AMENDMENT NO. 1 TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF DUNCAN ENERGY PARTNERS L.P.
Exhibit 3.1
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
▇▇▇▇▇▇ ENERGY PARTNERS L.P.
AGREEMENT OF LIMITED PARTNERSHIP OF
▇▇▇▇▇▇ ENERGY PARTNERS L.P.
This Amendment No. 1 (this “Amendment”) to the Amended and Restated Agreement of Limited
Partnership of ▇▇▇▇▇▇ Energy Partners L.P., dated effective as of February 5, 2007 (the
“Partnership Agreement”), is hereby adopted effective as of December 27, 2007, by DEP Holdings,
LLC, a Delaware limited liability company, (the “General Partner”), as general partner of the
Partnership. Capitalized terms used but not defined herein are used as defined in the Partnership
Agreement.
WHEREAS, Section 13.1(d) of the Partnership Agreement provides that the General Partner,
without the approval of any Partner, may amend any provision of the Partnership Agreement that is
necessary or advisable to comply with any rule, regulation, guideline or requirement of any
National Securities Exchange on which the Limited Partner Interests are listed for trading;
WHEREAS, the New York Stock Exchange (“NYSE”) has amended its rules to require that, effective
January 1, 2008, listed companies must be eligible to participate in the Direct Registration System
(“DRS”) administered by the Depository Trust Company;
WHEREAS, the General Partner has determined, in its discretion, that an amendment to the
Partnership Agreement in order to comply with the NYSE’s DRS eligibility rules is in the best
interests of the Partnership and the Limited Partners;
NOW, THEREFORE, the General Partner does hereby amend the Partnership Agreement as follows:
Section 1. Section 4.1 is hereby amended to read in full as follows:
Upon the Partnership’s issuance of Common Units to any Person, the Partnership shall issue,
upon the request of such Person, one or more Certificates in the name of such Person evidencing the
number of such Common Units being so issued. In addition, (a) upon the General Partner’s request,
the Partnership shall issue to it one or more Certificates in the name of the General Partner
evidencing its interests in the Partnership and (b) upon the request of any Person owning any
Partnership Securities, the Partnership shall issue to such Person one or more Certificates
evidencing such Partnership Securities. Certificates shall be executed on behalf of the
Partnership by the Chairman of the Board, President or any Executive Vice President or Vice
President and the Secretary or any Assistant Secretary of the General Partner. No Unit
Certificate shall be valid for any purpose until it has been countersigned by the Transfer Agent;
provided, however, that, notwithstanding any provision to the contrary in this Section 4.1 or
elsewhere in this Agreement, Common Units may be certificated or uncertificated as provided in the
Delaware Act, provided, further, that if the General Partner elects to issue Units in global form,
the Unit Certificates shall be valid upon receipt of a certificate from the Transfer Agent
certifying that the Units have been duly registered in accordance with the directions of the
Partnership.
Section 2. Section 4.2 is hereby amended to read in full as follows:
(a) If any mutilated Certificate is surrendered to the Transfer Agent, the appropriate
officers of the General Partner on behalf of the Partnership shall execute, and the Transfer Agent
shall countersign and deliver in exchange therefor, a new Certificate, or shall deliver other
evidence of the issuance of uncertificated Units, evidencing the same number and type of
Partnership Securities as the Certificate so surrendered.
(b) The appropriate officers of the General Partner on behalf of the Partnership shall execute
and deliver, and the Transfer Agent shall countersign a new Certificate, or shall deliver other
evidence of the issuance of uncertificated Units, in place of any Certificate previously issued if
the Record Holder of the Certificate:
(i) makes proof by affidavit, in form and substance satisfactory to the General
Partner, that a previously issued Certificate has been lost, destroyed or stolen;
(ii) requests the issuance of a new Certificate, or other evidence of the issuance of
uncertificated Units, before the General Partner has notice that the Certificate has been
acquired by a purchaser for value in good faith and without notice of an adverse claim;
(iii) if requested by the General Partner, delivers to the General Partner a bond, in
form and substance satisfactory to the General Partner, with surety or sureties and with
fixed or open penalty as the General Partner may direct to indemnify the Partnership, the
Partners, the General Partner and the Transfer Agent against any claim that may be made on
account of the alleged loss, destruction or theft of the Certificate; and
(iv) satisfies any other reasonable requirements imposed by the General Partner.
If a Limited Partner fails to notify the General Partner within a reasonable period of time after
he has notice of the loss, destruction or theft of a Certificate, and a transfer of the Limited
Partner Interests represented by the Certificate is registered before the Partnership, the General
Partner or the Transfer Agent receives such notification, the Limited Partner shall be precluded
from making any claim against the Partnership, the General Partner or the Transfer Agent for such
transfer or for a new Certificate, or other evidence of the issuance of uncertificated Units.
(c) As a condition to the issuance of any new Certificate, or other evidence of the issuance
of uncertificated Units, under this Section 4.2, the General Partner may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Transfer
Agent) reasonably connected therewith.
Section 3. Sections 4.5(a) and (b) are hereby amended to read in full as follows:
(a) The General Partner shall keep or cause to be kept on behalf of the Partnership a register
in which, subject to such reasonable regulations as it may prescribe and subject to the provisions
of Section 4.5(b), the Partnership will provide for the registration and transfer of
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Limited Partner Interests. The Transfer Agent is hereby appointed registrar and transfer agent for
the purpose of registering Common Units and transfers of such Common Units as herein provided. The
Partnership shall not recognize transfers of Certificates evidencing Limited Partner Interests
unless such transfers are effected in the manner described in this Section 4.5. Upon
surrender of a Certificate for registration of transfer of any Limited Partner Interests evidenced
by a Certificate, and subject to the provisions of Section 4.5(b), the appropriate officers
of the General Partner on behalf of the Partnership shall execute and deliver, and in the case of
Common Units, the Transfer Agent shall countersign and deliver, in the name of the holder or the
designated transferee or transferees, as required pursuant to the holder’s instructions, one or
more new Certificates, or shall deliver other evidence of the issuance of uncertificated Units,
evidencing the same aggregate number and type of Limited Partner Interests as was evidenced by the
Certificate so surrendered.
(b) Except as otherwise provided in Section 4.9, the General Partner shall not
recognize any transfer of Limited Partner Interests until the Certificates evidencing such Limited
Partner Interests, or other evidence of the issuance of uncertificated Units, are surrendered for
registration of transfer. No charge shall be imposed by the General Partner for such transfer;
provided, that as a condition to the issuance of any new Certificate, or other evidence of the
issuance of uncertificated Units, under this Section 4.5, the General Partner may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
with respect thereto.
Section 4. Section 4.9(a)(i) is hereby amended to read in full as follows:
(i) The General Partner shall, not later than the 30th day before the date fixed for
redemption, give notice of redemption to the Limited Partner, at his last address designated
on the records of the Partnership or the Transfer Agent, by registered or certified mail,
postage prepaid. The notice shall be deemed to have been given when so mailed. The notice
shall specify the Redeemable Interests, the date fixed for redemption, the place of payment,
that payment of the redemption price will be made upon surrender of the Certificate
evidencing the Redeemable Interests, or other evidence of the issuance of uncertificated
Units, and that on and after the date fixed for redemption no further allocations or
distributions to which the Limited Partner would otherwise be entitled in respect of the
Redeemable Interests will accrue or be made.
Section 5. Section 4.9(a)(iii) is hereby amended to read in full as follows:
(iii) Upon surrender by or on behalf of the Limited Partner, at the place specified in
the notice of redemption, of the Certificate evidencing the Redeemable Interests, duly
endorsed in blank or accompanied by an assignment duly executed in
blank, or other evidence of the issuance of uncertificated Units, the Limited Partner
or his duly authorized representative shall be entitled to receive the payment therefor.
Section 6. Section 5.6(b) is hereby amended to read in full as follows:
(b) Each additional Partnership Security authorized to be issued by the Partnership pursuant
to Section 5.6(a) may be issued in one or more classes, or one or more series of any such
classes, with such designations, preferences, rights, powers and duties (which may be senior
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to existing classes and series of Partnership Securities), as shall be fixed by the General Partner,
including (i) the right to share in Partnership profits and losses or items thereof; (ii) the right
to share in Partnership distributions; (iii) the rights upon dissolution and liquidation of the
Partnership; (iv) whether, and the terms and conditions upon which, the Partnership may or shall be
required to redeem the Partnership Security (including sinking fund provisions); (v) whether such
Partnership Security is issued with the privilege of conversion or exchange and, if so, the terms
and conditions of such conversion or exchange; (vi) the terms and conditions upon which each
Partnership Security will be issued, evidenced by certificates, or other evidence of the issuance
of uncertificated Partnership Securities, and assigned or transferred; (vii) the method for
determining the Percentage Interest as to such Partnership Security; and (viii) the right, if any,
of each such Partnership Security to vote on Partnership matters, including matters relating to the
relative rights, preferences and privileges of such Partnership Security.
Section 7. Section 5.8(c) is hereby amended to read in full as follows:
(c) Promptly following any such distribution, subdivision or combination, the Partnership may
issue Certificates, or other evidence of the issuance of uncertificated Units, to the Record
Holders of Partnership Securities as of the applicable Record Date representing the new number of
Partnership Securities held by such Record Holders, or the General Partner may adopt such other
procedures that it determines to be necessary or appropriate to reflect such changes. If any such
combination results in a smaller total number of Partnership Securities Outstanding, the
Partnership shall require, as a condition to the delivery to a Record Holder of such new
Certificate, or other evidence of the issuance of uncertificated Units, the surrender of any
Certificate, or other evidence of the issuance of uncertificated Units, held by such Record Holder
immediately prior to such Record Date.
Section 8. Section 10.1(b) is hereby amended to read in full as follows:
The name and mailing address of each Limited Partner shall be listed on the books and records
of the Partnership maintained for such purpose by the Partnership or the Transfer Agent. The
General Partner shall update the books and records of the Partnership from time to time as
necessary to reflect accurately the information therein (or shall cause the Transfer Agent to do
so, as applicable). A Limited Partner Interest may be represented by a Certificate, or other
evidence of the issuance of uncertificated Units, as provided in Section 4.1 hereof.
Section 9. Sections 15.1(b) and (c) are hereby amended to read in full as follows:
(b) If the General Partner elects to exercise the right to purchase Limited Partner Interests
granted pursuant to Section 15.1(a), the General Partner shall deliver to the Transfer
Agent notice of such election to purchase (the “Notice of Election to Purchase”) and shall
cause the Transfer Agent to mail a copy of such Notice of Election to Purchase to the Record Holders
of Limited Partner Interests of such class (as of a Record Date selected by the General Partner) at
least 10, but not more than 60, days prior to the Purchase Date. Such Notice of Election to
Purchase shall also be published for a period of at least three consecutive days in at least two
daily newspapers of general circulation printed in the English language and published in the
Borough of Manhattan, New York. The Notice of Election to Purchase shall specify the Purchase Date
and the price (determined in accordance with Section 15.1(a)) at which Limited
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Partner Interests will be purchased and state that the General Partner, its Affiliate or the Partnership,
as the case may be, elects to purchase such Limited Partner Interests, or other evidence of the
issuance of uncertificated Units, upon surrender of Certificates representing such Limited Partner
Interests in exchange for payment, at such office or offices of the Transfer Agent as the Transfer
Agent may specify, or as may be required by any National Securities Exchange on which such Limited
Partner Interests are listed or admitted to trading. Any such Notice of Election to Purchase
mailed to a Record Holder of Limited Partner Interests at his address as reflected in the records
of the Transfer Agent shall be conclusively presumed to have been given regardless of whether the
owner receives such notice. On or prior to the Purchase Date, the General Partner, its Affiliate
or the Partnership, as the case may be, shall deposit with the Transfer Agent cash in an amount
sufficient to pay the aggregate purchase price of all of such Limited Partner Interests to be
purchased in accordance with this Section 15.1. If the Notice of Election to Purchase
shall have been duly given as aforesaid at least 10 days prior to the Purchase Date, and if on or
prior to the Purchase Date the deposit described in the preceding sentence has been made for the
benefit of the holders of Limited Partner Interests subject to purchase as provided herein, then
from and after the Purchase Date, notwithstanding that any Certificate, or other evidence of the
issuance of uncertificated Units, shall not have been surrendered for purchase, all rights of the
holders of such Limited Partner Interests (including any rights pursuant to Articles IV,
V, VI, and XII) shall thereupon cease, except the right to receive the
purchase price (determined in accordance with Section 15.1(a)) for Limited Partner
Interests therefor, without interest, upon surrender to the Transfer Agent of the Certificates
representing such Limited Partner Interests, or other evidence of the issuance of uncertificated
Units, and such Limited Partner Interests shall thereupon be deemed to be transferred to the
General Partner, its Affiliate or the Partnership, as the case may be, on the record books of the
Transfer Agent and the Partnership, and the General Partner or any Affiliate of the General
Partner, or the Partnership, as the case may be, shall be deemed to be the owner of all such
Limited Partner Interests from and after the Purchase Date and shall have all rights as the owner
of such Limited Partner Interests (including all rights as owner of such Limited Partner Interests
pursuant to Articles IV, V, VI and XII).
(c) At any time from and after the Purchase Date, a holder of an Outstanding Limited Partner
Interest subject to purchase as provided in this Section 15.1 may surrender his Certificate
evidencing such Limited Partner Interest, or other evidence of the issuance of uncertificated
Units, to the Transfer Agent in exchange for payment of the amount described in Section
15.1(a), therefor, without interest thereon.
Section 10. Except as hereby amended, the Partnership Agreement shall remain in full force and
effect.
Section 11. 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.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.
| GENERAL
PARTNER: DEP HOLDINGS, LLC |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| President and Chief Executive Officer | ||||
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