FORM OF AMENDMENT NO. 2 TO THE SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF PENN VIRGINIA GP HOLDINGS, L.P.
EXHIBIT
3.1
FORM
OF
AMENDMENT
NO. 2
TO
THE
OF
This
Amendment No. 2 to the Second Amended and Restated Agreement of Limited
Partnership of Penn Virginia GP Holdings, L.P., a Delaware limited partnership
(the “Partnership”),
dated as of March __, 2010 and effective immediately prior to the closing of the
secondary public offering of common units in the Partnership on March __, 2010
(this “Amendment”), is
made and entered into by PVG GP, LLC, a Delaware limited liability company, as
general partner of the Partnership (the “General
Partner”). Capitalized terms used herein and not otherwise
defined are used as defined in the Second Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of October 23, 2007, as amended
(the “LP
Agreement”).
WITNESSETH
WHEREAS, the Partnership is a
Delaware limited partnership that was formed under the Delaware Revised Uniform
Limited Partnership Act, 6 Del. C. §
17-101, et
seq., and is
currently governed by the LP Agreement;
WHEREAS, the General Partner
desires to amend the LP Agreement as set forth herein pursuant to and in
accordance with Section 13.1 of the LP Agreement; and
WHEREAS, this Amendment is
intended to provide Limited Partners with a right to vote in the election of
certain directors of the General Partner; however, for the avoidance of doubt,
this Amendment is not intended to change in any manner the requirement, as set
forth in Section 13.2 of the LP Agreement, that amendments to the LP Agreement
may be proposed only by the General Partner.
NOW, THEREFORE, intending to
be legally bound, the General Partner agrees as follows:
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I.
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AMENDMENTS.
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The LP
Agreement is amended as follows:
1. Section
1.1 of the LP Agreement is hereby amended by inserting thereto the following new
definitions in the appropriate alphabetical order that read as
follows:
““Directors” shall mean the
members of the Board of Directors.
“General Partner Agreement”
shall mean the First Amended and Restated Limited Liability Company Agreement of
the General Partner, dated as of December 8, 2006, as amended or amended and
restated from time to time.
“PVG Directors” shall have the
meaning set forth in the General Partner Agreement.
“Sponsor Directors” shall have
the meaning set forth in the General Partner Agreement.
“Triggering Resolution” shall
mean a resolution adopted by the Board of Directors (including a majority of the
PVG Directors) providing for staggered elections of the PVG Directors in the
manner set forth in Section 13.4(b)(v).”
2. Section
13.4 of the LP Agreement is hereby amended by deleting the words “Special Meetings” in the
Section header thereto and inserting in its place the word “Meetings”.
3. Section
13.4 of the LP Agreement is hereby amended by designating the first paragraph
thereof as subsection “(a)” and by inserting a new subsection (b) thereof that
reads as follows:
“(b) (i) An
annual meeting of the Limited Partners holding Outstanding Units for the
election of PVG Directors to the Board of Directors and such other matters as
the General Partner shall submit to a vote of the Limited Partners holding
Outstanding Units shall be held in June of each year beginning in 2011 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 holding Outstanding Units (other than the General Partner and
those Limited Partners holding an interest in the General Partner or any of
their respective Affiliates) shall vote together as a single class for the
election of PVG Directors to the Board of Directors (but such Limited Partners
and their Units shall not, however, be treated as a separate class of Partners
or Partnership Securities for purposes of this Agreement). The
Limited Partners described in the immediately preceding sentence shall elect by
a plurality of the votes cast at such meeting persons to serve as PVG Directors
who are nominated in accordance with the provisions of this Section
13.4(b). The exercise by a Limited Partner of the right to elect the
PVG Directors and any other rights afforded to such Limited Partner under this
Section 13.4(b) 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.
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(iii) Solely
with respect to the election and removal of PVG Directors to the Board of
Directors, the General Partner, those Limited Partners holding an interest in
the General Partner and any of their respective Affiliates shall not be entitled
to vote Units that are otherwise entitled to vote at any meeting of the
Unitholders. If the General Partner has provided at least thirty days
advance notice of any meeting at which PVG Directors are to be elected, then the
Limited Partners holding Outstanding Units (other than the General Partner and
those Limited Partners holding an interest in the General Partner or any of
their respective Affiliates) that attend such meeting shall constitute a quorum,
and if the General Partner has provided less than thirty days advance notice of
any such meeting, then Limited Partners holding a majority of the Outstanding
Units (other than the General Partner and those Limited Partners holding an
interest in the General Partner or their respective Affiliates) shall constitute
a quorum.
(iv) The
number of PVG Directors on the Board of Directors shall be three or such other
number as shall be set forth in the General Partner
Agreement. Immediately prior to the effectiveness of Amendment No. 2
to this Agreement, ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
were Independent Directors and, upon the effectiveness of Amendment No. 2 to
this Agreement, ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ are each
appointed as a PVG Director. Until such time as a Triggering
Resolution has been adopted, each PVG Director shall be elected to serve a term
of one year to expire at the next annual meeting.
(v) This
Section 13.4(b)(v) shall become effective upon the adoption of a Triggering
Resolution, and no portion of this Section 13.4(b)(v) shall be effective unless
and until a Triggering Resolution has been adopted. The PVG Directors
shall be divided into three groups, Group I, Group II, and Group
III. The number of PVG Directors in each group shall be the whole
number contained in the quotient arrived at by dividing the authorized number of
PVG Directors by three, and if a fraction is also contained in such quotient,
then if such fraction is one-third, the extra director shall be a member of
Group I and if the fraction is two-thirds, one of the extra directors shall be a
member of Group I and the other shall be a member of Group II. Each
PVG Director shall serve for a term ending as provided herein; provided,
however, that the PVG Director designated in the Triggering Resolution to Group
I shall serve for an initial term that expires at the annual meeting of Limited
Partners held immediately following the Triggering Resolution, the PVG Director
designated in the Triggering Resolution to Group II shall serve for an initial
term that expires at the second annual meeting of Limited Partners held
following the Triggering Resolution, and the PVG Director designated in the
Triggering Resolution to Group III shall serve for an initial term that expires
at the third annual meeting of Limited Partners held following the Triggering
Resolution. At each succeeding annual meeting of Limited Partners
beginning with the first annual meeting following the Triggering Resolution,
successors to the PVG Directors whose term expires at that annual meeting shall
be elected for a three-year term.
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(vi) Each
PVG Director shall hold office for the term for which such PVG Director is
elected and thereafter until such PVG Director’s successor shall have been duly
elected and qualified, or until such PVG Director’s earlier death, resignation
or removal. If, following a Triggering Resolution, the number of PVG
Directors is changed, any increase or decrease shall be apportioned among the
groups so as to maintain the number of PVG Directors in each group as nearly
equal as possible, and any additional PVG Director of any group elected to fill
a vacancy resulting from an increase in such group shall hold office for a term
that shall coincide with the remaining term of that group, but in no case will a
decrease in the number of PVG Directors shorten the term of any incumbent PVG
Director. Any vacancy in a PVG Director on the Board of Directors
(including, without limitation, any vacancy caused by an increase in the number
of PVG Directors on the Board of Directors) may only be filled by a person
nominated for election by a majority of the remaining PVG Directors and elected
by a majority of the remaining PVG Directors. Any PVG Director
elected to fill a vacancy not resulting from an increase in the number of PVG
Directors shall have the same remaining term as that of his
predecessor. Notwithstanding Section 13.11 of this Agreement, a PVG
Director may be removed only at a meeting of the Limited Partners upon the
affirmative vote of Limited Partners (other than the General Partner and those
Limited Partners holding an interest in the General Partner or any of their
respective Affiliates) holding a majority of the Outstanding Units (other than
the General Partner and those Limited Partners holding an interest in the
General Partner or any of their respective Affiliates); provided, however, a PVG
Director may only be removed if, at the same meeting, Limited
Partners holding a majority of the Outstanding Units nominate a
replacement PVG Director (and any such nomination shall not be subject to the
nomination procedures otherwise set forth in this Section 13.4), and Limited
Partners (other than the General Partner and those Limited Partners holding an
interest in the General Partner or any of their respective Affiliates) holding a
majority of the Outstanding Units (other than the General Partner and those
Limited Partners holding an interest in the General Partner or any of their
respective Affiliates) also vote to elect a replacement PVG Director, and,
provided, further, following a Triggering Resolution, a PVG Director may only be
removed for cause.
(vii)
(A)(1) Nominations of
persons for election of PVG Directors to the Board of Directors of the General
Partner may be made at an annual meeting of the Limited Partners only pursuant
to the General Partner’s notice of meeting (or any supplement thereto) (a) by or
at the direction of a majority of the PVG Directors (or, if there are no PVG
Directors at that time, by or at the direction of a majority of the Sponsor
Directors) or (b) by a Limited Partner, or a group of Limited Partners, that
holds or beneficially owns, and has continuously held or beneficially owned
without interruption for the prior eighteen (18) months, 5% of the Outstanding
Units (in either case, a “Limited Partner Group”) if each member of the Limited
Partner Group was a Record Holder at the time the notice provided for in this
Section 13.4(b)(vii) is delivered to the General Partner, and if the Limited
Partner Group complies with the notice procedures set forth in this Section
13.4(b)(vii).
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(2) For
any nominations brought before an annual meeting by a Limited Partner Group
pursuant to clause (c) of paragraph (A)(1) of this Section 13.4(b)(vii), the
Limited Partner Group must have given timely notice thereof in writing to the
General Partner. To be timely, a Limited Partner Group’s notice shall
be delivered to the General Partner not later than the close of business on the
ninetieth (90th) day,
nor earlier than the close of business on the one hundred twentieth (120th) day,
prior to the first anniversary of the preceding year’s annual meeting (provided,
however, that in the event that the date of the annual meeting is more than
thirty (30) days before or more than seventy (70) days after such anniversary
date, notice by the Limited Partner Group must be so delivered not earlier than
the close of business on the one hundred twentieth (120th) day prior to such
annual meeting and not later than the close of business on the later of the
ninetieth (90th) day
prior to such annual meeting or the tenth (10th) day
following the day on which public announcement of the date of such meeting is
first made by the Partnership or the General Partner). For purposes
of the 2011 annual meeting, the first anniversary of the preceding year’s annual
meeting shall be deemed to be June 30, 2011. In no event shall the
public announcement of an adjournment or postponement of an annual meeting
commence a new time period (or extend any time period) for the giving of a
Limited Partner Group’s notice as described above. Such Limited
Partner Group’s notice shall set forth: (a) as to each person whom
the Limited Partner Group proposes to nominate for election as a PVG Director
(i) all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to and in accordance with Regulation
14A under the Securities Exchange Act and the rules and regulations promulgated
thereunder and (ii) such person’s written consent to being named in the proxy
statement as a nominee and to serving as a PVG Director if elected; and (b) as
to each member of the Limited Partner Group giving the notice and the beneficial
owner, if any, on whose behalf the nomination is made (i) the name and address
of such Limited Partners, as they appear on the Partnership’s books and records,
and of such beneficial owners, (ii) the class or series and number of Units
which are owned beneficially and of record by such Limited Partners and such
beneficial owners, (iii) a description of any agreement, arrangement or
understanding with respect to the nomination between or among any or all members
of such Limited Partner Group and/or such beneficial owners, any of their
respective Affiliates or associates, and any others acting in concert with any
of the foregoing, including each nominee, (iv) a description of any agreement,
arrangement or understanding (including any derivative or short positions,
profit interests, options, warrants, equity appreciation or similar rights,
hedging transactions, and borrowed or loaned Units) that has been entered into
as of the date of the Limited Partner Group’s notice by, or on behalf of, any
members of such Limited Partner Group and such beneficial owners, the effect or
intent of which is to mitigate loss to, manage risk or benefit of Unit price
changes for, or increase or decrease the voting power of, such Limited Partners
and such beneficial owner, with respect to Units, (v) a representation that each
member of the Limited Partner Group is a Record Holder entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to propose
such nomination, (vi) a representation whether any member of the Limited Partner
Group or the beneficial owners, if any, intend or are part of a group which
intends (a) to deliver a proxy statement and/or form of proxy to holders of at
least the percentage of the Partnership’s Outstanding Units required to elect
the nominee and/or (b) otherwise to solicit proxies from Limited Partners in
support of such nomination, and (vii) any other information relating to any
member of such Limited Partner Group and beneficial owners, if any, required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for the election of directors in an
election contest pursuant to and in accordance with Section 14(a) of the
Securities Exchange Act and the rules and regulations promulgated
thereunder. The General Partner may require any proposed nominee to
furnish such other information as it may reasonably require to determine the
eligibility of such proposed nominee to serve as a PVG Director of the General
Partner.
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(B) Nominations
of persons for election as a PVG Director to the Board of Directors may be made
at a special meeting of Limited Partners at which PVG Directors are to be
elected pursuant to the General Partner’s notice of meeting (1) by or at the
direction of a majority of the PVG Directors (or, if there are no PVG Directors
at that time, by or at the direction of a majority of the Sponsor Directors) or
(2) provided that the Board of Directors has determined that PVG Directors shall
be elected at such meeting, by any Limited Partner Group pursuant to
Section 13.4(a) hereof, if each member of such Limited Partner Group is a Record
Holder at the time the notice provided for in this Section 13.4(b)(vii) is
delivered to the General Partner and if the Limited Partner Group complies with
the notice procedures set forth in this Section 13.4(b)(vii). In the
event the General Partner calls a special meeting of Limited Partners for the
purpose of electing one or more PVG Directors to the Board of Directors, any
such Limited Partner Group may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the General Partner’s notice of
meeting, if the Limited Partner Group’s notice required by paragraph (A)(2) of
this Section 13.4(b)(vii) shall be delivered to the General Partner not earlier
than the close of business on the one hundred twentieth (120th) day
prior to such special meeting and not later than the close of business on the
later of the ninetieth (90th) day
prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public announcement of
an adjournment or postponement of a special meeting commence a new time period
(or extend any time period) for the giving of a Limited Partner Group’s notice
as described above.
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(C) (1) Only
such persons who are nominated in accordance with the procedures set forth in
this Section 13.4(b) shall be eligible to be elected at an annual or special
meeting of Limited Partners to serve as PVG Directors. Except as
otherwise provided by law, the chairman designated by the General Partner
pursuant to Section 13.10 shall have the power and duty (a) to determine whether
a nomination was made in accordance with the procedures set forth in this
Section 13.4(b) (including whether the members of the Limited Partner Group or
beneficial owner, if any, on whose behalf the nomination is made solicited (or
is part of a group which solicited) or did not so solicit, as the case may be,
proxies in support of such Limited Partner Group’s nominee in compliance with
such Limited Partner Group’s representation as required by clause (A)(2)(a)(vi)
of this Section 13.4(b)(vii)) and (b) if any proposed nomination was not made in
compliance with this Section 13.4(b), to declare that such nomination shall be
disregarded. Notwithstanding the foregoing provisions of this Section
13.4(b), unless otherwise required by law, if each member of the Limited Partner
Group (or a qualified representative of each member of the Limited Partner
Group) does not appear at the annual or special meeting of Limited Partners to
present a nomination, such nomination shall be disregarded notwithstanding that
proxies in respect of such vote may have been received by the General Partner or
the Partnership. For purposes of this Section 13.4(b), to be
considered a qualified representative of a member of the Limited Partner Group,
a person must be a duly authorized officer, manager or partner of such Limited
Partner or must be authorized by a writing executed by such Limited Partner or
an electronic transmission delivered by such Limited Partner to act for such
Limited Partner as proxy at the meeting of Limited Partners and such person must
produce such writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of Limited
Partners.
(2) For
purposes of this Section 13.4(b)(vii), “public announcement” shall include
disclosure in a press release reported by the Dow ▇▇▇▇▇ News Service, Associated
Press or other national news service or in a document publicly filed by the
Partnership or the General Partner with the Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act and the rules and regulations
promulgated thereunder.
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(3) Notwithstanding
the foregoing provisions of this Section 13.4(b)(vii), a Limited Partner shall
also comply with all applicable requirements of the Securities Exchange Act and
the rules and regulations thereunder with respect to the matters set forth in
this Section 13.4(b)(vii); provided however, that any references in this
Agreement to the Securities Exchange Act or the rules and regulations
promulgated thereunder are not intended to and shall not limit any requirements
applicable to nominations pursuant to this Section 13.4(b)(vii) (including
paragraphs A(1)(c) and B hereof), and compliance with paragraphs A(1)(c) and B
of this Section 13.4(b)(vii) shall be the exclusive means for a Limited Partner
to make nominations.
(viii) This
Section 13.4(b) shall not be deemed in any way to limit or impair the ability of
the Board of Directors 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 Partnership and the General Partner shall use their
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(b), including, without limitation, amending the organizational documents of
the General Partner such that at all times the organizational documents of the
General Partner shall provide (i) that the PVG Directors shall be elected in
accordance with the terms of this Agreement, and (ii) terms consistent with this
Section 13.4(b).
(x) 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(b) shall be applicable with respect to the Board of Directors or other
governing body of such Subsidiary.”
4. Section
13.9 of the LP Agreement is hereby amended to replace the word “The” at the
beginning of the first sentence thereof with the following:
“Subject
to Section 13.4(b), the”.
5. The
parenthetical set forth in Section 13.12(a) of the LP Agreement is hereby
amended in its entirety to read as follows:
“(and
subject to the limitations contained in the definition of “Outstanding” and the
limitations set forth in Section 13.4(b))”.
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II.
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MISCELLANEOUS.
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1. Successors and
Assigns. This Amendment shall be binding upon, and shall enure
to the benefit of, each of the Partners, and its respective successors and
assigns.
2. Full Force and
Effect. Except to the extent modified hereby, the LP Agreement
shall remain in full force and effect.
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3. Governing
Law. This Amendment shall be interpreted in accordance with
the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by such laws.
4. Execution in
Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned has caused this Amendment to be duly executed
as of the day and year first above written.
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GENERAL
PARTNER:
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PVG
GP, LLC
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By:
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Name:
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Title:
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