EXHIBIT 3.8
AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF PLAINS ALL
AMERICAN PIPELINE, L.P.
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF PLAINS ALL AMERICAN PIPELINE, L.P. (this "Amendment"), dated as
of May 12, 1999 entered into and effectuated by Plains All American Inc., a
Delaware corporation, as the General Partner, pursuant to authority granted to
it in Section 5.6 of the Second Amended and Restated Agreement of Limited
Partnership of Plains All American Pipeline, L.P., dated as of November 17,
1998, as amended (the "Partnership Agreement"). Capitalized terms used but not
defined herein are used as defined in the Partnership Agreement.
WHEREAS, Section 5.6 of the Partnership Agreement provides that the General
Partner, without the approval of any Limited Partners, may issue additional
Partnership Securities, or classes or series thereof, for any Partnership
purpose at any time and from time to time, and may issue such Partnership
Securities for such consideration and on such terms and conditions as shall be
established by the General Partner in its sole discretion; and
WHEREAS, the General Partner deems it in the best interest of the
Partnership to effect this Amendment in order to provide for the issuance of the
Class B Common Units to Plains All American Inc. in order to facilitate the
financing for an expeditious closing of the acquisition by Plains Marketing,
L.P., or its affiliate, of a membership interest in Xxxxxxxx Permian LLC
pursuant to a Purchase and Sale Agreement dated March 17, 1999, between Plains
Marketing, L.P. and Marathon Ashland Petroleum LLC, and to further provide for
the exchange in accordance with the terms described herein of the Class B Common
Units created hereby for 1,307,190 Common Units; and
WHEREAS, the General Partner has determined that the creation of Class B
Common Units provided for in this Amendment and the exchange of Units
contemplated hereby will be in the best interest of the Partnership and
beneficial to the Limited Partners, including the holders of the Common Units,
because it should result in a cost savings to the Partnership and should have no
adverse impact on the holders of Common Units;
NOW, THEREFORE, the Partnership Agreement is hereby amended to create a new
class of Partnership Securities as follows:
Section 5.12 ESTABLISHMENT OF UNITS. (a) There is hereby created a series
of Units to be designated as "Class B Common Units," consisting of Class B
Common Units and having the following terms and conditions:
(i) Subject to the provisions of Section 6.1(d)(iii)(A), all allocations of
items of Partnership income, gain, loss, deduction and credit under Section 6.1
shall be allocated to
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the Class B Common Units on a basis that is pro rata with the Common Units, so
that the amount thereof allocated to each Common Unit will equal the amount
thereof allocated to each Class B Common Unit;
(ii) Except as provided in paragraph (f) of this Section 5.12, the Class B
Common Units shall have the right to share in partnership distributions on a pro
rata basis with the Common Units, so that the amount of any Partnership
distribution to each Common Unit will equal the amount of such distribution to
each Class B Common Unit;
(iii) The Class B Common Units shall have rights upon dissolution and
liquidation of the Partnership, including the right to share in any liquidating
distributions, that are pro rata with the Common Units, so that the amount of
any liquidating distribution to each Common Unit will equal the amount of such
distribution to each Class B Common Unit;
(iv) The Class B Common Units will not have the privilege of conversion
except as provided in paragraphs (c) or (d) of this Section 5.12;
(v) The Class B Common Units will have voting rights that are identical to
the voting rights of the Common Units and will vote with the Common Units as a
single class, so that each Class B Common Unit will be entitled to one vote on
each matter with respect to which each Common Unit is entitled to be voted;
provided, however, that the Class B Common Units shall not be entitled to vote,
and shall not be deemed outstanding for purposes of determining a quorum, with
respect to matters in which the requisite vote is determined by New York Stock
Exchange rules or New York Stock Exchange staff interpretations of such rules
for listing of the Common Units; each reference in the Partnership Agreement to
a vote of holders of Common Units shall be deemed to be a reference to the
holders of Common Units and Class B Common Units;
(vi) The Class B Common Units will be evidenced by certificates in such
form as the General Partner may approve and, subject to the satisfaction of any
applicable legal and regulatory requirements, may be assigned or transferred in
a manner identical to the assignment and transfer of other Units; the General
Partner will act as registrar and transfer agent for the Class B Common Units;
and
(vii) Except as otherwise provided in the Partnership Agreement and unless
the context otherwise requires, for purposes of allocations referred to in
paragraph (a)(i), the right to share in Partnership distributions referred to in
paragraph (a)(ii), rights upon dissolution and liquidation referred to in
paragraph (a)(iii), and voting rights referred to in paragraph (a)(v), and for
all other purposes, the Class B Common Units and the Common Units shall be
considered as a single class of Units, each Class B Common Unit shall be treated
in a manner that is identical, in all respects, to each Common Unit, and each
reference in the Partnership Agreement to Common Units shall also be deemed to
be a reference to Class B Common Units.
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(b) The terms and conditions upon which the Class B Common Units will be
issued are as follows: the Partnership will issue the Class B Common Units to
Plains All American, Inc., and Plains All American, Inc. will purchase such
Class B Common Units for $25,000,000 in cash; upon receipt of such purchase
price the Partnership will issue a certificate to Plains All American, Inc.
representing such Class B Common Units.
(c) At any time after six months from the date of this Amendment, upon
written notice to the General Partner, any holder of Class B Common Units will
have the right to require the Partnership to use its reasonable best efforts to
submit to a vote or consent of its securityholders the approval of a change in
the terms of the Class B Common Units to provide that each Class B Common Unit
is convertible into one Common Unit at the option of the holder of such Class B
Common Unit, such conversion option to be exercisable by any holder of Class B
Common Units in whole or in part at any time and from time to time. The vote or
consent required for such change will be the requisite vote required, under New
York Stock Exchange rules or New York Stock Exchange staff interpretations of
such rules, for listing of the Common Units that would be issued upon any such
conversion. Upon receipt of the required vote or consent, the terms of the Class
B Common Units will be changed so that they become convertible as described
above.
(d) Before any holder of Class B Common Units shall be entitled to convert
such holder's Class B Common Units into Common Units, he shall surrender the
Class B Common Unit Certificates therefor, duly endorsed, at the office of the
General Partner or of any transfer agent for the Class B Common Units. In the
case of any such conversion, the Partnership shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Class B Common
Units one or more Common Unit Certificates, registered in the name of such
holder, for the number of Common Units to which he shall be entitled as
aforesaid. Such conversion shall be deemed to have been made as of the date of
the surrender of the Class B Common Units to be converted, and the person
entitled to receive the Common Units issuable upon such conversion shall be
treated for all purposes as the record holder of such Common Units on said date.
(e) If at any time the rules of the New York Stock Exchange or the New York
Stock Exchange staff interpretations of such rules are changed so that no vote
or consent of securityholders of the Partnership is required as a condition to
the listing of the Common Units that would be issued upon such conversion, the
terms of the Class B Common Units will be changed so that each Class B Common
Unit is convertible (without any vote of any securityholders of the Partnership)
into one Common Unit at the option of the holder thereof, such conversion option
to be exercisable by any holder of Class B Common Units in whole or in part at
any time and from time to time.
(f) In the event that (i) any holder of Class B Common Units requires the
Partnership to submit to a vote or consent of its securityholders the approval
of a change in the terms of the Class B Common Units to provide that they are
convertible as provided in Section 5.12(c) above, and (ii) the securityholders
do not approve such change by the requisite vote within 120 days after the
notice given pursuant to Section 5.12(c), then the terms of the Class B Common
Units will be changed so that each Class B Common Unit will become entitled to
receive quarterly cash distributions in an amount equal to 110% of the quarterly
cash distribution amount payable to holders of the Common Units; provided,
however, that if the securityholders do not approve such change by the requisite
vote
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within 210 days after the notice given pursuant to Section 5.12(c), each Class B
Common Unit will become entitled to receive quarterly cash distributions equal
to 115% of the quarterly cash distribution payable to holders of Common Units.
Notwithstanding the foregoing, in no such case shall any holder of Class B
Common Units have the right to convert its Class B Common Units unless such
holder and its affiliates voted their Partnership Securities for approval of
such change (if and to the extent that such Partnership Securities were entitled
to be voted).
This Amendment will be governed by and construed in accordance with
the laws of the State of Delaware.
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above.
PLAINS ALL AMERICAN INC.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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