EXHIBIT 3.2
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXXXXX ENERGY PARTNERS L.P.
THIS AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF XXXXXXXX ENERGY PARTNERS L.P. (this "Amendment"), dated as of
November 15, 2002, is entered into and effectuated by WEG GP LLC, a Delaware
limited liability company, as the General Partner, pursuant to authority granted
to it in Article 13 of the Second Amended and Restated Agreement of Limited
Partnership of Xxxxxxxx Energy Partners L.P., dated as of September 27, 2002
(the "Partnership Agreement"). Capitalized terms used but not defined herein are
used as defined in the Partnership Agreement.
WHEREAS, Section 13.1 of the Partnership Agreement provides that the
General Partner, without the approval of any Partner, may amend any provision of
the Partnership Agreement to reflect a change that, in the discretion of the
General Partner, does not adversely affect the Limited Partners (including any
particular class of Partnership Interests as compared to other classes of
Partnership Interests) in any material respect; and
WHEREAS, the General Partner deems it to be in the best interest of the
Partnership to effect this Amendment in order to provide for the right of the
Limited Partners to vote their Outstanding Limited Partner Interests as a single
class to elect annually the board of directors of the General Partner, subject
to the provisions of this Amendment.
NOW, THEREFORE, the Partnership Agreement is hereby amended as follows:
1. The first sentence of Section 13.2 is amended to read in its entirety
as follows:
"Except as provided in Sections 13.1, 13.3 and 13.4, all amendments to
this Agreement shall be made in accordance with the following requirements."
2. Section 13.4 is amended to read in its entirety as follows:
"Section 13.4. Meetings.
(a) All acts of Limited Partners to be taken pursuant to this Agreement
shall be taken in the manner provided in this Article XIII.
(b) Special meetings of the Limited Partners may be called by the General
Partner or by Limited Partners owning 20% or more of the Outstanding Limited
Partner Interests of the class or classes for which a meeting is proposed.
Limited Partners shall call a special meeting by delivering to the General
Partner one or more requests in writing stating that the signing Limited
Partners wish to call a special meeting and indicating the general or specific
purposes for which the special meeting is to be called. Within 60 days after
receipt of such a call from Limited Partners or within such greater time as may
be reasonably necessary for the Partnership to
comply with any statutes, rules, regulations, listing, agreements or similar
requirements governing the holding of a meeting or the solicitation of proxies
for use at such a meeting, the General Partner shall send a notice of the
meeting to the Limited Partners either directly or indirectly through the
Transfer Agent. A special meeting shall be held at a time and place determined
by the General Partner on a date not less than 10 days nor more than 60 days
after the mailing of notice of the meeting. Limited Partners shall not vote at
any special meeting for the election of directors to the Board of Directors of
the General Partner or on matters that would cause the Limited Partners to be
deemed to be taking part in the management and control of the business and
affairs of the Partnership so as to jeopardize the Limited Partners' limited
liability under the Delaware Act or the law of any other state in which the
Partnership is qualified to do business.
(c) (i) An annual meeting of the Limited Partners for the election of
directors (each, a "Director") to the Board of Directors of the General
Partner shall be held on the second Wednesday in May of each year if a
Business Day, and if not a Business Day, then on the next Business Day
following, at 10 a.m., or at such other date and time as may be fixed from
time to time by the General Partner at such place within or without the
State of Delaware as may be fixed from time to time by the General Partner
and all as stated in the notice of the meeting. Notice of the annual
meeting shall be given in accordance with Section 13.5 not less than 10
days nor more than 60 days prior to the date of such meeting.
(ii) The Limited Partners entitled to vote at the annual meeting shall
vote together as a single class. The Limited Partners entitled to vote
shall elect by a plurality of the votes cast at such meeting persons to
serve on the Board of Directors of the General Partner who are nominated
in accordance with the provisions of this Section 13.4(c). The exercise by
a Limited Partner of the right to elect the Directors and any other rights
afforded to such Limited Partner under this Section 13.4(c) shall be in
such Limited Partner's capacity as a limited partner of the Partnership
and shall not cause a Limited Partner to be deemed to be taking part in
the management and control of the business and affairs of the Partnership
so as to jeopardize such Limited Partner's limited liability under the
Delaware Act or the law of any other state in which the Partnership is
qualified to do business.
(iii) Each Limited Partner entitled to vote shall be entitled to one vote
for each Outstanding Unit that is registered in the name of such Limited
Partner on the Record Date for such meeting; provided, however, that the
General Partner and its Affiliates shall not be entitled to vote Units
representing, in the aggregate, more than 20% of the total number of
Outstanding Units that are entitled to vote at the annual meeting and any
such Units that are not entitled to be voted pursuant to this provision
shall not be deemed to be Outstanding for purposes of determining a quorum
under Section 13.9; provided further, however, that each Outstanding
Subordinated Unit shall count as 0.5 of a Unit and have 0.5 of a vote for
the purposes of this Section 13.4(c) and shall count as 0.5 of a Unit for
the purposes of determining a quorum under Section 13.9; provided further,
however, that if the General Partner or its Affiliates have pledged any of
the Subordinated Units as collateral to secure indebtedness and such
collateral is transferred to the holders of such indebtedness as a result
of a default with respect to such indebtedness, then the
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immediately preceding proviso shall be deemed automatically to be of no
further force and effect and each Outstanding Subordinated Unit shall
again count as one Unit and have one vote for the purposes of this Section
13.4(c) and be counted as one Unit for the purposes of determining a
quorum.
(iv) The number of Directors which shall constitute the whole Board
of Directors of the General Partner shall not be less than seven and not
more than nine as shall be established from time to time by a resolution
adopted by a majority of the Directors, provided that no decrease shall
shorten the term of any incumbent Director. The Directors shall be
classified with respect to their terms of office by dividing them into
three (3) classes established pursuant to the limited liability company
agreement of the General Partner, each class to be as nearly equal in
number as possible. At each annual meeting of the Limited Partners,
Directors to replace those whose terms expire at such annual meeting shall
be elected to hold office until the third succeeding annual meeting.
(v) Each Director shall hold office for the term for which such
Director is elected and thereafter until such Director's successor shall
have been duly elected and qualified, or until such Director's earlier
death, resignation or removal. Any vacancies may be filled, until the next
annual meeting at which the term of such class expires, by a majority of
the remaining Directors then in office. A Director may be removed only for
cause and only upon a vote of the majority of the remaining Directors then
in office.
(vi) Nominations of persons for election to the Board of Directors
of the General Partner may be made at an annual meeting only (A) by or at
the direction of the General Partner or the Board of Directors of the
General Partner, or (B) by any Limited Partner who was a Record Holder of
Outstanding Units at the time of giving notice provided for in this
Agreement, who is entitled to vote at the meeting and who complies with
the notice procedures set forth below; provided, however, that such
nominations shall be subject to the requirement that the Board of
Directors of the General Partner have and maintain at least three
Directors meeting the independence and experience requirements as set
forth most recently by any National Securities Exchange on which any Units
or other Partnership Securities are listed or quoted. For nominations by a
Limited Partner pursuant to clause (B) above, the Limited Partner must
have given timely notice thereof in writing to the General Partner. To be
timely, a Limited Partner's notice shall be delivered to the General
Partner at the principal executive offices of the General Partner not
later than the close of business on January 31, 2003, nor earlier than the
close of business on January 16, 2003, in the case of the 2003 annual
meeting, and not later than the close of business on the 120th calendar
day, nor earlier than the close of business on the 135th calendar day,
prior to the first anniversary of the preceding year's annual meeting, in
the case of any subsequent annual meeting. The adjournment of an annual
meeting shall not commence a new time period for the giving of a Limited
Partner's notice as described above. Such Limited Partner's notice shall
set forth (Y) as to each person whom the Limited Partner proposes to
nominate for election or reelection as a Director all information relating
to such person that is required to be disclosed in solicitations of
proxies for the election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of
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1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a Director if
elected); and (Z) as to the Limited Partner giving the notice (1) the name
and address of such Limited Partner, and (2) the class and number of Units
which are owned by such Limited Partner. Other than as provided in Section
13.4(c)(v), only such persons who are nominated in accordance with the
procedures set forth in this provision shall be eligible to serve as
Directors. The chairman of the meeting shall have the power and duty to
determine whether a nomination was made in accordance with the procedures
set forth above and to declare that such defective nomination shall be
disregarded.
(vii) Notwithstanding any other provision of this Section 13.4(c),
the General Partner and the members of the General Partner are authorized,
and shall use their commercially reasonable best efforts, to take such
action (including, without limitation, the removal and appointment of
Directors) as shall be necessary or appropriate to cause, by April 7,
2003, a majority of the Board of Directors of the General Partner to
consist of individuals other than individuals who are officers, directors,
employees or agents of the General Partner or The Xxxxxxxx Companies, Inc.
and thereafter to cause the composition of the Board of Directors of the
General Partner to be so maintained; provided, however, that this
provision shall not preclude the election of individuals who are Directors
of the General Partner and who are not otherwise affiliated with the
General Partner or The Xxxxxxxx Companies, Inc.; provided further,
however, that this provision shall be in addition to and, in the case of a
conflict, subject to the compliance with any rule or listing standard of a
National Securities Exchange on which any Units or other Partnership
Securities are listed or quoted.
(viii) This Section 13.4(c) shall not be deemed in any way to limit
or impair the ability of the Board of Directors of the General Partner to
adopt a "poison pill" or unitholder or other similar rights plan with
respect to the Partnership, whether such poison pill or plan contains
"dead hand" provisions, "no hand" provisions or other provisions relating
to the redemption of the poison pill or plan, in each case as such terms
are used under Delaware common law.
(ix) The General Partner shall use its commercially reasonable best
efforts to take such action as shall be necessary or appropriate to give
effect to and implement the provisions of this Section 13.4(c), including,
without limitation, amending the limited liability company agreement of
the General Partner.
(x) Except as set forth in Section 13.4(c)(iii) and Section
13.4(c)(xi), this Section 13.4(c) may not be amended except upon the prior
approval of Limited Partners that hold two-thirds of the Outstanding
Units.
(xi) Notwithstanding the foregoing provisions of this Section
13.4(c), if any of the Membership Interests (as defined in the General
Partner's limited liability company agreement) of the General Partner have
been pledged as collateral to secure indebtedness and such collateral is
transferred to the holders of such indebtedness as a result of a default
with respect to such indebtedness, the provisions of this Section 13.4(c)
shall be of no further force and effect and Section 13.4 shall be deemed
automatically to read in
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its entirety as previously written in the Partnership Agreement
immediately prior to the Amendment No. 2 to the Second Amended and
Restated Agreement of Limited Partnership of Xxxxxxxx Energy Partners
L.P., dated as of November ____, 2002 ("Amendment No. 2"), provided that
this Section 13.4(c)(xi) shall not affect the applicability or
enforceability of any other amendments to Section 13.4 that may be adopted
after the date of Amendment No. 2.
(xii) If the General Partner delegates to an existing or newly
formed wholly-owned subsidiary the power and authority to manage and
control the business and affairs of the Partnership Group, the foregoing
provisions of this Section 13.4(c) shall be applicable with respect to the
board of directors or other governing body of such subsidiary."
3. Except as hereby amended, the Partnership Agreement shall remain in
full force and effect.
4. This Amendment shall be governed by, and interpreted in accordance
with, the laws of the State of Delaware, all rights and remedies being governed
by such laws without regard to principles of conflicts of laws.
5. Each provision of this Amendment shall be considered severable and if
for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Amendment that are valid, enforceable and legal.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment has been executed as of the date first
written above.
WEG GP LLC
General Partner
By: /s/ XXX X. XXXXXXXXXX
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Name: Xxx X. Xxxxxxxxxx
Title: President and Cheif Executive Officer
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