AMENDMENT NO. 1 TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF DCP MIDSTREAM GP, LLC
Exhibit 3.1
AMENDMENT NO. 1 TO
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
DCP MIDSTREAM GP, LLC
This Amendment No. 1 to the Amended and Restated Limited Liability Company Agreement (the “LLC
Agreement”) of DCP Midstream GP, LLC (the “Company”) is hereby adopted, executed and agreed to by
DCP Midstream, LLC as Sole Member (“Sole Member”) of the Company.
WHEREAS, the Sole Member desires to amend the LLC Agreement by revising Section 6.02(e)(ii) of
the LLC Agreement.
NOW, THEREFORE BE IT RESOLVED, that the Sole Member does hereby amend the LLC Agreement as
follows:
Section 6.02(e)(ii) is hereby amended by deleting the last four words thereof and replacing it
with the following:
“In addition to any other committees established by the Board of Directors pursuant to Section
6.02(e)(i), the Board of Directors shall maintain a “Conflicts Committee,” which shall be composed
of at least one Independent Director. The Conflicts Committee shall be responsible for
(A) approving or disapproving, as the case may be, any matters regarding the business and affairs
of the Company, DCP GP or the MLP considered by, or submitted to, such Conflicts Committee at the
request of the Board of Directors pursuant to the terms of the DCP GP Agreement or the MLP
Partnership Agreement, (B) approving any material amendments to the Omnibus Agreement,
(C) approving or disapproving, as the case may be, the entering into of any material transaction
with a Member or any Affiliate of a Member, other than transactions in the ordinary course of
business to the extent that the Board of Directors requests the Conflicts Committee to make such
determination, (D) amending (1) Section 2.07, (2) the definitions of “Independent Director”
in Section 6.02(a) or (3) this Section 6.02(e)(ii), and (E) performing such other functions as the
Board may assign from time to time or as may be specified in a written charter of the Conflicts
Committee. In acting or otherwise voting on the matters referred to in this Section 6.02(e)(ii),
to the fullest extent permitted by law, including Section 18-1101(c) of the Delaware Act and
Section 17-1101(c) of the Delaware Revised Uniform Limited Partnership Act, as amended from time to
time, the Directors constituting the Conflicts Committee shall consider only the interest of the
MLP.”
IN WITNESS WHEREOF, the Sole Member has executed this Amendment No. 1 as of January 20, 2009.
DCP Midstream, LLC | ||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: Xxxxx X. Xxxxxx |
||||
Title: Group Vice President, General Counsel and Corporate Secretary |
EXECUTION COPY
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
LIMITED LIABILITY COMPANY AGREEMENT
OF
DCP MIDSTREAM GP, LLC
A Delaware Limited Liability Company
A Delaware Limited Liability Company
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
DCP MIDSTREAM GP, LLC
A Delaware Limited Liability Company
LIMITED LIABILITY COMPANY AGREEMENT
OF
DCP MIDSTREAM GP, LLC
A Delaware Limited Liability Company
TABLE OF CONTENTS
ARTICLE 1 | ||||||
DEFINITIONS | ||||||
1.01
|
Definitions | 1 | ||||
1.02
|
Construction | 1 | ||||
ARTICLE 2 | ||||||
ORGANIZATION | ||||||
2.01
|
Formation | 2 | ||||
2.02
|
Name | 2 | ||||
2.03
|
Registered Office; Registered Agent; Principal Office; Other Offices | 2 | ||||
2.04
|
Purpose | 2 | ||||
2.05
|
Term | 2 | ||||
2.06
|
No State-Law Partnership; Withdrawal | 2 | ||||
2.07
|
Certain Undertakings Relating to Separateness | 3 | ||||
ARTICLE 3 | ||||||
MATTERS RELATING TO MEMBERS | ||||||
3.01
|
Members | 4 | ||||
3.02
|
Creation of Additional Membership Interest | 4 | ||||
3.03
|
Liability to Third Parties | 5 | ||||
ARTICLE 4 | ||||||
CAPITAL CONTRIBUTIONS | ||||||
4.01
|
Capital Contributions | 5 | ||||
4.02
|
Loans | 5 | ||||
4.03
|
Return of Contributions | 5 | ||||
ARTICLE 5 | ||||||
DISTRIBUTIONS | ||||||
5.01
|
Distributions | 5 | ||||
ARTICLE 6 | ||||||
MANAGEMENT | ||||||
6.01
|
Management | 5 | ||||
6.02
|
Board of Directors | 8 | ||||
6.03
|
Officers | 11 | ||||
6.04
|
Duties of Officers and Directors | 13 | ||||
6.05
|
Compensation | 13 | ||||
6.06
|
Indemnification | 13 |
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6.07
|
Liability of Indemnitees | 15 | ||||
6.08
|
Outside Activities | 16 | ||||
6.09
|
Resolution of Conflicts of Interest; Standard of Conduct and Modification of Duties | 16 | ||||
ARTICLE 7 | ||||||
TAX MATTERS | ||||||
7.01
|
Tax Returns and Tax Characterization | 18 | ||||
ARTICLE 8 | ||||||
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS | ||||||
8.01
|
Maintenance of Books | 18 | ||||
8.02
|
Reports | 18 | ||||
8.03
|
Bank Accounts | 19 | ||||
ARTICLE 9 | ||||||
DISSOLUTION, WINDING-UP AND TERMINATION | ||||||
9.01
|
Dissolution | 19 | ||||
9.02
|
Winding-Up and Termination | 19 | ||||
ARTICLE 10 | ||||||
MERGER, CONSOLIDATION OR CONVERSION | ||||||
10.01
|
Authority | 20 | ||||
10.02
|
Procedure for Merger, Consolidation or Conversion | 20 | ||||
10.03
|
Approval by Members of Merger or Consolidation | 22 | ||||
10.04
|
Certificate of Merger, Consolidation or Conversion | 22 | ||||
ARTICLE 11 | ||||||
GENERAL PROVISIONS | ||||||
11.01
|
Notices | 23 | ||||
11.02
|
Entire Agreement; Supersedure | 24 | ||||
11.03
|
Effect of Waiver or Consent | 24 | ||||
11.04
|
Amendment or Restatement | 24 | ||||
11.05
|
Binding Effect | 24 | ||||
11.06
|
Governing Law; Severability | 24 | ||||
11.07
|
Further Assurances | 25 | ||||
11.08
|
Offset | 25 | ||||
11.09
|
Counterparts | 25 |
ii
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
DCP Midstream GP, LLC
A Delaware Limited Liability Company
LIMITED LIABILITY COMPANY AGREEMENT
OF
DCP Midstream GP, LLC
A Delaware Limited Liability Company
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of DCP
Midstream GP, LLC, a Delaware limited liability company (the “Company”), executed on December 7,
2005 (the “Effective Date”), is adopted, executed and agreed to, by Duke Energy Field Services,
LLC, a Delaware limited liability company (“DEFS”), as the sole Member of the Company.
RECITALS
A. DEFS formed the Company on August 5, 2005 as the sole member.
B. The Limited Liability Company Agreement of DCP Midstream GP, LLC was executed effective
August 5, 2005 (the “Existing Agreement”).
C. DEFS, the sole Member of the Company, deems it advisable to amend and restate the limited
liability company agreement of the Company in its entirety as set forth herein.
AGREEMENTS
For and in consideration of the premises, the covenants and agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
DEFS, as the sole Member of the Company, hereby amends and restates the Existing Agreement in its
entirety as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
1.01 Definitions. Each capitalized term used herein shall have the meaning given such term in Attachment I.
1.02 Construction. Unless the context requires otherwise: (a) the gender (or lack of gender) of all words used in
this Agreement includes the masculine, feminine and neuter; (b) references to Articles and Sections
refer to Articles and Sections of this Agreement; (c) references to Laws refer to such Laws as they
may be amended from time to time, and references to particular provisions of a Law include any
corresponding provisions of any succeeding Law; (d) references to money refer to legal currency of
the United States of America; (e) “including” means “including without limitation” and is a term of
illustration and not of limitation; (f) all definitions set forth herein shall be deemed applicable
whether the words defined are used herein in the singular or the plural; and (g) neither this
Agreement nor any other agreement, document or instrument referred to herein or executed and delivered
in connection herewith shall be construed against any Person as the principal draftsperson hereof or thereof.
ARTICLE 2
ORGANIZATION
ORGANIZATION
2.01 Formation. The Company was organized as a Delaware limited liability company by the filing of a Certificate
of Formation (“Organizational Certificate”) on August 5, 2005 with the Secretary of State of the
State of Delaware under and pursuant to the Delaware Act.
2.02 Name. The name of the Company is “DCP Midstream GP, LLC” and all Company business must be conducted in
that name or such other names that comply with Law as the Board of Directors may select.
2.03 Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Delaware Act to be maintained in the State
of Delaware shall be the office of the initial registered agent for service of process named in the
Organizational Certificate or such other office (which need not be a place of business of the
Company) as the Board of Directors may designate in the manner provided by Law. The registered
agent for service of process of the Company in the State of Delaware shall be the initial
registered agent for service of process named in the Organizational Certificate or such other
Person or Persons as the Board of Directors may designate in the manner provided by Law. The
principal office of the Company in the United States shall be at such a place as the Board of
Directors may from time to time designate, which need not be in the State of Delaware, and the
Company shall maintain records there and shall keep the street address of such principal office at
the registered office of the Company in the State of Delaware. The Company may have such other
offices as the Board of Directors may designate.
2.04 Purpose. The purposes of the Company are the transaction of any or all lawful business for which limited
liability companies may be organized under the Delaware Act.
2.05 Term. The period of existence of the Company commenced on August 5, 2005 and shall end at such time as
a certificate of cancellation is filed in accordance with Section 9.02(c).
2.06 No State-Law Partnership; Withdrawal. It is the intent that the Company shall be a limited liability company formed under the Laws of
the State of Delaware and shall not be a partnership (including a limited partnership) or joint
venture, and that the Members not be a partner or joint venturer of any other party for any
purposes other than federal and state tax purposes, and this Agreement may not be construed to
suggest otherwise. A Member does not have the right to Withdraw from the Company; provided,
however, that a Member shall have the power to Withdraw at any time in violation of this Agreement.
If a Member exercises such power in violation of this Agreement, (a) such Member shall be liable
to the Company and its Affiliates for all monetary damages suffered by them as a result of such
Withdrawal; and (b) such Member shall not have any rights under Section 18.604 of the Delaware Act.
In no event shall the Company have the right, through specific performance or otherwise, to
prevent a Member from Withdrawing in violation of this Agreement.
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2.07 Certain Undertakings Relating to Separateness.
(a) Separateness Generally. The Company shall, and shall cause DCP GP to, conduct
their respective businesses and operations in accordance with this Section 2.07.
(b) Separate Records. The Company shall, and shall cause DCP GP to, (i) maintain
their respective books and records and their respective accounts separate from those of any other
Person, (ii) maintain their respective financial records, which will be used by them in their
ordinary course of business, showing their respective assets and liabilities separate and apart
from those of any other Person, except their consolidated Subsidiaries, (iii) not have their
respective assets and/or liabilities included in a consolidated financial statement of any
Affiliate of the Company unless appropriate notation shall be made on such Affiliate’s consolidated
financial statements to indicate the separateness of the Company and DCP GP and their assets and
liabilities from such Affiliate and the assets and liabilities of such Affiliate, and to indicate
that the assets and liabilities of the Company and DCP GP are not available to satisfy the debts
and other obligations of such Affiliate, and (iv) file their respective own tax returns separate
from those of any other Person, except (A) to the extent that the Company or DCP GP (x) is treated
as a “disregarded entity” for tax purposes or (y) is not otherwise required to file tax returns
under applicable law or (B) as may otherwise be required by applicable law.
(c) Separate Assets. The Company shall not commingle or pool, and shall cause DCP GP
not to commingle or pool, their respective funds or other assets with those of any other Person,
and shall maintain their respective assets in a manner that is not costly or difficult to
segregate, ascertain or otherwise identify as separate from those of any other Person.
(d) Separate Name. The Company shall, and shall cause DCP GP to, (i) conduct their
respective businesses in their respective own names, (ii) use separate stationery, invoices, and
checks, (iii) correct any known misunderstanding regarding their respective separate identities
from that of any other Person (including DEFS and its Subsidiaries other than the Company and DCP
GP), and (iv) generally hold itself out as an entity separate from any other Person (including DEFS
and its Subsidiaries other than the Company and DCP GP).
(e) Separate Credit. The Company shall, and shall cause DCP GP to, (i) pay their
respective obligations and liabilities from their respective own funds (whether on hand or
borrowed), (ii) maintain adequate capital in light of their respective business operations, (iii)
not guarantee or become obligated for the debts of any other Person, other than the Company and DCP
GP and except to the extent specified in the Contribution Agreement or the Omnibus Agreement, (iv)
not hold out their respective credit as being available to satisfy the obligations or liabilities
of any other Person except to the extent specified in the Contribution Agreement or the Omnibus
Agreement, (v) not acquire debt obligations or debt securities of DEFS or its Affiliates (other
than the Company and DCP GP), (vi) not pledge their assets for the benefit of any Person or make
loans, advances or capital contributions to DEFS or any of its Affiliates (other than the MLP and
its Subsidiaries and, with respect to the Company, other than DCP GP), or (vii) use its
commercially reasonable efforts to cause the operative documents under which DCP GP borrows money,
is an issuer of debt securities, or guarantees any such borrowing or issuance after the Effective
Date, to contain provisions to the effect that (A) the lenders
or purchasers of debt securities, respectively, acknowledge that they have advanced funds or purchased debt securities,
3
respectively,
in reliance upon the separateness of the Company and DCP GP from each other and from any other
Persons (including DEFS and its Affiliates, other than the Company and DCP GP) and (B) the Company
and DCP GP have assets and liabilities that are separate from those of other persons (including
DEFS and its Affiliates, other than the Company and DCP GP); provided that the Company and DCP GP
may engage in any transaction described in clauses (v)-(vi) of this Section 2.07(e) if prior
Special Approval has been obtained for such transaction and either (A) the Conflicts Committee has
determined that the borrower or recipient of the credit support is not then insolvent and will not
be rendered insolvent as a result of such transaction or (B) in the case of transactions described
in clause (v), such transaction is completed through a public sale or a National Securities
Exchange.
(f) Separate Formalities. The Company shall, and shall cause DCP GP to, (i) observe
all limited liability company or partnership formalities and other formalities required by their
respective organizational documents, the laws of the jurisdiction of their respective formation, or
other laws, rules, regulations and orders of governmental authorities exercising jurisdiction over
it, (ii) engage in transactions with DEFS and its Affiliates (other than the Company or DCP GP) in
conformity with the requirements of Section 7.9 of the DCP GP Agreement, and (iii) subject to the
terms of the Omnibus Agreement, promptly pay, from their respective own funds and on a timely
basis, their respective allocable shares of general and administrative expenses, capital
expenditures, and costs for services performed by DEFS or Affiliates of DEFS (other than the
Company or DCP GP). Each material contract between the Company or DCP GP, on the one hand, and
DEFS or Affiliates of DEFS (other than the Company or DCP GP), on the other hand, shall be subject
to the requirements of Section 7.9 of the DCP GP Agreement, and must be (x) approved by Special
Approval or (y) on terms objectively demonstrable to be no less favorable to DCP GP than those
generally being provided to or available from unrelated third parties, and in any event must be in
writing.
(g) No Effect. Failure by the Company to comply with any of the obligations set forth
above shall not affect the status of the Company as a separate legal entity, with its separate
assets and separate liabilities or restrict or limit the Company from engaging or contracting with
DEFS and its Affiliates for the provision of services or the purchase or sale of products, whether
under the Omnibus Agreement or otherwise.
ARTICLE 3
MATTERS RELATING TO MEMBERS
MATTERS RELATING TO MEMBERS
3.01 Members. DEFS has previously been admitted as a Member of the Company.
3.02 Creation of Additional Membership Interest. The Company may issue additional Membership Interests in the Company pursuant to this Section
3.02. The terms of admission or issuance may provide for the creation of different classes or
groups of Members having different rights, powers, and duties. The creation of any new class or
group of Members approved as required herein may be reflected in an amendment to this Agreement
executed in accordance with Section 11.04 indicating the different rights, powers, and duties
thereof. Any such admission is effective only after the new Member has executed and delivered to
the Members an instrument containing the notice address of the new Member and the new Member’s
ratification of this Agreement and agreement to be bound by it.
4
3.03 Liability to Third Parties. No Member or beneficial owner of any Membership Interest shall be liable for the Liabilities of
the Company.
ARTICLE 4
CAPITAL CONTRIBUTIONS
CAPITAL CONTRIBUTIONS
4.01 Capital Contributions.
(a) In exchange for its Membership Interest, DEFS has made certain Capital Contributions.
(b) The amount of money and the fair market value (as of the date of contribution) of any
property (other than money) contributed to the Company by a Member in respect of the issuance of a
Membership Interest to such Member shall constitute a “Capital Contribution.” Any reference in
this Agreement to the Capital Contribution of a Member shall include a Capital Contribution of its
predecessors in interest.
4.02 Loans. If the Company does not have sufficient cash to pay its obligations, any Member that may agree
to do so may, upon Special Approval, advance all or part of the needed funds for such obligation to
or on behalf of the Company. An advance described in this Section 4.02 constitutes a loan from the
Member to the Company, may bear interest at a rate comparable to the rate the Company could obtain
from third parties, and is not a Capital Contribution.
4.03 Return of Contributions. A Member is not entitled to the return of any part of its Capital Contributions or to be paid
interest in respect of its Capital Contributions. An unrepaid Capital Contribution is not a
liability of the Company or of any Member. No Member will be required to contribute or to lend any
cash or property to the Company to enable the Company to return any Member’s Capital Contributions.
ARTICLE 5
DISTRIBUTIONS
DISTRIBUTIONS
5.01 Distributions. Subject to Section 9.02, within 45 days following each Quarter other than any Quarter in which
the dissolution of the Company has commenced (the “Distribution Date”), the Company shall
distribute to the Members the Company’s Available Cash on such Distribution Date.
ARTICLE 6
MANAGEMENT
MANAGEMENT
6.01 Management.
(a) All management powers over the business and affairs of the Company shall be exclusively
vested in a Board of Directors (“Board of Directors” or “Board”) and, subject to the direction of
the Board of Directors, the Officers. The Officers and Directors shall each constitute a “manager”
of the Company within the meaning of the Delaware Act. Except as otherwise specifically provided
in this Agreement, no Member, by virtue of having the status of
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a Member, shall have or attempt to
exercise or assert any management power over the business and affairs of the Company or shall have
or attempt to exercise or assert actual or apparent authority to enter into contracts on behalf of,
or to otherwise bind, the Company. Except as otherwise specifically provided in this Agreement,
the authority and functions of the Board of Directors on the one hand and of the Officers on the
other shall be identical to the authority and functions of the board of directors and officers,
respectively, of a corporation organized under the Delaware General Corporation Law. Except as
otherwise specifically provided in this Agreement, the business and affairs of the Company shall be
managed under the direction of the Board of Directors, and the day-to-day activities of the Company
shall be conducted on the Company’s behalf by the Officers, who shall be agents of the Company.
(b) In addition to the powers that now or hereafter can be granted to managers under the
Delaware Act and to all other powers granted under any other provision of this Agreement, except as
otherwise provided in this Agreement, the Board of Directors and the Officers shall have full power
and authority to do all things as are not restricted by this Agreement, the DCP GP Agreement, the
Delaware Act or applicable Law, on such terms as they may deem necessary or appropriate to conduct,
or cause to be conducted, the business and affairs of the Company.
(c) Notwithstanding anything herein to the contrary, without obtaining Extraordinary Approval,
the Company shall not, and shall not take any action to cause either
DCP GP or the MLP to, (i) make or consent to a general assignment for the benefit of its
respective creditors; (ii) file or consent to the filing of any bankruptcy, insolvency or
reorganization petition for relief under the United States Bankruptcy Code naming the Company, DCP
GP or the MLP, as applicable, or otherwise seek, with respect to the Company, DCP GP or the MLP,
relief from debts or protection from creditors generally; (iii) file or consent to the filing of a
petition or answer seeking for the Company, DCP GP or the MLP, as applicable, a liquidation,
dissolution, arrangement, or similar relief under any law; (iv) file an answer or other pleading
admitting or failing to contest the material allegations of a petition filed against the Company,
DCP GP or the MLP, as applicable, in a proceeding of the type described in any of clauses (i) —
(iii) of this Section 6.01(c); (v) seek, consent to or acquiesce in the appointment of a receiver,
liquidator, conservator, assignee, trustee, sequestrator, custodian or any similar official for the
Company, DCP GP or the MLP, as applicable, or for all or any substantial portion of either entity’s
properties; (vi) sell all or substantially all of the assets of the Company, DCP GP or the MLP;
(vii) dissolve or liquidate, except in the case of DCP GP, in accordance with Article XII of the
DCP GP Agreement; (viii) merge or consolidate; (ix) amend the MLP Partnership Agreement; or (x)
make a material change in the amount of the quarterly distributions made on the MLP Interests or
the payment of any material extraordinary distribution on the MLP Interests.
(d) Notwithstanding anything herein to the contrary, DEFS, as the sole Member of the Company,
shall have exclusive authority over the business and affairs of the Company that do not relate to
management and control of the MLP. The type of matter referred to in the prior sentence where
DEFS, as the sole Member of the Company, shall have exclusive authority shall include, but not be
limited to, (i) the amount and timing of distributions paid by the Company or DCP GP, (ii) the
issuance or repurchase of any equity interests in the Company or DCP GP, (iii) the prosecution,
settlement or management of any claim made directly against
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the Company or DCP GP, (iv) whether to
sell, convey, transfer or pledge any asset of the Company or DCP GP, (v) whether to amend, modify
or waive any rights relating to the assets of the Company or DCP GP (including the decision to
amend or forego distributions in respect of the Incentive Distribution Rights), and (vi) whether to
enter into any agreement to incur an obligation of the Company or DCP GP other than an agreement
entered into for and on behalf of the MLP for which the Company or DCP GP are liable exclusively by
virtue of DCP GP’s capacity as general partner of the MLP or of any of its affiliates. Further,
DEFS, as the sole Member of the Company, shall have exclusive authority to cause the Company to
exercise the rights of the Company and those of DCP GP, as general partner of the MLP (or those
exercisable after DCP GP ceases to be the general partner of the MLP), pursuant to the following
provisions of the MLP Partnership Agreement:
(i) Section 2.4 (“Purpose and Business”), with respect to decisions to propose or approve the
conduct by the MLP of any business;
(ii) Sections 4.6(a) and (b) (“Transfer of the General Partner’s General Partner Interest”)
and Section 4.7 (“Transfer of Incentive Distribution Rights”), solely with respect to the decision
by DCP GP to transfer its general partner interest in the MLP or its Incentive Distribution Rights;
(iii) Section 5.2(b) (“Contributions by the General Partner and its Affiliates”), solely with
respect to the decision to make additional Capital Contributions to the MLP;
(iv) Section 5.8 (“Limited Preemptive Right”);
(v) Section 5.11 (“Issuance of Class B Units in Connection with Reset of Incentive
Distribution Rights”), with respect to any decision by the Company or DCP GP thereunder as a holder
of Incentive Distribution Rights or Class B Units;
(vi) Section 7.5(d) (relating to the right of DCP GP and its Affiliates to purchase Units or
other Partnership Securities and exercise rights related thereto) and Section 7.11 (“Purchase and
Sale of Partnership Securities”), solely with respect to decisions by the Company or DCP GP to
purchase or otherwise acquire and sell Partnership Securities for their own account;
(vii) Section 7.6(a) (“Loans from the General Partner; Loans or Contributions from the
Partnership or Group Members”), solely with respect to the decision by the Company or DCP GP to
lend funds to a Group Member, subject to the provisions of Section 7.9 of the MLP Partnership
Agreement;
(viii) Section 7.7 (“Indemnification”), solely with respect to any decision by the Company or
DCP GP to exercise their respective rights as “Indemnitees”;
(ix) Section 7.12 (“Registration Rights of the General Partner and its Affiliates”), solely
with respect to any decision to exercise registration rights and to take actions in connection
therewith;
7
(x) Section 11.1 (“Withdrawal of the General Partner”), solely with respect to the decision by
DCP GP to withdraw as general partner of the MLP and to giving notices required thereunder;
(xi) Section 11.3(a) and (b) (“Interest of Departing General Partner and Successor General
Partner”); and
(xii) Section 15.1 (“Right to Acquire Limited Partner Interests”).
(e) Without the approval of the Conflicts Committee of the Board of Directors of the Company,
the Company shall not take any action that would result in either the Company or DCP GP engaging in
any business or activity or incurring any debts or liabilities except in connection with or
incidental to (i) its performance as general partner of DCP GP or (ii) the acquiring, owning or
disposing of debt or equity securities of DCP GP.
6.02 Board of Directors.
(a) Generally. The Board of Directors shall initially consist of five natural persons and, in
the discretion of DEFS, may be increased to consist of up to 10 natural persons. The members of
the Board of Directors shall be appointed by DEFS, provided that (i) at least one member of the
Board of Directors at the time of the closing of the initial public offering of common units
representing limited partner interest of the MLP (the “IPO”) shall be a natural person who meets
the independence, qualification and experience requirements of the New York Stock Exchange, the
independence, qualification and experience requirements of Section 10A(m)(3) of the Securities
Exchange Act of 1934 (or any successor Law), the rules and regulations of the SEC and other
applicable Law (an “Independent Director”), (ii) at least two members of the Board of Directors
shall be natural persons who are Independent Directors at all times from and after the 90th day
following the effective date of the registration statement related to the IPO and (iii) at least
three members of the Board of Directors shall be natural persons who are Independent Directors at
all times from and after the first anniversary of the effective date of the registration statement
relating to the IPO; provided, however, that if at any time the Board of Directors does not include
the requisite number of Independent Directors as specified above, the Board of Directors shall
still have all powers and authority granted to it hereunder, but DEFS shall endeavor to appoint one
or more additional Independent Directors as necessary to come into compliance with this Section
6.02(a).
(b) Term; Resignation; Vacancies; Removal. Each Director, other than any Independent
Director, shall hold office until December 31 of the year in which such Director is appointed,
provided however, that in the event a Director, other than an Independent Director, is appointed
during the month of December in any particular year, such Director shall hold office until December
31 of the year following the year in which such Director is appointed. Each Independent Director
shall hold office until his successor is appointed and qualified or until his earlier resignation
or removal. Any Director may resign at any time upon written notice to the Board, the Chairman of
the Board, to the Chief Executive Officer or to any other Officer. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. Vacancies and newly created directorships
resulting from any increase in the authorized number of Directors or from
8
any other cause shall be filled by DEFS. Any Director may be removed, with or without cause, by DEFS at any time, and the
vacancy in the Board caused by any such removal shall be filled by DEFS in accordance with the
provisions of the DEFS LLC Agreement.
(c) Voting; Quorum. Unless otherwise required by the Delaware Act, other Law or the
provisions hereof,
(i) each member of the Board of Directors shall have one vote;
(ii) except for matters requiring Special Approval, the presence at a meeting of a majority of
the members of the Board of Directors shall constitute a quorum at any such meeting for the
transaction of business; and
(iii) except for matters requiring Special Approval, the act of a majority of the members of
the Board of Directors present at a meeting duly called in accordance with Section 6.02(d) at which
a quorum is present shall be deemed to constitute the act of the Board of Directors.
(d) Meetings. Regular meetings of the Board of Directors shall be held at such times and
places as shall be designated from time to time by resolution of the Board of Directors. Special
meetings of the Board of Directors or meetings of any committee thereof may be called by written
request authorized by any member of the Board of Directors or a committee thereof on at least 48
hours prior written notice to the other members of such Board or committee. Any such notice, or
waiver thereof, need not state the purpose of such meeting, except as may otherwise be required by
law. Attendance of a Director at a meeting (including pursuant to the last sentence of this
Section 6.02(d)) shall constitute a waiver of notice of such meeting, except where such Director
attends the meeting for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened. Any action required or permitted to be
taken at a meeting of the Board of Directors or any committee thereof may be taken without a
meeting, without prior notice and without a vote if a consent or consents in writing, setting forth
the action so taken, are signed by at least as many members of the Board of Directors or committee
thereof as would have been required to take such action at a meeting of the Board of Directors or
such committee. Members of the Board of Directors or any committee thereof may participate in and
hold a meeting by means of conference telephone, video conference or similar communications
equipment by means of which all Persons participating in the meeting can hear each other, and
participation in such meetings shall constitute presence in person at the meeting.
(e) Committees.
(i) Subject to compliance with this Article 6, committees of the Board of Directors shall have
and may exercise such of the powers and authority of the Board of Directors with respect to the
management of the business and affairs of the Company as may be provided in a resolution of the
Board of Directors. Any committee designated pursuant to this Section 6.02(e) shall choose its own
chairman, shall keep regular minutes of its proceedings and report the same to the Board of
Directors when requested, and, subject to Section 6.02(d), shall fix its own rules or procedures
and shall meet at such times and at such place or places as may be
9
provided by such rules or by
resolution of such committee or resolution of the Board of Directors. At every meeting of any such
committee, the presence of a majority of all the members thereof shall constitute a quorum and the
affirmative vote of a majority of the members present shall be necessary for the adoption by it of
any resolution (except for obtaining Special Approval at meetings of the Conflicts Committee, which
requires the affirmative vote of a majority of the members of such committee). The Board of
Directors may designate one or more Directors as alternate members of any committee who may replace
any absent or disqualified member at any meeting of such committee; provided, however, that any
such designated alternate of the Audit Committee or the Conflicts Committee must meet the standards
for an Independent Director. In the absence or disqualification of a member of a committee, the
member or members present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of the absent or disqualified member; provided, however, that any such
replacement member of the Audit Committee or the Conflicts Committee must meet the standards for an
Independent Director.
(ii) In addition to any other committees established by the Board of Directors pursuant to
Section 6.02(e)(i), the Board of Directors shall maintain a “Conflicts Committee,” which shall be composed of at least one Independent Director. The Conflicts
Committee shall be responsible for (A) approving or disapproving, as the case may be, any matters
regarding the business and affairs of the Company, DCP GP or the MLP considered by, or submitted
to, such Conflicts Committee at the request of the Board of Directors pursuant to the terms of the
DCP GP Agreement or the MLP Partnership Agreement, (B) approving any material amendments to the
Omnibus Agreement, (C) approving or disapproving, as the case may be, the entering into of any
material transaction with a Member or any Affiliate of a Member, other than transactions in the
ordinary course of business to the extent that the Board of Directors requests the Conflicts
Committee to make such determination, (D) amending (1) Section 2.07, (2) the definitions of
“Independent Director” in Section 6.02(a) or (3) this Section 6.02(e)(ii), and (E)
performing such other functions as the Board may assign from time to time or as may be specified in
a written charter of the Conflicts Committee. In acting or otherwise voting on the matters
referred to in this Section 6.02(e)(ii), to the fullest extent permitted by law, including Section
18-1101(c) of the Delaware Act and Section 17-1101(c) of the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time, the Directors constituting the Conflicts Committee
shall consider only the interest of the MLP, including its respective creditors.
(iii) In addition to any other committees established by the Board of Directors pursuant to
Section 6.02(e)(i), the Board of Directors shall maintain an “Audit Committee,” which shall be
composed of (A) at least one Independent Director at the time of the closing of the IPO, (B) at
least two Independent Directors at all times from and after the 90th day following the effective
date of the registration statement related to the IPO and (C) at least three Independent Directors
at all times from and after the first anniversary of the effective date of the registration
statement related to the IPO. The Audit Committee shall be responsible for (A) assisting the Board
in monitoring (1) the integrity of the MLP’s financial statements, (2) the qualifications and
independence of the MLP’s independent accountants, (3) the performance the internal audit function
and independent accountants of the Company, DCP GP and the MLP, and (4) the MLP’s compliance with
legal and regulatory requirements and (B) preparing the report
10
required by the rules of the SEC to be included in the MLP’s annual report on Form 10-K. The
Audit Committee shall perform such other functions as the Board may assign from time to time or as
may be specified in a written charter for the Audit Committee adopted by the Board.
(iv) In addition to any other committees established by the Board of Directors pursuant to
Section 6.02(e)(i), the Board of Directors shall maintain an “Compensation Committee,” which shall
be composed of at least one Independent Director. The Compensation Committee shall be responsible
for setting the compensation for officers of the Company as well as administering any incentive
plans adopted by the Company. The Compensation Committee shall perform such other functions as the
Board may assign from time to time or as may be specified in a written charter for the Compensation
Committee adopted by the Board.
6.03 Officers.
(a) Generally. The Board of Directors, as set forth below, shall appoint officers of the
Company (“Officers”), who shall (together with the Directors) constitute “managers” of the Company
for the purposes of the Delaware Act. Unless provided otherwise by resolution of the Board of
Directors, the Officers shall have the titles, power, authority and duties described below in this
Section 6.03.
(b) Titles and Number. The Company may appoint one or more officers including a Chairman of
the Board (unless the Board of Directors provides otherwise), a Chief Executive Officer, a
President, one or more Vice Presidents, a Secretary, the Chief Financial Officer, any Treasurer and
one or more Assistant Secretaries and Assistant Treasurers and a General Counsel. Any person may
hold more then one office.
(c) Appointment and Term of Office. The Officers shall be appointed by the Board of Directors
at such time and for such term as the Board of Directors shall determine. Any Officer may be
removed, with or without cause, only by the Board of Directors. Vacancies in any office may be
filled only by the Board of Directors.
(d) Chairman of the Board. The Chairman of the Board shall preside at all meetings of the
Board of Directors and of the unitholders of the MLP; and he shall have such other powers and
duties as from time to time may be assigned to him by the Board of Directors.
(e) Chief Executive Officer. Subject to the limitations imposed by this Agreement, any
employment agreement, any employee plan or any determination of the Board of Directors, the Chief
Executive Officer, subject to the direction of the Board of Directors, shall be the chief executive
officer of the Company and shall be responsible for the management and direction of the day-to-day
business and affairs of the Company, its other Officers, employees and agents, shall supervise
generally the affairs of the Company and shall have full authority to execute all documents and
take all actions that the Company may legally take. In the absence of the Chairman of the Board,
the Chief Executive Officer shall preside at all meetings of the unitholders of the MLP and at all
meetings of the Board of Directors provided that he is a director of the Company. The Chief
Executive Officer shall exercise such other powers and perform such other duties as may be assigned
to him by this Agreement or the Board of
11
Directors, including any duties and powers provided for in any employment agreement approved
by the Board of Directors.
(f) President. Subject to the limitations imposed by this Agreement, any employment
agreement, any employee plan or any determination of the Board of Directors, the President, subject
to the direction of the Board of Directors, shall be the chief executive officer of the Company in
the absence of a Chief Executive Officer and shall be responsible for the management and direction
of the day-to-day business and affairs of the Company, its other Officers, employees and agents,
shall supervise generally the affairs of the Company and shall have full authority to execute all
documents and take all actions that the Company may legally take. In the absence of the Chairman
of the Board and Chief Executive Officer, the President shall preside at all meetings of the
unitholders of the MLP and at all meetings of the Board of Directors provided that he is a director
of the Company. The President shall exercise such other powers and perform such other duties as
may be assigned to him by this Agreement or the Board of Directors, including any duties and powers
provided for in any employment agreement approved by the Board of Directors.
(g) Vice Presidents. In the absence of a Chief Executive Officer and the President, each Vice
President appointed by the Board of Directors shall have all of the powers and duties conferred
upon the President, including the same power as the President to execute documents on behalf of the
Company. Each such Vice President shall perform such other duties and may exercise such other
powers as may from time to time be assigned to him by the Board of Directors or the President.
(h) Secretary and Assistant Secretaries. The Secretary shall record or cause to be recorded
in books provided for that purpose the minutes of the meetings or actions of the Board of
Directors, shall see that all notices are duly given in accordance with the provisions of this
Agreement and as required by law, shall be custodian of all records (other than financial), shall
see that the books, reports, statements, certificates and all other documents and records required
by law are properly kept and filed, and, in general, shall perform all duties incident to the
office of Secretary and such other duties as may, from time to time, be assigned to him by this
Agreement, the Board of Directors or the President. The Assistant Secretaries shall exercise the
powers of the Secretary during that Officer’s absence or inability or refusal to act.
(i) Chief Financial Officer. The Chief Financial Officer shall keep and maintain, or cause to
be kept and maintained, adequate and correct books and records of account of the Company and DCP
GP. He shall receive and deposit all moneys and other valuables belonging to the Company in the
name and to the credit of the Company and shall disburse the same and only in such manner as the
Board of Directors or the appropriate Officer of the Company may from time to time determine. He
shall receive and deposit all moneys and other valuables belonging to DCP GP in the name and to the
credit of DCP GP and shall disburse the same and only in such manner as the Board of Directors or
the Chief Executive Officer may require. He shall render to the Board of Directors and the Chief
Executive Officer, whenever any of them request it, an account of all his transactions as Chief
Financial Officer and of the financial condition of the Company, and shall perform such further
duties as the Board of Directors or the Chief Executive Officer may require. The Chief Financial
Officer shall have the same power as the Chief Executive Officer to execute documents on behalf of
the Company.
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(j) Treasurer and Assistant Treasurers. The Treasurer shall have such duties as may be
specified by the Chief Financial Officer in the performance of his duties. The Assistant
Treasurers shall exercise the power of the Treasurer during that Officer’s absence or inability or
refusal to act. Each of the Assistant Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other instruments of the Company. If no
Treasurer or Assistant Treasurer is appointed and serving or in the absence of the appointed
Treasurer and Assistant Treasurer, any Vice President, or such other Officer as the Board of
Directors shall select, shall have the powers and duties conferred upon the Treasurer.
(k) General Counsel. The General Counsel, subject to the discretion of the Board of
Directors, shall be responsible for the management and direction of the day-to-day legal affairs of
the Company. The General Counsel shall perform such other duties and may exercise such other
powers as may from time to time be assigned to him by the Board of Directors or the President.
(l) Powers of Attorney. The Company may xxxxx xxxxxx of attorney or other authority as
appropriate to establish and evidence the authority of the Officers and other persons.
(m) Delegation of Authority. Unless otherwise provided by resolution of the Board of
Directors, no Officer shall have the power or authority to delegate to any person such Officer’s
rights and powers as an Officer to manage the business and affairs of the Company.
(n) Tenure. The Board of Directors shall appoint Officers of the Company to serve from the
date hereof until the death, resignation or removal by the Board of Directors with or without cause
of such Officer.
6.04 Duties of Officers and Directors. Except as otherwise specifically provided in this Agreement or in the MLP Partnership Agreement,
the duties and obligations owed to the Company and to the Board of Directors by the Officers of the
Company and by members of the Board of Directors of the Company shall be the same as the respective
duties and obligations owed to a corporation organized under the Delaware General Corporation Law
by its officers and directors, respectively.
6.05 Compensation. The members of the Board of Directors who are neither Officers nor employees of the Company
shall be entitled to compensation as directors and committee members as approved by the Board and
shall be reimbursed for out-of-pocket expenses incurred in connection with attending meetings of
the Board of Directors or committees thereof.
6.06 Indemnification.
(a) To the fullest extent permitted by Law but subject to the limitations expressly provided
in this Agreement, each Indemnitee shall be indemnified and held harmless by the Company from and
against any and all losses, claims, damages, liabilities, joint or several,
expenses (including reasonable legal fees and expenses), judgments, fines, penalties,
interest, settlements and other amounts arising from any and all claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative or investigative, in which any such Indemnitee
may be involved, or is threatened to be involved, as a party or otherwise, by reason of such
person’s status as an Indemnitee; provided, however that the Indemnitee shall not be
13
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 6.06, 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; provided, further, no indemnification pursuant to this Section
6.06 shall be available to the Members or their Affiliates (other than the MLP and any Group
Member) with respect to its or their obligations incurred pursuant to the Underwriting Agreement,
the Omnibus Agreement or the Contribution Agreement. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not create a presumption that the Indemnitee acted in a manner contrary to that
specified above. Any indemnification pursuant to this Section 6.06 shall be made only out of the
assets of the Company, it being agreed that the Members 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 reasonable legal fees and
expenses) incurred by an Indemnitee who is indemnified pursuant to Section 6.06(a) in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company
prior to the final disposition of such claim, demand, action, suit or proceeding 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
6.06.
(c) The indemnification provided by this Section 6.06 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, 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 the Indemnitee.
(d) The Company may purchase and maintain insurance, on behalf of the members of the Board of
Directors, the Officers and such other persons as the Board of Directors 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, 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 6.06, the Company shall be deemed to have requested an
Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by the
Indemnitee of such Indemnitee’s duties to the Company also imposes duties on, or otherwise involves
services by, the Indemnitee 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 6.06(a); and
action taken or omitted by the Indemnitee with respect to an employee benefit plan in the
performance of such Indemnitee’s duties for a purpose reasonably believed by such Indemnitee to be
in the interest of the participants and beneficiaries of the plan shall be deemed to be for a
purpose which is in, or not opposed to, the best interests of the Company.
14
(f) An Indemnitee shall not be denied indemnification in whole or in part under this Section
6.06 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.
(g) The provisions of this Section 6.06 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.
(h) No amendment, modification or repeal of this Section 6.06 or any provision hereof shall in
any manner terminate, reduce or impair either the right of any past, present or future Indemnitee
to be indemnified by the Company or the obligation of the Company to indemnify any such Indemnitee
under and in accordance with the provisions of this Section 6.06 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, provided such Person became an Indemnitee hereunder prior to
such amendment, modification or repeal.
(i) THE PROVISIONS OF THE INDEMNIFICATION PROVIDED IN THIS SECTION 6.06 ARE INTENDED BY THE
PARTIES TO APPLY EVEN IF SUCH PROVISIONS HAVE THE EFFECT OF EXCULPATING THE INDEMNITEE FROM LEGAL
RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH PERSON’S NEGLIGENCE, FAULT OR OTHER CONDUCT.
6.07 Liability of Indemnitees.
(a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall
be liable for monetary damages to the Company, the Members or any other Person for losses sustained
or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a
final and non-appealable judgment entered by a court of competent jurisdiction determining that, in
respect of the matter in question, 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 criminal.
(b) Subject to its obligations and duties as set forth in this Article 6, the Board of
Directors and any committee thereof may exercise any of the powers granted to it by this Agreement
and perform any of the duties imposed upon it hereunder either directly or by or through the
Company’s Officers or agents, and neither the Board of Directors nor any committee
thereof shall be responsible for any misconduct or negligence on the part of any such Officer
or agent appointed by the Board of Directors or any committee thereof in good faith.
(c) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary
duties) and liabilities relating thereto to the Partnership or to the Partners, the General Partner
and any other Indemnitee acting in connection with the Partnership’s business or affairs shall not
be liable to the Partnership or to any Partner for any acts or omissions taken in good faith
reliance on the provisions of this Agreement.
15
(d) Any amendment, modification or repeal of this Section 6.07 or any provision hereof shall
be prospective only and shall not in any way affect the limitations on liability under this Section
6.07 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 be asserted.
6.08 Outside Activities.
(a) Except as specifically restricted by the provisions of the DCP GP Agreement or the MLP
Partnership Agreement, each Indemnitee, other than officers or employees of the Company, shall have
the right to engage in businesses of every type and description and other activities for profit and
to engage in and possess an interest in other business ventures of any and every type or
description, whether in businesses engaged in or anticipated to be engaged in by the Company or its
Subsidiaries, independently or with others, including business interests and activities in direct
competition with the business and activities of the Company or its Subsidiaries, and none of the
same shall constitute a breach of this Agreement or any duty expressed or implied by Law to the
Company or its Subsidiaries or any Member. Neither the Company or its Subsidiaries, any Member nor
any other Person shall have any rights by virtue of this Agreement, the DCP GP Agreement or the MLP
Partnership Agreement or the partnership relationship established hereby or thereby in any business
ventures of any Indemnitee.
(b) Notwithstanding anything to the contrary in this Agreement, (i) the engaging in
competitive activities by any Indemnitees, other than officers or employees of the Company, in
accordance with the provisions of this Section 6.08 is hereby approved by the Company and all
Members, (ii) it shall be deemed not to be a breach of any fiduciary duty or any other obligation
of any type whatsoever of any Indemnitee, other than officers or employees of the Company, for such
Indemnitees to engage in such business interests and activities in preference to or to the
exclusion of the Company and (iii) the Indemnitees, other than Officers or employees of the
Company, shall have no obligation hereunder or as a result of any duty expressed or implied by Law
to present business opportunities to the Company, DCP GP or the MLP.
(c) Each Member and each of its Affiliates may acquire additional Membership Interests and,
except as otherwise provided in this Agreement, shall be entitled to exercise, at their option, all
rights relating to such Membership Interests.
6.09 Resolution of Conflicts of Interest; Standard of Conduct and Modification of Duties.
(a) Unless otherwise expressly provided in this Agreement, whenever a potential conflict of
interest exists or arises between the Members or any of their Affiliates (other than the MLP or any
Group Member), on the one hand, and the MLP or any Group Member, on the other hand, any resolution
or course of action by the Board of Directors in respect of such conflict of interest shall be
permitted and deemed approved by all Members, and shall not constitute a breach of this Agreement
or of any agreement contemplated herein or therein, or of
16
any duty stated or implied by law or
equity, if the resolution or course of action in respect of such conflict of interest is (i)
approved by Special Approval, (ii) approved by the vote of a majority of the Units excluding Units
owned by the Members and their Affiliates, (iii) on terms no less favorable to the MLP or Group
Member, as the case may be, than those generally being provided to or available from unrelated
third parties or (iv) fair and reasonable to the MLP or Group Member, as the case may be, taking
into account the totality of the relationships between the parties involved (including other
transactions that may be particularly favorable or advantageous to the MLP or Group Member, as the
case may be). The Board of Directors shall be authorized but not required in connection with its
resolution of such conflict of interest to seek Special Approval of such resolution, and the Board
of Directors may also adopt a resolution or course of action that has not received Special
Approval. If Special Approval is not sought and the Board of Directors determines that the
resolution or course of action taken with respect to a conflict of interest satisfies either of the
standards set forth in clauses (iii) or (iv) above, then it shall be presumed that, in making its
decision, the Board of Directors acted in good faith, and in any proceeding brought by any Member
or by or on behalf of such Member or the MLP or Group Member, as the case may be, challenging such
approval, the Person bringing or prosecuting such proceeding shall have the burden of overcoming
such presumption.
(b) Whenever the Company makes a determination or takes or declines to take any other action,
or any of its Affiliates causes it to do so, in its capacity as the general partner of the General
Partner of the MLP as opposed to in its individual capacity, whether under this Agreement, or any
other agreement contemplated hereby or otherwise, then unless another express standard is provided
for in this Agreement, the Company, or such Affiliates causing it to do so, shall make such
determination or take or decline to take such other action in good faith and shall not be subject
to any other or different standards imposed by this Agreement, any other agreement contemplated
hereby or under the Delaware Act or any other law, rule or regulation or at equity. In order for a
determination or other action to be in “good faith” for purposes of any action taken or delivered
to be taken by the Company in its capacity as the general partner of the General Partner of the
MLP, the Person or Persons making such determination or taking or declining to take such other
action must believe that the determination or other action is in the best interests of the MLP.
(c) Whenever the Company makes a determination or takes or declines to take any other action,
or any of its Affiliates causes it to do so, in its individual capacity as opposed to in its
capacity as a general partner of the General Partner of the MLP, whether under this Agreement or
any other agreement contemplated hereby or otherwise, then the Company, or such Affiliates causing
it to do so, are entitled to make such determination or to take or decline to take such other
action free of any fiduciary duty or obligation whatsoever to the MLP or any
partner thereof, and the Company, or such Affiliates causing it to do so, shall not be
required to act in good faith or pursuant to any other standard imposed by this Agreement, any
other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation.
By way of illustration and not of limitation, whenever the phrase, “at the option of the Company,”
or some variation of that phrase, is used in this Agreement, it indicates that the Company is
acting in its individual capacity. For the avoidance of doubt, whenever the Company votes or
transfers its MLP Interests, or refrains from voting or transferring its MLP Interests, it shall be
acting in its individual capacity.
17
(d) Notwithstanding anything to the contrary in this Agreement, the Company and its Affiliates
shall have no duty or obligation, express or implied, to (i) sell or otherwise dispose of any asset
of the MLP or any Group Member or (ii) permit the MLP or any Group Member to use any facilities or
assets of the Company and its Affiliates, except as may be provided in contracts entered into from
time to time specifically dealing with such use. Any determination by the Company or any of its
Affiliates to enter into such contracts shall be at its option.
(e) Whenever a particular transaction, arrangement or resolution of a conflict of interest is
required under this Agreement to be “fair and reasonable” to any Person, the fair and reasonable
nature of such transaction, arrangement or resolution shall be considered in the context of all
similar or related transactions.
ARTICLE 7
TAX MATTERS
TAX MATTERS
7.01 Tax Returns and Tax Characterization.
(a) The Board of Directors shall cause to be prepared and timely filed (on behalf of the
Company) all federal, state and local tax returns required to be filed by the Company, including
making all elections on such tax returns. The Company shall bear the costs of the preparation and
filing of its returns.
(b) The Company and the Member acknowledge that for federal income tax purposes, the Company
will be disregarded as an entity separate from the Member pursuant to Treasury Regulation
§301.7701-3 as long as all of the Membership Interests in the Company are owned by DEFS.
ARTICLE 8
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
BOOKS, RECORDS, REPORTS, AND BANK ACCOUNTS
8.01 Maintenance of Books.
(a) The Board of Directors shall keep or cause to be kept at the principal office of the
Company or at such other location approved by the Board of Directors complete and
accurate books and records of the Company, supporting documentation of the transactions with
respect to the conduct of the Company’s business and minutes of the proceedings of the Board of
Directors and any other books and records that are required to be maintained by applicable Law.
(b) The books of account of the Company shall be maintained on the basis of a fiscal year that
is the calendar year and on an accrual basis in accordance with United States generally accepted
accounting principles, consistently applied.
8.02 Reports. The Board of Directors shall cause to be prepared and delivered to each Member such reports,
forecasts, studies, budgets and other information as the Members may reasonably request from time
to time.
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8.03 Bank Accounts. Funds of the Company shall be deposited in such banks or other depositories as shall be
designated from time to time by the Board of Directors. All withdrawals from any such depository
shall be made only as authorized by the Board of Directors and shall be made only by check, wire
transfer, debit memorandum or other written instruction.
ARTICLE 9
DISSOLUTION, WINDING-UP AND TERMINATION
DISSOLUTION, WINDING-UP AND TERMINATION
9.01 Dissolution.
(a) Subject to compliance with Section 6.01(c), the Company shall dissolve and its affairs
shall be wound up on the first to occur of the following events (each a “Dissolution Event”):
(i) the unanimous consent of the Board of Directors;
(ii) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the
Delaware Act; and
(iii) at any time there are no Members of the Company, unless the Company is continued in
accordance with the Delaware Act or this Agreement.
(b) No other event shall cause a dissolution of the Company.
(c) Upon the occurrence of any event that causes there to be no Members of the Company, to the
fullest extent permitted by law, the personal representative of the last remaining Member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that terminated the
continued membership of such Member in the Company, agree in writing (i) to continue the Company
and (ii) to the admission of the personal representative or its nominee or designee, as the case
may be, as a substitute Member of the Company, effective as of
the occurrence of the event that terminated the continued membership of such Member in the
Company.
(d) Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member shall
not cause such Member to cease to be a member of the Company, and, upon the occurrence of such an
event, the Company shall continue without dissolution.
9.02 Winding-Up and Termination.
(a) On the occurrence of a Dissolution Event, the Board of Directors shall select one or more
Persons to act as liquidator. The liquidator shall proceed diligently to wind up the affairs of
the Company and make final distributions as provided herein and in the Delaware Act. The costs of
winding up shall be borne as a Company expense. Until final distribution, the liquidator shall
continue to operate the Company properties with all of the power and authority of the Board of
Directors. The steps to be accomplished by the liquidator are as follows:
(i) as promptly as possible after dissolution and again after final winding up, the liquidator
shall cause a proper accounting to be made by a recognized firm of
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certified public accountants of
the Company’s assets, liabilities, and operations through the last calendar day of the month in
which the dissolution occurs or the final winding up is completed, as applicable;
(ii) the liquidator shall discharge from Company funds all of the debts, liabilities and
obligations of the Company or otherwise make adequate provision for payment and discharge thereof
(including the establishment of a cash escrow fund for contingent liabilities in such amount and
for such term as the liquidator may reasonably determine); and
(iii) all remaining assets of the Company shall be distributed to the Members as follows:
(A) the liquidator may sell any or all Company property, including to Members;
and
(B) Company property (including cash) shall be distributed to the Members.
(b) The distribution of cash or property to a Member in accordance with the provisions of this
Section 9.02 constitutes a complete return to the Member of its Capital Contributions and a
complete distribution to the Member of its share of all the Company’s property and constitutes a
compromise to which all Members have consented within the meaning of Section 18-502(b) of the
Delaware Act. No Member shall be required to make any Capital Contribution to the Company to
enable the Company to make the distributions described in this Section 9.02.
(c) On completion of such final distribution, the liquidator shall file a certificate of
cancellation with the Secretary of State of the State of Delaware and take such other actions as
may be necessary to terminate the existence of the Company.
ARTICLE 10
MERGER, CONSOLIDATION OR CONVERSION
MERGER, CONSOLIDATION OR CONVERSION
10.01 Authority. Subject to compliance with Section 6.01(c), the Company may merge or consolidate with one or
more corporations, limited liability companies, statutory trusts or associations, real estate
investment trusts, common law trusts or unincorporated businesses, including a partnership (whether
general or limited (including a limited liability partnership)) or convert into any such entity,
whether such entity is formed under the laws of the State of Delaware or any other state of the
United States of America, pursuant to a written agreement of merger or consolidation (“Merger
Agreement”) or a written plan of conversion (“Plan of Conversion”), as the case may be, in
accordance with this Article 10. The surviving entity to any such merger, consolidation or
conversion is referred to herein as the “Surviving Business Entity.”
10.02 Procedure for Merger, Consolidation or Conversion.
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(a) The merger, consolidation or conversion of the Company pursuant to this Article 10
requires the prior approval of a majority of the Board of Directors and compliance with Section
10.03.
(b) If the Board of Directors shall determine to consent to a merger or consolidation, the
Board of Directors shall approve the Merger Agreement, which shall set forth:
(i) the names and jurisdictions of formation or organization of each of the business entities
proposing to merge or consolidate;
(ii) the name and jurisdiction of formation or organization of the Surviving Business Entity
that is to survive the proposed merger or consolidation;
(iii) the terms and conditions of the proposed merger or consolidation;
(iv) the manner and basis of exchanging or converting the equity securities of each
constituent business entity for, or into, cash, property or interests, rights, securities or
obligations of the Surviving Business Entity; and (A) if any general or limited partner interests,
securities or rights of any constituent business entity are not to be exchanged or converted solely
for, or into, cash, property or general or limited partner interests, rights, securities or
obligations of the Surviving Business Entity, the cash, property or interests, rights, securities
or obligations of any general or limited partnership, corporation, trust, limited liability
company, unincorporated business or other entity (other than the Surviving Business Entity) which
the holders of such general or limited partner interests, securities or rights are to receive in
exchange for, or upon conversion of their interests, securities or rights, and (B) in the case of
securities represented by certificates, upon the surrender of such certificates, which cash,
property or general or limited partner interests, rights, securities or obligations of the
Surviving Business Entity or any general or limited partnership, corporation, trust, limited
liability company, unincorporated business or other entity (other than the Surviving Business
Entity), or evidences thereof, are to be delivered;
(v) a statement of any changes in the constituent documents or the adoption of new constituent
documents (the articles or certificate of incorporation, articles of trust, declaration of trust,
certificate or agreement of limited partnership, operating agreement or other similar charter or
governing document) of the Surviving Business Entity to be effected by such merger or
consolidation;
(vi) the effective time of the merger, which may be the date of the filing of the certificate
of merger pursuant to Section 10.04 or a later date specified in or determinable in accordance with
the Merger Agreement (provided, that if the effective time of the merger is to be later than the
date of the filing of such certificate of merger, the effective time shall be fixed at a date or
time certain at or prior to the time of the filing of such certificate of merger and stated
therein); and
(vii) such other provisions with respect to the proposed merger or consolidation as are deemed
necessary or appropriate by the Board of Directors.
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(c) If the Board of Directors shall determine to consent to the conversion, the Board of
Directors shall approve and adopt a Plan of Conversion containing such terms and conditions that
the Board of Directors determines to be necessary or appropriate.
10.03 Approval by Members of Merger or Consolidation.
(a) The Board of Directors, upon its approval of the Merger Agreement or Plan of Conversion,
as the case may be, shall direct that the Merger Agreement or the Plan of Conversion, as
applicable, be submitted to a vote of the Members, whether at a meeting or by written consent. A
copy or a summary of the Merger Agreement or the Plan of Conversion, as applicable, shall be
included in or enclosed with the notice of a special meeting or the written consent.
(b) The Merger Agreement or the Plan of Conversion, as applicable, shall be approved upon
receiving the affirmative vote or consent of the holders of a majority of the Members.
(c) After such approval by vote or consent of the Limited Partners, and at any time prior to
the filing of the certificate of merger, consolidation or conversion pursuant to Section 10.04, the
merger, consolidation or conversion may be abandoned pursuant to provisions therefor, if any, set
forth in the Merger Agreement or the Plan of Conversion, as the case may be.
10.04 Certificate of Merger, Consolidation or Conversion.
(a) Upon the required approval, if any, by the Board of Directors and the Members of a Merger
Agreement or a Plan of Conversion, as the case may be, a certificate of merger, consolidation or
conversion, as applicable, shall be executed and filed with the Secretary of State of the State of
Delaware in conformity with the requirements of the Delaware Act.
(b) At the effective time of the certificate of merger or consolidation:
(i) all of the rights, privileges and powers of each of the business entities that has merged
or consolidated, and all property, real, personal and mixed, and all debts due to any of those
business entities and all other things and causes of action belonging to each of those business
entities shall be vested in the Surviving Business Entity and after the merger or consolidation
shall be the property of the Surviving Business Entity to the extent they were property of each
constituent business entity;
(ii) the title to any real property vested by deed or otherwise in any of those constituent
business entities shall not revert and is not in any way impaired because of the merger or
consolidation;
(iii) all rights of creditors and all liens on or security interest in property of any of
those constituent business entities shall be preserved unimpaired; and
(iv) all debts, liabilities and duties of those constituent business entities shall attach to
the Surviving Business Entity, and may be enforced against it to the same extent as if the debts,
liabilities and duties had been incurred or contracted by it.
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(c) At the effective time of the certificate of conversion:
(i) the Company shall continue to exist, without interruption, but in the organizational form
of the converted entity rather than in its prior organizational form;
(ii) all rights, title, and interests to all real estate and other property owned by the
Company shall continue to be owned by the converted entity in its new organizational form without
reversion or impairment, without further act or deed, and without any transfer or assignment having
occurred, but subject to any existing liens or other encumbrances thereon;
(iii) all liabilities and obligations of the Company shall continue to be liabilities and
obligations of the converted entity in its new organizational form without impairment or diminution
by reason of the conversion;
(iv) all rights of creditors or other parties with respect to or against the prior interest
holders or other owners of the Company in their capacities as such in existence as of the effective
time of the conversion will continue in existence as to those liabilities and obligations and may
be pursued by such creditors and obligees as if the conversion did not occur;
(v) a proceeding pending by or against the Company or by or against any of the Members in
their capacities as such may be continued by or against the converted entity in its new
organizational form and by or against the prior members without any need for substitution of
parties; and
(vi) the Company securities that are to be converted into partnership interests, shares,
evidences of ownership, or other securities in the converted entity as provided in the Plan of
Conversion or certificate of conversion shall be so converted, and the Members shall be entitled
only to the rights provided in the Plan of Conversion or certificate of conversion.
(d) A merger, consolidation or conversion effected pursuant to this Article 10 shall not (i)
be deemed to result in a transfer or assignment of assets or liabilities from one entity to another
having occurred or (ii) require the Company (if it is not the Surviving Business Entity) to wind up
its affairs, pay its liabilities or distribute its assets as required under Article 9 of this
Agreement or under the applicable provisions of the Delaware Act.
ARTICLE 11
GENERAL PROVISIONS
GENERAL PROVISIONS
11.01 Notices. Except as expressly set forth to the contrary in this Agreement, all notices, requests or
consents provided for or permitted to be given under this Agreement must be in writing and must be
delivered to the recipient in person, by courier or mail or by facsimile or other electronic
transmission and a notice, request or consent given under this Agreement is effective on receipt by
the Person to receive it; provided, however, that a facsimile or other electronic transmission that
is transmitted after the normal business hours of the recipient shall be deemed effective on the
next Business Day. All notices, requests and consents to be sent to a Member must be sent to or
made at the addresses given for that Member as that Member may specify by notice to the other
Members. Any notice, request or consent to the Company must be
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given to all of the Members.
Whenever any notice is required to be given by applicable Law, the Organizational Certificate or
this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of such notice.
Whenever any notice is required to be given by Law, the Organizational Certificate or this
Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of such notice.
11.02 Entire Agreement; Supersedure. This Agreement constitutes the entire agreement of the Members and
their respective Affiliates relating to the subject matter hereof and supersedes all prior
contracts or agreements with respect to such subject matter, whether oral or written.
11.03 Effect of Waiver or Consent. Except as provided in this Agreement, a waiver or consent, express or
implied, to or of any breach or default by any Person in the performance by that Person of its
obligations with respect to the Company is not a consent or waiver to or of any other breach or
default in the performance by that Person of the same or any other obligations of that Person with
respect to the Company. Except as provided in this Agreement, failure on the part of a Person to
complain of any act of any Person or to declare any Person in default with respect to the Company,
irrespective of how long that failure continues, does not constitute a waiver by that Person of its
rights with respect to that default until the applicable statute-of-limitations period has run.
11.04 Amendment or Restatement. This Agreement may be amended or restated only by a written instrument
executed by all Members; provided, however, that notwithstanding anything to the contrary contained
in this Agreement, each Member agrees that the Board of Directors, without the approval of any
Member, may amend any provision of the Organizational Certificate and this Agreement, and may
authorize any Officer to execute, swear to, acknowledge, deliver, file and record any such
amendment and whatever documents may be required in connection therewith, to reflect any change
that does not require consent or approval (or for which such consent or approval has been obtained)
under this Agreement or does not materially adversely affect the rights of the Members.
11.05 Binding Effect. This Agreement is binding on and shall inure to the benefit of the Members and
their respective heirs, legal representatives, successors and assigns.
11.06 Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct
conflict between the provisions of this Agreement and (a) any provision of the Organizational
Certificate, or (b) any mandatory, non-waivable provision of the Delaware Act, such provision of
the Organizational Certificate or the Delaware Act shall control. If any provision of the Delaware
Act provides that it may be varied or superseded in the limited liability company agreement (or
otherwise by agreement of the members or managers of a limited liability company), such provision
shall be deemed superseded and waived in its entirety if this Agreement contains a provision
addressing
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the same issue or subject matter. If any provision of this Agreement or the application
thereof to any Person or circumstance is held invalid or unenforceable to any extent, (a) the
remainder of this Agreement and the application of that provision to other Persons or circumstances
is not affected thereby and that provision shall be enforced to the greatest extent permitted by
Law, and (b) the Members or Directors (as the case may be) shall negotiate in good faith to replace
that provision with a new provision that is valid and enforceable and that puts the Members in
substantially the same economic, business and legal position as they would have been in if the
original provision had been valid and enforceable.
11.07 Further Assurances. In connection with this Agreement and the transactions contemplated hereby,
each Member shall execute and deliver any additional documents and instruments and perform any
additional acts that may be necessary or appropriate to effectuate and perform the provisions of
this Agreement and those transactions.
11.08 Offset. Whenever the Company is to pay any sum to any Member, any amounts that a Member owes the
Company may be deducted from that sum before payment.
11.09 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as
if all signing parties had signed the same document. All counterparts shall be construed together
and constitute the same instrument.
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IN WITNESS WHEREOF, DEFS has executed this Agreement as the sole member as of the date first
set forth above.
MEMBER: DUKE ENERGY FIELD SERVICES, LLC |
||||
By: | /s/ Xxxxx X. Xxxxxx | |||
Name: | Xxxxx X. Xxxxxx | |||
Title: | Vice President, General Counsel and Secretary |
Signature
Page — Amended and Restated Limited Liability Agreement
of DCP Midstream GP, LLC
Attachment I
Defined Terms
Affiliate — with respect to any Person, each Person Controlling, Controlled by or under
common Control with such first Person; provided that, for the evidence of doubt, the term
“Affiliate,” includes any Person that, directly or indirectly, is the beneficial owner of at least
25% of the equity interest in DEFS or has the right to appoint at least 25% of the members of the
board of directors of DEFS.
Agreement — this Amended and Restated Limited Liability Company Agreement of DCP Midstream
GP, LLC, as the same may be amended, modified, supplemented or restated from time to time.
Audit Committee — Section 6.02(e)(iii).
Available Cash — as of any Distribution Date, (a) all cash and cash equivalents of the
Company on hand on such date, less (b) the amount of any cash reserves determined to be appropriate
by the Board of Directors.
Bankruptcy or Bankrupt — with respect to any Person, that (a) such Person (i) makes an
assignment for the benefit of creditors; (ii) files a voluntary petition in bankruptcy; (iii) is
insolvent, or has entered against such Person an order for relief in any bankruptcy or insolvency
proceeding; (iv) files a petition or answer seeking for such Person any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar relief under any Law;
(v) files an answer or other pleading admitting or failing to contest the material allegations of a
petition filed against such Person in a proceeding of the type described in subclauses (i) through
(iv) of this clause (a); or (vi) seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator of such Person or of all or any substantial part of such Person’s
properties; or (b) 120 Days have passed after the commencement of any proceeding seeking
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief
under any Law, if the proceeding has not been dismissed, or 90 Days have passed after the
appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of
such Person or of all or any substantial part of such Person’s properties, if the appointment is
not vacated or stayed, or 90 Days have passed after the date of expiration of any such stay, if the
appointment has not been vacated.
Board of Directors or Board — Section 6.01.
Business Day — any Day other than a Saturday, a Sunday or a Day on which national banking
associations in the State of Texas are authorized or required by Law to close.
Capital Contribution — Section 4.01(b).
Class B Units has the meaning ascribed to such term in the MLP Partnership Agreement.
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Commitment — means (a) options, warrants, convertible securities, exchangeable securities,
subscription rights, conversion rights, exchange rights, or other contracts, agreements or
commitments that could require a Person to issue any of its Equity Interests or to sell any Equity
Interests it owns in another Person; (b) any other securities convertible into, exchangeable or
exercisable for, or representing the right to subscribe for any Equity Interest of a Person or
owned by a Person; (c) statutory or contractual pre-emptive rights or pre-emptive rights granted
under a Person’s organizational or constitutive documents; and (d) stock appreciation rights,
phantom stock, profit participation, or other similar rights with respect to a Person.
Company — initial paragraph of this Agreement.
Compensation Committee — Section 6.02(e)(iv)
Conflicts Committee — Section 6.02(e)(ii).
Contribution Agreement has the meaning ascribed to such term in the MLP Partnership Agreement.
Control — shall mean the possession, directly or indirectly, of the power and authority to
direct or cause the direction of the management and policies of a Person, whether through ownership
or control of Voting Stock, by contract or otherwise.
Day — a calendar Day; provided, however, that, if any period of Days referred to in this
Agreement shall end on a Day that is not a Business Day, then the expiration of such period shall
be automatically extended until the end of the first succeeding Business Day.
DCP GP — DCP Midstream GP, LP, as the general partner of the MLP.
DCP GP Agreement — the First Amended and Restated Agreement of Limited Partnership of DCP
Midstream GP, LP, dated effective as of December 7, 2005, as amended, supplemented, amended and
restated, or otherwise modified from time to time.
DEFS — initial paragraph of this Agreement.
DEFS LLC Agreement — means the Second Amended and Restated Limited Liability Company
Agreement of DEFS.
Delaware Act — the Delaware Limited Liability Company Act and any successor statute, as
amended from time to time.
Delaware General Corporation Law — Title 8 of the Delaware Code, as amended from time to
time.
Director — each member of the Board of Directors elected as provided in Section 6.02.
Dissolution Event — Section 9.01(a).
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Distribution Date — Section 5.01.
Effective Date — initial paragraph of this Agreement.
Equity Interest — (a) with respect to a corporation, any and all shares of capital stock and
any Commitments with respect thereto, (b) with respect to a partnership, limited liability company,
trust or similar Person, any and all units, interests or other partnership, limited liability
company, trust or similar interests, and any Commitments with respect thereto, and (c) any other
direct or indirect equity ownership or participation in a Person (including any incentive
distribution rights).
Existing Agreement — Recitals.
Extraordinary Approval — written approval of DEFS.
Group Member — means any of the MLP and its Subsidiaries.
Incentive Distribution Rights — has the meaning ascribed thereto in the MLP Partnership
Agreement.
Indemnitee — each of (a) the Company and any Person who is or was an Affiliate of the
Company, (b) any Person who is or was a member, director, officer, fiduciary or trustee of the
Company, (c) any Person who is or was an officer, member, partner, director, employee, agent or
trustee of the General Partner or any Affiliate of the General Partner, or any Affiliate of any
such Person, and (d) any Person who is or was serving at the request of the General Partner or any
such Affiliate as a director, officer, employee, member, partner, agent, fiduciary or trustee of
another Person; provided, that a Person shall not be an Indemnitee by reason of providing, on a
fee-for-services basis, trustee, fiduciary or custodial services and (e) any Person the Company
designates as an “Indemnitee” for purposes of this Agreement.
Independent Director — Section 6.02(a).
Law — any applicable constitutional provision, statute, act, code, law, regulation, rule,
ordinance, order, decree, ruling, proclamation, resolution, judgment, decision, declaration or
interpretative or advisory opinion or letter of a governmental authority.
Liability — any liability or obligation, whether known or unknown, asserted or unasserted,
absolute or contingent, matured or unmatured, conditional or unconditional, latent or patent,
accrued or unaccrued, liquidated or unliquidated, or due or to become due.
Member — any Person executing this Agreement as of the date of this Agreement as a member or
hereafter admitted to the Company as a member as provided in this Agreement, but such term does not
include any Person who has ceased to be a member in the Company.
Membership Interest — with respect to any Member, (a) that Member’s status as a Member; (b)
that Member’s share of the income, gain, loss, deduction and credits of, and the right to receive
distributions from, the Company; (c) all other rights, benefits and privileges enjoyed by that
Member (under the Delaware Act, this Agreement or otherwise) in its capacity as
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a Member; and (d) all obligations, duties and liabilities imposed on that Member (under the
Delaware Act, this Agreement or otherwise) in its capacity as a Member, including any obligations
to make Capital Contributions.
Merger Agreement — Section 10.01.
MLP — DCP Midstream Partners, LP, a Delaware limited partnership.
MLP Interests — the limited partner interests of the MLP, regardless of class or category of
limited partner interests.
MLP Partnership Agreement — means the Amended and Restated Agreement of Limited Partnership
of the MLP, dated as of December 7, 2005, as amended or restated from time to time.
National Securities Exchange has the meaning ascribed to such term in the MLP Partnership
Agreement.
Officers — any person elected as an officer of the Company as provided in Section 6.03(a),
but such term does not include any person who has ceased to be an officer of the Company.
Omnibus Agreement — Omnibus Agreement, dated December 7, 2005, among the Company, DCP GP and
DEFS, as amended or restated from time to time.
Organizational Certificate — Section 2.01.
Partnership Securities has the meaning ascribed to such term in the MLP Partnership Agreement.
Person — a natural person, partnership (whether general or limited), limited liability
company, governmental entity, trust, estate, association, corporation, venture, custodian, nominee
or any other individual or entity in its own or any representative capacity.
Plan of Conversion — Section 10.01.
Quarter — unless the context requires otherwise, a calendar quarter.
SEC — the United States Securities and Exchange Commission.
Special Approval —approval by a majority of the members of the Conflicts Committee.
Subsidiary — with respect to any relevant Person, (a) a corporation of which more than 50% of
the Voting Stock is owned, directly or indirectly, at the date of determination, by such relevant
Person, by one or more Subsidiaries of such relevant Person or a combination thereof, (b) a
partnership (whether general or limited) in which such relevant Person, one or more Subsidiaries of
such relevant Person or a combination thereof is, at the date of
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determination, a general or limited partner of such partnership, but only if more than 50% of
the partnership interests of such partnership (considering all of the partnership interests of the
partnership as a single class) is owned, directly or indirectly, at the date of determination, by
such relevant Person, by one or more Subsidiaries of such relevant Person, or a combination
thereof, or (c) any other Person (other than a corporation or a partnership) in which such relevant
Person, one or more Subsidiaries of such relevant 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 other Person.
Surviving Business Entity — Section 10.01.
Underwriting Agreement has the meaning ascribed to such term in the MLP Partnership
Agreement.
Units has the meaning ascribed to such term in the MLP Partnership Agreement.
Voting Stock — with respect to any Person, Equity Interests in such Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for the election of, or
otherwise appoint, directors (or Persons with management authority performing similar functions) of
such Person.
Withdraw, Withdrawing and Withdrawal — the withdrawal, resignation or retirement of a Member
from the Company as a Member.
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