AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF LINN ENERGY, LLC
Exhibit 4.1
Execution Copy
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
LINN ENERGY, LLC
LIMITED LIABILITY COMPANY AGREEMENT OF
LINN ENERGY, LLC
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF LINN
ENERGY, LLC (this “Amendment”), dated as of October 24, 2006, is entered into and
effectuated by the Board of Directors (the “Board”) of Linn Energy, LLC, a Delaware limited
liability company (the “Company”), pursuant to authority granted to it in Sections 5.5 and
11.1 of the Second Amended and Restated Limited Liability Company Agreement of the Company, dated
as of January 19, 2006 (the “Limited Liability Company Agreement”). Capitalized terms used
but not defined herein are used as defined in the Limited Liability Company Agreement.
WHEREAS, Section 5.5(a) of the Limited Liability Company Agreement provides that the Company may
issue additional Company Securities for any Company purpose at any time and from time to time for
such consideration and on such terms and conditions as the Board shall determine, all without the
approval of any Members;
WHEREAS, Section 5.5(b) of the Limited Liability Company Agreement provides that the Company
Securities authorized to be issued by the Company pursuant to Section 5.5(a) of the Limited
Liability Company Agreement 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 to
existing classes and series of Company Securities) as shall be fixed by the Board;
WHEREAS, Section 11.1(c)(vii) of the Limited Liability Company Agreement provides that the Board,
without the approval of any Member (subject to the provisions of Section 5.6 of the Limited
Liability Company Agreement), may amend any provision of the Limited Liability Company Agreement
that the Board determines to be necessary or appropriate in connection with the authorization of
issuance of any class or series of Company Securities pursuant to Section 5.5 of the Limited
Liability Company Agreement, and the Board has determined that the amendments contemplated hereby
are necessary or appropriate in connection therewith;
WHEREAS, the Board has determined that the issuance of the Class B Units provided for in this
Amendment is permitted by Section 5.6 of the Limited Liability Company Agreement;
WHEREAS, Section 11.1(c)(iv) of the Limited Liability Company Agreement provides that the Board,
without the approval of any Member, may amend any provision of the Limited Liability Company
Agreement to reflect a change that the Board determines does not adversely affect the Members
(including any particular class of Interests as compared to other classes of Interests) in any
material respect, and the Board has determined that such amendments contemplated hereby do not
adversely affect the Members in any material respect; and
WHEREAS, the Board deems it in the best interest of the Company to effect this Amendment to provide
for (i) the issuance of the Class B Units, (ii) the conversion of the Class B Units into Units in
accordance with the terms described herein and (iii) such other matters as are provided herein.
NOW, THEREFORE, it is hereby agreed as follows:
A. Amendment. The Limited Liability Company Agreement is hereby amended as follows:
1. Section 1.1 of the Limited Liability Company Agreement is hereby amended to add or amend
and restate the following definitions in the appropriate alphabetical order:
“Capital
Account True-Up Election” has the meaning set forth in
Section 6.1(d)(xii)(C).
“Class B Unit” means a Company Security representing a
fractional part of the Interests of all Members, and having the
rights and obligations specified with respect to the Class B Units
in this Agreement. A “Class B Unit” shall not constitute a Unit
until such time as such Class B Unit is converted into a Unit
pursuant to Section 5.10.
“Issue Price” means the price at which a Unit or Class B Unit is
purchased from the Company, net of any sales commissions or
underwriting discount charged to the Company; for the avoidance of
doubt, in the case of the Class B Units, the Issue Price shall be
deemed to be $20.55 per Class B Unit and, in the case of the
Privately Placed Units, $21.00 per Privately Placed Unit.
“Percentage Interest” means, as of any date of determination (a)
as to any Unitholder or holder of Class B Units holding Units or
Class B Units, the product obtained by multiplying (i) 100% less the
percentage established pursuant to clause (b) below by (ii) the
quotient obtained by dividing (A) the number of Units and Class B
Units held by such Unitholder or holder of Class B Units by (B) the
total number of all Outstanding Units or Outstanding Class B Units
and (b) as to the holders of other Company Securities issued by the
Company in accordance with Section 5.5, the percentage established as
part of such issuance.
“Per Unit Capital Amount” means, as of any date of
determination, the Capital Account, stated on a per Unit, Class B
Unit or Privately Placed Unit basis, as the case may be, underlying
any Unit, Class B Unit or Privately Placed Unit, as the case may be,
held by a Person.
“Private Placement Value” means with respect to the Class B
Units $22.27 per Class B Unit and the Privately Placed Units $22.27
per Privately Placed Unit.
“Privately Placed Units” means the Units issued pursuant to the
Unit Purchase Agreement.
“Pro Rata” means (a) when modifying Units, Class B Units,
Privately Placed Units or any class of any thereof, apportioned
equally among all designated Units, Class B Units or
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Privately Placed Units, as the case may be, in accordance with their relative
Percentage Interests, and (b) when modifying Members, apportioned
among all designated Members in accordance with their relative
Percentage Interest.
“Remaining Net Positive Adjustments” means, as of the end of
any taxable period, with respect to the holders of Units, Privately
Placed Units or Class B Units, the excess of (i) the Net Positive
Adjustments of the holders of Units, Privately Placed Units or Class
B Units as of the end of such period over (ii) the sum of those
Members’ Share of Additional Book Basis Derivative Items for each
prior taxable period.
“Share of Additional Book Basis Derivative Items” means, in
connection with any allocation of Additional Book Basis Derivative
Items for any taxable period, with respect to the holders of Units,
Privately Placed Units or Class B Units, the amount that bears the
same ratio to such Additional Book Basis Derivative Items as the
holders’ Remaining Net Positive Adjustments as of the end of such
period bears to the Aggregate Remaining Net Positive Adjustments as
of that time.
“Unit” means a Company Security representing a fractional part
of the Interests of all Members, and having the rights and
obligations specified with respect to Units in this Agreement, which
includes Privately Placed Units. The term “Unit” does not refer to
a Class B Unit prior to its conversion into a Unit pursuant to the
terms hereof.
“Unit Majority” means a majority of the Outstanding Units.
“Unit Purchase Agreement” means the Class B Unit and Unit
Purchase Agreement dated as of October 24, 2006 between the Company
and the purchasers named therein.
2. Article IV of the Limited Liability Company Agreement is hereby amended to add a new
Section 4.6(c) as follows:
(c) The transfer of a Class B Unit or a Privately Placed Unit shall be subject to the
restrictions imposed by Section 6.5.
3. Section 5.4(a) of the Limited Liability Company Agreement is hereby amended to add the
following at the end of such section:
The initial Capital Account balance in respect of each Class B Unit shall be the
Private Placement Value for such Class B Unit, and the initial Capital Account
balance of each holder of Class B Units in respect of all Class B Units held shall
be the product of such initial balance for a Class B Unit multiplied by the number
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of Class B Units held thereby. The initial Capital Account balance in respect of
each Privately Placed Unit shall be the Private Placement Value for such Privately
Placed Unit, and the initial Capital Account balance of each holder of Privately
Placed Units in respect of all Privately Placed Units held shall be the product of
such initial balance for a Privately Placed Unit multiplied by the number of
Privately Placed Units held thereby. Immediately following the creation of a
Capital Account balance in respect of each Class B Unit, each holder acquiring a
Class B Unit at original issuance shall be deemed to have received a cash
distribution in respect of such Class B Units in an amount equal to the product of
(x) the total number of Class B Units so acquired by such holder multiplied by (y)
the difference between the Private Placement Value and the Issue Price of a Class B
Unit. Immediately following the creation of a Capital Account balance in respect of
each Privately Placed Unit, each Unitholder acquiring a Privately Placed Unit at
original issuance shall be deemed to have received a cash distribution in respect of
such Privately Placed Units in an amount equal to the product of (x) the total
number of Privately Placed Units so acquired by such Unitholder multiplied by (y)
the difference between the Private Placement Value and the Issue Price of a
Privately Placed Unit. The purpose of the four preceding sentences is to provide
the initial purchasers of Class B Units and Privately Placed Units with a net
Capital Account in the Class B Units and Privately Placed Units on the date of
purchase equal to the Issue Price paid by those purchasers for the Class B Units and
Privately Placed Units.
4. Section 5.4(c)(i) of the Limited Liability Company Agreement is hereby amended to add the
following at the end of such section:
Any adjustments that are made under this paragraph in connection with the issuance of the
Class B Units or the Privately Placed Units shall be based on the Private Placement Value of the
Class B Units and the Privately Placed Units.
5. Article V of the Limited Liability Company Agreement is hereby amended to add a new Section
5.10 creating a new series of Company Securities as follows:
Section 5.10 Establishment of Class B Units.
(a) General. The Board hereby designates and creates a series
of Company Securities to be designated as “Class B Units” and
consisting of a total of 9,185,965 Class B Units, and fixes the
designations, preferences and relative, participating, optional or
other special rights, powers and duties of holders of the Class B
Units as set forth in this Section 5.10.
(b) Allocations. Except as otherwise provided in this
Agreement, including Section 6.1(d)(iii), all items of Company
income, gain, loss, deduction and credit shall be allocated to the
Class B Units to the same extent as such items would be so
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allocated if such Class B Units were Units (other than Privately Placed Units)
that were then Outstanding.
(c) Distributions. Each Class B Unit shall have the right to
share in Company distributions on a Pro Rata basis with the Units,
with the amount of distributions on each such Class B Unit being
equal to 115% of the quarterly cash distribution amount payable on each
Unit.
(d) Vote of Unitholders. Except as provided in this Section
5.10, the Class B Units are not convertible into Units. The Board
shall, as promptly as practicable following the issuance of the
Class B Units, but in any event not later than 90 days from the
issuance of the Class B Units, take such actions as may be necessary
or appropriate to submit to a vote or consent of the holders of the
Units the approval of a change in the terms of the Class B Units to
provide that each Class B Unit will automatically convert into one
Unit (subject to appropriate adjustment in the event of any
split-up, combination or similar event affecting the Units that
occurs prior to the conversion of the Class B Units) effective
immediately upon such approval by the Unitholders of the issuance of
additional Units upon such automatic conversion without any further
action by the holders thereof. The vote or consent required for
such approval will be the requisite vote required under this
Agreement and under the rules or staff interpretations of the
National Securities Exchange on which the Units are listed or
admitted to trading for the listing or admission to trading of the
Units that would be issued upon any such conversion. Upon receipt
of such approval and compliance with Section 5.10(f), the terms of
the Class B Units will be changed, automatically and without further
action, so that each Class B Unit is converted into one Unit and,
immediately thereafter, none of the Class B Units shall be
Outstanding.
(e) Change in Rules of National Securities Exchange. If at any
time (i) the rules of the National Securities Exchange on which the
Units are listed or admitted to trading or the staff interpretations
of such rules are changed or (ii) facts or circumstances arise so
that no vote or consent of Unitholders is required as a condition to
the listing or admission to trading of the Units that would be
issued upon any conversion of any Class B Units into Units as
provided in Section 5.10(d), the terms of such Class B Units will be
changed so that each Class B Unit is
converted (without further action or any vote of any
Unitholders other than compliance with Section 5.10(f)) into one
Unit (subject to appropriate adjustment in the event of any
split-up, combination or similar event affecting the Units that
occurs prior to the
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conversion of the Class B Units) and,
immediately thereafter, none of the Class B Units shall be
Outstanding.
(f) Surrender of Certificates. Upon receipt of the approval of
the holders of the Units to convert the Class B Units into Units in
accordance with Section 5.10(d) or a change in rules of the National
Securities Exchange or a change in facts and circumstances as
described in Section 5.10(e), the Board shall give the holders of
the Class B Units prompt notice of such approval or change and,
subject to Section 6.5, each holder of Class B Units shall promptly
surrender the Class B Unit Certificates therefor, duly endorsed, at
the office of the Company or of any transfer agent for the Class B
Units. In the case of any such conversion, the Company shall, as
soon as practicable thereafter, issue and deliver at such office to
such holder of Class B Units one or more Unit Certificates,
registered in the name of such holder, for the number of Units to
which such holder shall be entitled as aforesaid. Such conversion
shall be deemed to have been made as of the date of the event
specified in Section 5.10(d) or Section 5.10(e), as the case may be,
and the Person entitled to receive the Units issuable upon such
conversion shall be treated for all purposes as the record holder of
such Units on said date.
(g) Voting Rights. The Class B Units are non-voting, except
that the Class B Units shall be entitled to vote as a separate class
on any matter that adversely affects the rights or preferences of
the Class B Units in relation to other classes of Interests
(including as a result of a merger or consolidation) or as required
by law. The approval of a majority of the Class B Units shall be
required to approve any matter for which the holders of the Class B
Units are entitled to vote.
6. Section 6.1(c) of the Limited Liability Company Agreement is hereby amended to restate
Section 6.1(c)(i)(B) as follows:
(B) Second, 100% to all Unitholders and holders of Class B Units in accordance with
their respective Percentage Interests.
7. Section 6.1(c) of the Limited Liability Company Agreement is hereby amended to add a new
Section 6.1(c)(ii)(A) as follows:
(A) First, to the holders of Class B Units, Pro Rata, until the Capital Account in
respect to each Class B Unit then Outstanding has been reduced to zero; and
8. Section 6.1(c)(ii)(A) of the Limited Liability Company Agreement is hereby redesignated as
Section 6.1(c)(ii)(B), and Section 6.1(c)(ii)(B) of the Limited Liability Company Agreement is
hereby redesignated as Section 6.1(c)(ii)(C).
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9. Article VI of the Limited Liability Company Agreement is hereby amended to add a new
Section 6.1(d)(iii) as follows:
(iii) Priority Allocations. If the amount of cash or the Net
Agreed Value of any property distributed (except cash or property
distributed or deemed distributed pursuant to Section 5.4(a) of this
Agreement with respect to Class B Units or Privately Placed Units,
or Section 10.3 of this Agreement) to any holder of Class B Units
with respect to its Class B Units for a taxable year is greater (on
a per Class B Unit basis) than the amount of cash or the Net Agreed
Value of property distributed to the Unitholders with respect to
their Units (on a per Unit basis), then each holder of Class B Units
receiving such greater cash or property distribution shall be
allocated gross income in an amount equal to the product of (a) the
amount by which the distribution (on a per Class B Unit basis) to
such holder of Class B Units exceeds the distribution (on a per Unit
basis) to the Unitholders and (b) the number of Class B Units owned
by the holder of Class B Units.
10. Article VI of the Limited Liability Company Agreement is hereby amended to add a new
Section 6.1(d)(xii) as follows:
(xii) Allocations for Class B Units and Privately Placed Units.
(A) With respect to any taxable period of the Company ending upon, or
after, a Book-Up Event, a Book-Down Event or a sale of all or substantially
all of the assets of the Company occurring after the date of issuance of the
Class B Units and the Privately Placed Units, Company items of income or
gain for such taxable period shall be allocated 100% (1) to the Members
holding Class B Units or converted Class B Units that are Outstanding as of
the time of such event in proportion to the number of Class B Units or
converted Class B Units held by such Members, until each such Member has
been allocated the amount that increases the Capital Account of such Class B
Unit or converted Class B Unit to the Per Unit Capital Amount for a then
outstanding Unit (other than a converted Class B Unit or a Privately Placed
Unit) and (2) to the Members holding Privately Placed Units that are
Outstanding as of the time of such event in proportion to the number of
Privately Placed Units held by such Members, until each such Member has been
allocated the amount that increases the Capital Account of such Privately
Placed Unit to the Per Unit Capital Amount for a then outstanding Unit
(other than a Privately Placed Unit or a Class B Unit).
(B) With respect to any taxable period of the Company ending upon, or
after, the transfer of converted Class B Units or Privately Placed Units to
a Person that is not an Affiliate of the holder, Company items of income or
gain for such taxable period shall be allocated 100% (1) to the
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Members transferring such converted Class B Units in proportion to the number of
converted Class B Units transferred by such Members, until each such Member
has been allocated the amount that increases the Capital Account of such
converted Class B Unit to the Per Unit Capital Amount for a then outstanding
Unit (other than a converted Class B Unit or a Privately Placed Unit) and
(2) to the Members transferring such Privately Placed Units in proportion to
the number of Privately Placed Units transferred by such Members, until each
such Member has been allocated the amount that increases the Capital Account
of such Privately Placed Unit to the Per Unit Capital Amount for a then
outstanding Unit (other than a Privately Placed Unit or a converted Class B
Unit).
(C) With respect to the first taxable period of the Company ending
upon, or after, the date of issuance of the Class B Units or the Privately
Placed Units, at the election of a Member holding Class B Units or Privately
Placed Units (the “Capital Account True-Up Election”), items of income or
gain for such taxable period shall be allocated 100% to the Members making
such Capital Account True-Up Election with respect to Class B Units or
Privately Placed Units that are Outstanding as of the time of such Capital
Account True-Up Election in proportion to the number of Class B Units or
Privately Placed Units held by such Members, until each such Member has been
allocated the amount that increases, the Capital Account of such Class B Unit
or Privately Placed Unit to the Per Unit Capital Amount for a then
outstanding Unit (other than a Class B Unit or a Privately Placed Unit).
11. Section 6.1(d)(xi)(A) of the Limited Liability Company Agreement is hereby amended to
replace the phrase “this Amended and Restated Limited Liability Company Agreement” in the two
places that it appears to “this Agreement”.
12. Section 6.4 of the Limited Liability Company Agreement is hereby amended to replace the
reference to “Section 5.6(b)” with “Section 5.5(b)”.
13. Article VI is hereby amended to add a new Section 6.5 as follows:
Section 6.5 Special Provisions Relating to Holders of Class B Units and Privately Placed
Units. A holder of (1) a Privately Placed Unit or (2) a Class B Unit that has converted
into a Unit pursuant to Section 5.10 shall be required to provide notice to the Board of the
number of Privately Placed Units or converted Class B Units transferred by such holder no
later than the last Business Day of the calendar year during which such transfer occurred,
unless (x) the transfer is to an Affiliate of the holder or (y) by virtue of the application
of Section 6.1(d)(xii)(B) to a prior transfer of the Unit or the application of Section
6.1(d)(xii)(A) or Section 6.1(d)(xii)(C), the Board has previously determined,
based on advice of counsel, that the Privately Placed Unit or converted Class B Unit should
have, as a substantive matter, like intrinsic economic and federal income tax
characteristics of an Initial Unit; provided, that such holder may cure any failure to
provide such notice by providing such notice within 20 days of the last Business Day of
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such calendar year. The sole and exclusive remedy for any holder’s failure to provide any such
notice shall be the enforcement of the remedy of specific performance against such holder
and there will be no monetary damages. In connection with the condition imposed by this
Section 6.5, the Board shall take whatever steps are required to provide economic uniformity
to the Privately Placed Units and converted Class B Units in preparation for a transfer
thereof, including the application of Section 6.1(d)(xii)(B); provided, however, that no
such steps may be taken that would have a material adverse effect on the Unitholders holding
Units represented by Unit Certificates.
B. Agreement in Effect. Except as hereby amended, the Limited Liability Company
Agreement shall remain in full force and effect.
C. Applicable Law. This Amendment shall be construed in accordance with and governed
by the laws of the State of Delaware, without regard to principles of conflicts of laws.
D. Invalidity of Provisions. If any provision of this Amendment is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.
| LINN ENERGY, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
| Executive Vice President and Chief Financial Officer | ||||
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