AMENDMENT NO. 1 TO AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
Exhibit 10.2
AMENDMENT NO. 1 TO
AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
This Amendment No. 1 (this “Amendment No. 1”) to the Amended and Restated Investors’
Rights Agreement, dated as of November 1, 2007 (the “XXX”) by and among Quest Midstream
Partners, L.P. (the “Company”), Quest Midstream GP, LLC (the “GP”), Quest Resource
Corporation (“QRC”) and the Investors is made and entered into effective as of July 1,
2009, by and among the Company, the GP, QRC and the undersigned Investors representing at least a
Majority of Investors. Capitalized terms used but not defined herein are used as defined in the
XXX.
WHEREAS, the Company, the GP, QRC and the Investors entered into the XXX;
WHEREAS, the Company, QRC, and Quest Energy Partners, L.P. (“QELP”) have determined
that it is advisable to effect the Recombination (as defined below);
WHEREAS, it is a condition to the Recombination that the XXX shall be terminated on or prior
to the closing of the Recombination;
WHEREAS, Alerian has agreed to terminate its rights under Section 2 related to its right to
designate a board member;
WHEREAS, pursuant to Section 9(b) of the XXX, the XXX may be amended by written agreement of
the Company, the GP, QRC and a Majority of Investors; and
WHEREAS, the Company, the GP, QRC and the undersigned Investors representing at least a
Majority of Investors desire to amend the XXX as set forth herein.
NOW THEREFORE, the XXX is hereby amended as follows:
Section 1. Amendment.
(a) Section 2 of the XXX is amended and restated in its entirety as follows:
“2. Board Representation.
(a) Designation of Board Member. For the period hereafter indicated, Swank
will have a right to designate one (1) natural person to serve as a member of the Board of
Directors of GP. QRC will have the right to designate the remaining members of the Board of
Directors of GP. In order to effect this right, QRC (or its Affiliates that own Member
Interests) shall vote the Member Interests in GP owned by it in a manner so as to cause and
maintain the election of the person so designated. Swank’s right to designate a member of
the Board of Directors shall terminate upon the completion by the Company of an IPO. In
addition, such right to designate a member of the Board of Directors shall terminate at such
time (either before or after completion by the Company of an IPO) as Swank ceases to own at
least five percent (5%) of the Common Units (measured on a fully-diluted basis that assumes
that all outstanding warrants, options, rights and
securities that are at any time exercisable for or convertible into Common Units have been
so exercised or converted) held by Persons other than QRC or its Affiliates.
(b) Expansion of Board. The parties currently contemplate that until the
completion by the Company of an IPO, the Board of Directors of GP will consist of six (6)
persons. During the period prior to completion of an IPO that Swank has the right to
designate a person to serve on the Board of Directors of GP, Swank shall have the right to
maintain its proportionate Board representation in the event of an expansion of the number
of members of the Board of Directors; provided, however, that such right to maintain the
proportionate Board representation will terminate upon completion by the Company of an IPO.
(c) Replacement. In the event of the resignation, death, removal or
disqualification of a person designated by QRC or Swank to serve on the Board of Directors,
as set forth above, the appropriate designating party or parties shall promptly designate a
new member of the Board of Directors, and after written notice of the designation has been
given by such designating party or parties to the other parties, each of QRC and the
Investors shall vote its Member Interests to elect such nominee to the Board of Directors.
(d) Removal. The appropriate designating party or parties may specify that any
person designated by it to serve on the Board of Directors shall be removed at any time and
from time to time, with or without cause.
(b) Indemnification and Insurance. So long as Swank has a right to designate a
Director pursuant to this Section 2, the GP shall maintain director and officer insurance
reasonably satisfactory to Swank.”
(c) Section 9(a) is hereby amended and restated in its entirety as follows:
Term. Unless earlier terminated by agreement of the parties this
Agreement shall, without any further action of any party, terminate and be of no
further force or effect upon the earlier to occur of (i) the completion of an IPO by
the Company, and (ii) the closing of the Recombination.
(d) The following definitions are hereby added to Exhibit A to the XXX:
“Merger Agreement” means the Agreement and Plan of Merger dated as of July 2,
2009 among New Quest Holdings Corp., QRC, the Company, the GP, Quest Energy
Partners, L.P., Quest Energy GP, LLC, Quest Resource Acquisition Corp., Quest Energy
Acquisition, LLC, Quest Midstream Holdings Corp. and Quest Midstream Acquisition,
LLC.
“Recombination” means the transactions contemplated by Article 1 of the Merger
Agreement.
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Section 2. Ratification of XXX. Except as expressly modified and amended herein, all
of the terms and conditions of the XXX shall remain in full force and effect.
Section 3. Termination of Amendment No. 1. If the Merger Agreement is terminated for
any reason, this Amendment No. 1 shall have no force and effect.
Section 4. Governing Law. This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the State of Delaware (regardless of the laws that might otherwise
govern under applicable Delaware principles of conflicts of law) as to all matters, including
matters of validity, construction, effect, performance and remedies.
Section 5. Facsimiles; Counterparts. This Amendment No. 1 may be executed by
facsimile signatures by any party and such signature shall be deemed binding for all purposes
hereof, without delivery of an original signature being thereafter required. This Amendment No. 1
may be executed in one or more counterparts, each of which, when executed, shall be deemed to be an
original and all of which together shall constitute one and the same document.
[signature page follows]
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IN WITNESS WHEREOF, the Company, the GP, QRC and the undersigned Investors representing at
least a Majority of Investors have caused this Amendment No. 1 to be signed by their respective
duly authorized officers as of July 1, 2009.
| QUEST MIDSTREAM PARTNERS, L.P. | ||||
| By: | Quest Midstream GP, LLC | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| President and Chief Executive Officer | ||||
| QUEST MIDSTREAM GP, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| President and Chief Executive Officer | ||||
| QUEST RESOURCE CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| President and Chief Executive Officer | ||||
| ALERIAN OPPORTUNITY PARTNERS IV, LP | ||||
| By: | ALERIAN OPPORTUNITY | |||
| ADVISORS IV, LLC | ||||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Xxxxxxx Xxxxxxx | ||||
| Managing Member |
||||
Signature Page to Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement
| ALERIAN OPPORTUNITY PARTNERS IX, LP | ||||
| By: | ALERIAN OPPORTUNITY | |||
| ADVISORS IX, LLC | ||||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Xxxxxxx Xxxxxxx | ||||
| Managing Member | ||||
| ALERIAN CAPITAL PARTNERS, LP | ||||
| By: | ALERIAN CAPITAL ADVISORS, LLC | |||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Xxxxxxx Xxxxxxx | ||||
| Managing Member | ||||
| ALERIAN FOCUS PARTNERS, LP | ||||
| By: | ALERIAN FOCUS ADVISORS, LLC | |||
| Its General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Xxxxxxx Xxxxxxx | ||||
| Managing Member | ||||
| SWANK MLP CONVERGENCE FUND, LP | ||||
| By: | SWANK ENERGY INCOME ADVISORS, | |||
| L.P. | ||||
| Its General Partner | ||||
| By: | SWANK CAPITAL, LLC | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Manager |
||||
Signature Page to Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement
| THE XXXXXXX MLP OPPORTUNITY FUND I, LP | ||||
| By: | CARBON COUNTY PARTNERS I, LP | |||
| Its General Partner | ||||
| By: | CARBON COUNTY GP I, LLC | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Manager | ||||
| BEL AIR MLP ENERGY INFRASTRUCTURE FUND, LP | ||||
| By: | SWANK ENERGY INCOME ADVISORS, L.P. its investment advisor |
|||
| By: | SWANK CAPITAL, LLC | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Xxxxx X. Xxxxx | ||||
| Manager | ||||
| TORTOISE CAPITAL RESOURCES CORPORATION |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| President | ||||
| TORTOISE GAS AND OIL CORPORATION |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx | ||||
| President | ||||
Signature Page to Amendment No. 1 to the Amended and Restated Investors’ Rights Agreement
