not be indemnified and held harmless if there has been a final and
non-appealable judgment entered by a court of competent jurisdiction determining
that, in respect of the matter for which the Indemnitee is seeking
indemnification pursuant to this Section 5.9, the
Indemnitee acted in bad faith or engaged in fraud, willful misconduct, or in the
case of a criminal matter, acted with knowledge that the Indemnitee’s conduct
was unlawful. Any indemnification pursuant to this Section 5.9 shall be
made only out of the assets of the Company, it being agreed that the Sole Member
shall not be personally liable for such indemnification and shall have no
obligation to contribute or loan any monies or property to the Company to enable
it to effectuate such indemnification.
(b) To
the fullest extent permitted by law, expenses (including legal fees and
expenses) incurred by an Indemnitee who is indemnified pursuant to Section 5.9(a) in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Company prior to a determination that the Indemnitee is
not entitled to be indemnified upon receipt by the Company of an undertaking by
or on behalf of the Indemnitee to repay such amount if it shall be determined
that the Indemnitee is not entitled to be indemnified as authorized in this
Section
5.9.
(c) The
indemnification provided by this Section 5.9 shall be
in addition to any other rights to which an Indemnitee may be entitled under any
agreement, as a matter of law or otherwise, both as to actions in the
Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity
(including any capacity under the MLP Agreement), and shall continue as to an
Indemnitee who has ceased to serve in such capacity and shall inure to the
benefit of the heirs, successors, assigns and administrators of such
Indemnitee.
(d) The
Company may purchase and maintain (or reimburse the Sole Member and its
Affiliates and such other Persons as the Sole Member shall determine for the
cost of) insurance, on behalf of the Sole Member and its Affiliates and such
other Persons as the Sole Member shall determine, against any liability that may
be asserted against or expense that may be incurred by, such Person in
connection with the Company’s activities or such Person’s activities on behalf
of the Company, regardless of whether the Company would have the power to
indemnify such Person against such liability under the provisions of this
Agreement.
(e) For
purposes of this Section 5.9, the
Company shall be deemed to have requested an Indemnitee to serve as fiduciary of
an employee benefit plan whenever the performance by it of its duties to the
Company also imposes duties on, or otherwise involves services by, it to the
plan or participants or beneficiaries of the plan; excise taxes assessed on an
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall constitute “fines” within the meaning of Section 5.9(a); and
action taken or omitted by it with respect to any employee benefit plan in the
performance of its duties for a purpose reasonably believed by it to be in the
interest of the participants and beneficiaries of the plan shall be deemed to be
for a purpose that is in the best interests of the Company.
Fourth
Amended and Restated Limited Liability Company Agreement
11
(f) In
no event may an Indemnitee subject the Sole Member to personal liability by
reason of the indemnification provisions set forth in this
Agreement.
(g) An
Indemnitee shall not be denied indemnification in whole or in part under this
Section 5.9
because the Indemnitee had an interest in the transaction with respect to which
the indemnification applies if the transaction was otherwise permitted by the
terms of this Agreement.
(h) The
provisions of this Section 5.9 are for
the benefit of the Indemnitees, their heirs, successors, assigns and
administrators and shall not be deemed to create any rights for the benefit of
any other Persons.
(i) No
amendment, modification or repeal of this Section 5.9 shall in
any manner terminate, reduce or impair the right of any past, present or future
Indemnitee to be indemnified by the Company, nor the obligations of the Company
to indemnify any such Indemnitee under and in accordance with the provisions of
this Section
5.9 as in effect immediately prior to such amendment, modification or
repeal with respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification or repeal, regardless of
when such claims may arise or be asserted.
(a) Notwithstanding
anything to the contrary set forth in this Agreement or the MLP Agreement, no
Indemnitee shall be liable for monetary damages to the Company, the Sole Member
or any other Persons who are bound by this Agreement, for losses sustained or
liabilities incurred as a result of any act or omission if such Indemnitee acted
in good faith.
(b) Any
amendment, modification or repeal of this Section 5.10 shall be
prospective only and shall not in any way affect the limitations on the
liability of the Indemnitees under this Section 5.10 as in
effect immediately prior to such amendment, modification or repeal with respect
to claims arising from or relating to matters occurring, in whole or in part,
prior to such amendment, modification or repeal, regardless of when such claims
may arise or be asserted.
ARTICLE
VI
Fourth
Amended and Restated Limited Liability Company Agreement
12
Fourth
Amended and Restated Limited Liability Company Agreement
13
ARTICLE
VII
(a) Within
120 Days after the end of such fiscal year, a Company balance sheet, profit and
loss statement, and statement of cash flows for such year as of the end of such
year.
(b) Such
federal, state and local income tax returns and such other accounting, tax
information and schedules as shall be necessary for the preparation by the Sole
Member on or before June 15 following the end of each calendar year of its
income tax return with respect to such year.
Fourth
Amended and Restated Limited Liability Company Agreement
14
ARTICLE
VIII
(a) The
Company shall be of perpetual duration; however, the Company shall dissolve, and
its affairs shall be wound up, upon:
(i) an
election to dissolve the Company by the Board;
(ii) the
entry of a decree of judicial dissolution of the Company pursuant to the
provisions of the Act;
(iii) a
merger or consolidation under the Act where the Company is not the surviving
entity in such merger or consolidation; or
(iv) at
any time there are no members of the Company, unless the Company is continued
without dissolution in accordance with the Act.
(b) No
other event shall cause a dissolution of the Company.
(a) To
the satisfaction of debts and liabilities of the Company (including members and
managers who are creditors of the Company to the extent permitted by applicable
law), to the expenses of liquidation and to the setting up of such reserves as
the Person required or authorized by law to wind up the Company's affairs may
reasonably deem necessary or appropriate for any disputed, contingent or
unforeseen liabilities or obligations of the Company; provided,
however, that any such reserves shall be paid over by such
Person to an escrow agent appointed by the Board, to be held by such agent or
its successor for such period as such Person shall deem advisable but in all
cases subject to the Act for the purpose of applying such reserves to the
satisfaction of such liabilities or obligations and, at the expiration of such
period, the balance of such reserves, if any, shall be distributed as
hereinafter provided.
(b) The
remainder to the Sole Member.
Fourth
Amended and Restated Limited Liability Company Agreement
15
ARTICLE
IX
If to the
Sole Member:
000 Xxxxx
Xxxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx
X. Xxxxxxxx
Facsimile
No.: (000) 000-0000
Section
9.4 Invalidity of
Provisions. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
Fourth
Amended and Restated Limited Liability Company Agreement
16
IN WITNESS WHEREOF, the
undersigned has executed this Agreement as of the date first written
above.
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By:
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BREITBURN
GP, LLC,
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its
general partner
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By:
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/s/Xxxxxxx X. Xxxxxxxx
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Xxxxxxx
X. Xxxxxxxx
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Chief
Executive Officer
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