AMENDMENT NO. 4 TO THE FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ENTERPRISE PRODUCTS PARTNERS L.P.
Exhibit 3.1
AMENDMENT NO. 4 TO THE FIFTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
ENTERPRISE PRODUCTS PARTNERS L.P.
AGREEMENT OF LIMITED PARTNERSHIP OF
ENTERPRISE PRODUCTS PARTNERS L.P.
This Amendment No. 4 (this “Amendment No. 4”) to the Fifth Amended and Restated
Agreement of Limited Partnership of Enterprise Products Partners L.P. dated effective as of October
26, 2009 (the “Partnership Agreement”) is hereby adopted by Enterprise Products GP, 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.
RECITALS
WHEREAS, Section 5.6 of the Partnership Agreement provides that the General Partner, without
the approval of any Limited Partners, may, for any Partnership purpose, at any time or from time to
time, issue additional Partnership Securities for such consideration and on such terms and
conditions as determined by the General Partner; and
WHEREAS, Section 13.1(g) 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 an amendment that the General Partner determines to be necessary or advisable in connection
with the authorization of the issuance of any class or series of Partnership Securities pursuant to
Section 5.6 of the Partnership Agreement; and
WHEREAS, Section 13.1(d)(i) 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 the General Partner determines does not adversely affect the Limited Partners
in any material respect; and
WHEREAS, the Partnership has entered into an Agreement and Plan of Merger, dated as of June
28, 2009 (the “Merger Agreement”), by and among the Partnership, the General Partner,
Enterprise Sub B LLC (“Enterprise Sub B”), TEPPCO Partners, L.P. (“TEPPCO”) and
Texas Eastern Products Pipeline Company, LLC (“TEPPCO GP”), pursuant to which, among other
things, (i) Enterprise Sub B will merge with and into TEPPCO, with TEPPCO as the surviving entity,
and (ii) the Partnership will issue to Xxxxxx Family Interests, Inc. Class B Units representing a
new class of Partnership Securities to be designated as “Class B Units,” with such terms as are set
forth in this Amendment No. 4; and
WHEREAS, the issuance of the Class B Units complies with the requirements of the Partnership
Agreement; and
WHEREAS, the General Partner has determined, pursuant to Section 13.1(g) of the Partnership
Agreement, that the amendments to the Partnership Agreement set forth herein are necessary or
appropriate in connection with the authorization of the issuance of the Class B Units; and
NOW, THEREFORE, the General Partner does hereby amend the Partnership Agreement as follows:
Section 1. Amendments.
(a) Section 1.1 and Attachment 1. Section 1.1 and the definitions listed on
Attachment I are hereby amended to add, or to amend and restate, the following definitions:
“Class B Conversion Effective Date” has the meaning assigned to such term in Section 5.12(f).
“Class B Unit” means a Partnership Security representing a fractional part of the Partnership
Interests of all Limited Partners and Assignees, and having the rights and obligations specified
with respect to the Class B Units in this Agreement. The term “Class B Unit” does not refer to a
Common Unit until such Class B Unit has converted into a Common Unit pursuant to the terms hereof.
“Limited Partner Interest” means the ownership interest of a Limited Partner or Assignee in
the Partnership, which may be evidenced by Common Units or Class B Units or other Partnership
Securities or a combination thereof or interest therein, and includes any and all benefits to which
such Limited Partner or Assignee is entitled as provided in this Agreement, together with all
obligations of such Limited Partner or Assignee to comply with the terms and provisions of this
Agreement.
“Outstanding” means, with respect to Partnership Securities, all Partnership Securities that
are issued by the Partnership and reflected as outstanding on the Partnership’s books and records
as of the date of determination; provided, however, that with respect to Partnership Securities, if
at any time any Person or Group (other than the General Partner or its Affiliates) beneficially
owns 20% or more of any Outstanding Partnership Securities of any class then Outstanding, all
Partnership Securities owned by such Person or Group shall not be voted on any matter and shall not
be considered to be Outstanding when sending notices of a meeting of Limited Partners to vote on
any matter (unless otherwise required by law), calculating required votes, determining the presence
of a quorum or for other similar purposes under this Agreement, except that Common Units so owned
shall be considered to be Outstanding for purposes of Section 11.1(b)(iv) (such Common
Units shall not, however, be treated as a separate class of Partnership Securities for purposes of
this Agreement); provided, further, that the limitation in the foregoing proviso shall not apply
(i) to any Person or Group who acquired 20% or more of any Outstanding Partnership Securities of
any class then Outstanding directly from the General Partner or its Affiliates, (ii) to any Person
or Group who acquired 20% or more of any Outstanding Partnership Securities of any class then
Outstanding directly or indirectly from a Person or Group described in clause (i) if the
General Partner shall have notified such Person or Group in writing, prior to such acquisition,
that such limitation shall not apply to such Person or Group or (iii) to any Person or Group who
acquired 20% or more of any Partnership Securities issued by the Partnership with the prior
approval of the Board of Directors of the General Partner; and provided, further, that none of the
Class B Units shall be deemed to be Outstanding
for purposes of determining if any Class B Units are entitled to distributions of Available
Cash unless such Class B Units shall have been reflected on the books of the Partnership as
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outstanding during such Quarter and on the Record Date for the determination of any distribution of
Available Cash.
(b) Article IV; Section 4.7(d). Article IV of the Partnership Agreement is hereby
amended to add Section 4.7(d) as follows:
“(d) The transfer of a Class B Unit that has converted into a Common Unit shall be
subject to the restrictions imposed by Section 6.9.”
(c) Section 5.5(c). Section 5.5(c) of the Partnership Agreement is hereby amended and
restated as follows:
“(c)(i) A transferee of a Partnership Interest shall succeed to a pro rata portion of
the Capital Account of the transferor relating to the Partnership Interest so transferred.
(ii) Subject to Section 6.9, immediately prior to the transfer of a Class B Unit or of
a Class B Unit that has converted into a Common Unit pursuant to Section 5.12(f) by a holder
thereof (other than a transfer to an Affiliate unless the General Partner elects to have
this subparagraph 5.5(c)(ii) apply), the Capital Account maintained for such Person with
respect to its Class B Units or converted Class B Units will (A) first, be allocated to the
Class B Units or converted Class B Units to be transferred in an amount equal to the product
of (x) the number of such Class B Units or converted Class B Units to be transferred and (y)
the Per Unit Capital Amount for a Common Unit, and (B) second, any remaining balance in such
Capital Account will be retained by the transferor, regardless of whether it has retained
any Class B Units or converted Class B Units. Following any such allocation, the
transferor’s Capital Account, if any, maintained with respect to the retained Class B Units
or retained converted Class B Units, if any, will have a balance equal to the amount
allocated under clause (B) hereinabove, and the transferee’s Capital Account established
with respect to the transferred Class B Units or converted Class B Units will have a balance
equal to the amount allocated under clause (A) hereinabove.”
(d) Article V; Section 5.12. Article V of the Partnership Agreement is hereby amended
to add a new Section 5.12 creating a new series of Partnership Units as follows:
“Section 5.12 Establishment of Class B Units.
(a) General. The General Partner hereby designates and creates a class of
Units to be designated as “Class B Units” and consisting of a total of 4,520,431
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 5.12.
(b) Rights of Class B Units. During the period commencing upon issuance of the
Class B Units and ending on the Class B Conversion Effective Date:
(i) Allocations. Except as otherwise provided in this Agreement, all
items of Partnership income, gain, loss, deduction and
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credit, including
Unrealized Gain or Unrealized Loss to be allocated to the Partners pursuant
to Section 6.1(c), shall be allocated to the Class B Units to the same
extent as such items would be so allocated if such Class B Units were Common
Units that were then Outstanding.
(ii) Distributions. Prior to the Class B Conversion Effective Date,
the Class B Units shall not be entitled to receive distributions of
Available Cash pursuant to Section 6.3.
(c) Voting Rights. Prior to the Class B Conversion Effective Date, the Class B
Units shall be entitled to vote with the Common Units as a single class on any
matters on which Common Unitholders are entitled to vote, 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 Partnership 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 as a separate class. Each Class B Unit will be entitled to the number of votes
equal to the number of Common Units into which a Class B Unit is convertible at the
time of the record date for the vote or written consent on the matter.
(d) Certificates. The Class B Units will be evidenced by certificates in
substantially the form of Exhibit A to this Amendment No. 4 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 certificates will initially include a restrictive legend to the
effect that the Class B Units have not been registered under the Securities Act or
any state securities laws.
(e) Registrar and Transfer Agent. The General Partner will act as registrar
and transfer agent of the Class B Units.
(f) Conversion. Each Class B Unit shall automatically convert into one Common
Unit (subject to appropriate adjustment pursuant to Section 5.10 in the event of any
split-up, combination or similar event affecting the Common Units or other Units
that occurs prior to the Class B Conversion Effective Date) on the date immediately
following the payment date for the 16th distribution of Available Cash pursuant to
Section 6.3 following the Closing Date (as defined in the Merger Agreement”) (the
“Class B Conversion Effective Date”) without any further action by the
holders thereof. The terms of the Class B Units will be changed, automatically and
without further action, on the Class B Conversion Effective Date so that each Class
B Unit is converted into one Common Unit and, immediately thereafter, none of the
Class B Units shall be Outstanding; provided,
however, that such converted Class B Units will remain subject to the
provisions of Sections 6.1(d)(xiii) and 6.9.
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(g) Surrender of Certificates. Subject to the requirements of Section 6.9, on
or after the Class B Conversion Effective Date, each holder of Class B Units shall
promptly surrender the Class B Unit Certificates therefor, duly endorsed, at the
office of the General Partner or of any transfer agent for the Class B 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 Units one or
more Unit Certificates, registered in the name of such holder, or other evidence of
the issuance of uncertificated certificates, for the number of Common Units to which
such holder shall be entitled. Such conversion shall be deemed to have been made as
of the Class B Conversion Effective Date whether or not the Class B Unit Certificate
has been surrendered as of such date, 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 as of such date.
(e) Section 6.1(d)(iii)(A). Section 6.1(d)(iii)(A) of the Partnership Agreement is
hereby amended and restated to read in its entirety:
“A. If the amount of cash or the Net Agreed Value of any property distributed
(except cash or property distributed pursuant to Section 12.4) to any Unitholder
with respect to its Units for a taxable year is greater (on a per Unit basis) than
the amount of cash or the Net Agreed Value of property distributed to the other
Unitholders (except Unitholders holding Class B Units with respect to any Record
Date prior to the Class B Conversion Effective Date) with respect to their Units (on
a per Unit basis), then (1) there shall be allocated income and gain to each
Unitholder receiving such greater cash or property distribution until the aggregate
amount of such items allocated pursuant to this Section 6.1(d)(iii)(A) for the
current taxable year and all previous taxable years is equal to the product of (aa)
the amount by which the distribution (on a per Unit basis) to such Unitholder
exceeds the distribution (on a per Unit basis) to the Unitholders receiving the
smallest distribution and (bb) the number of Units owned by the Unitholder receiving
the greater distribution; and (2) the General Partner shall be allocated income and
gain in an aggregate amount equal to the product obtained by multiplying the sum of
the amounts allocated in clause (1) above by the quotient obtained by dividing the
General Partner’s Percentage Interest by the aggregate Percentage Interest of
Partners other than the General Partner.
(f) Section 6.1(d)(xiii). Section 6.1(d) is hereby amended and restated to add a new
Section 6.1(d)(xiii) as follows:
“(xiii) Economic Uniformity. With respect to any taxable period in which the Class B
Conversion Effective Date occurs (and, if necessary, any subsequent taxable period), items
of Partnership gross income, gain, deduction or loss for the taxable period shall be
allocated 100% to each Limited Partner with respect to such Limited Partner’s
Class B Units that are Outstanding on the Class B Conversion Effective Date in the
proportion that the respective number of Class B Units held by such Partner bears to the
total number of Class B Units then Outstanding, until each such Partner has been
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allocated
the amount of gross income, gain, deduction or loss with respect to such Partner’s Class B
Units that causes the Capital Account attributable to each Class B Unit, on a per Unit
basis, to equal the Per Unit Capital Amount for a Common Unit on the Class B Conversion
Effective Date. The purpose for this allocation is to establish uniformity between the
Capital Accounts underlying converted Class B Units and the Capital Accounts underlying
Common Units immediately prior to the conversion of Class B Units into Common Units.
(g) Article VI; Section 6.9. Article VI is hereby amended and restated to add a new
Section 6.9 as follows:
“Section 6.9 Special Provisions Relating to the Holders of Class B Units. A Unitholder
holding a Class B Unit that has converted into a Common Unit pursuant to Section 5.12 shall
not be issued a Unit Certificate pursuant to Section 4.1, and shall not be permitted to
transfer such Common Units until such time as the General Partner determines, based on
advice of counsel, that the converted Class B Unit should have, as a substantive matter,
like intrinsic economic and federal income tax characteristics of an Initial Common Unit.
In connection with the condition imposed by this Section 6.9, the General Partner shall take
whatever steps are required to provide economic uniformity to the converted Class B Units in
preparation for a transfer of such Common Units, including the application of Sections
5.5(c)(ii) and 6.1(d)(xiii); provided, however, that no such steps may be taken that would
have a material adverse effect on the Unitholders holding Common Units represented by Unit
Certificates.”
Section 2. Ratification of Partnership Agreement. Except as expressly modified and amended herein, all of the terms and conditions of the
Partnership Agreement shall remain in full force and effect.
Section 3. Governing Law. This Amendment No. 4 will be governed by and construed in accordance with the laws of the
State of Delaware.
Section 4. Counterparts. This Amendment No. 4 may be executed in counterparts, all of which together shall
constitute an agreement binding on all the parties hereto, notwithstanding that all such parties
are not signatories to the original or the same counterpart.
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IN WITNESS WHEREOF, this Amendment No. 4 has been executed as of the date first written above.
| General Partner: ENTERPRISE PRODUCTS GP, LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| President and Chief Executive Officer | ||||
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EXHIBIT A
Certificate Evidencing Class B Units
Representing Limited Partner Interests in
ENTERPRISE PRODUCTS PARTNERS L.P.
Representing Limited Partner Interests in
ENTERPRISE PRODUCTS PARTNERS L.P.
| No. __________ | ________Class B Units |
In accordance with Amendment No. 4 to the Fifth Amended and Restated Agreement of Limited
Partnership of ENTERPRISE PRODUCTS PARTNERS L.P., as amended, supplemented or restated from time to
time (the “Partnership Agreement”), ENTERPRISE PRODUCTS PARTNERS L.P., a Delaware limited
partnership (the “Partnership”), hereby certifies that (the “Holder”) is the
registered owner of Class B Units representing limited partner interests in the Partnership (the
“Class B Units”) transferable on the books of the Partnership, in person or by duly
authorized attorney, upon surrender of this Certificate properly endorsed and accompanied by a
properly executed application for transfer of the Class B Units represented by this Certificate.
The rights, preferences and limitations of the Class B Units are set forth in, and this Certificate
and the Class B Units represented hereby are issued and shall in all respects be subject to the
terms and provisions of, the Partnership Agreement. Copies of the Partnership Agreement are on
file at, and will be furnished without charge on delivery of written request to the Partnership at,
the principal office of the Partnership located at 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxx 00000. Capitalized terms used herein but not defined shall have the meanings given them in
the Partnership Agreement.
The Holder, by accepting this Certificate, is deemed to have (i) requested admission as, and
agreed to become, a Limited Partner and to have agreed to comply with and be bound by and to have
executed the Partnership Agreement, (ii) represented and warranted that the Holder has all right,
power and authority and, if an individual, the capacity necessary to enter into the Partnership
Agreement, (iii) granted the powers of attorney provided for in the Partnership Agreement and (iv)
made the waivers and given the consents and approvals contained in the Partnership Agreement.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. IT MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE PARTNERSHIP THAT SUCH REGISTRATION IS NOT REQUIRED.
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF ENTERPRISE PRODUCTS PARTNERS L.P.
THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH
TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND
REGULATIONS OF THE SECURITIES AND EXCHANGE
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COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH
JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF ENTERPRISE
PRODUCTS PARTNERS L.P. UNDER THE LAWS OF THE STATE OF DELAWARE, OR (C) CAUSE ENTERPRISE PRODUCTS
PARTNERS L.P. TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE TAXED AS
AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO TREATED OR TAXED).
ENTERPRISE PRODUCTS GP, LLC, THE GENERAL PARTNER OF ENTERPRISE PRODUCTS PARTNERS L.P., MAY IMPOSE
ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT
SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF ENTERPRISE PRODUCTS PARTNERS L.P.
BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX
PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS
INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON
WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.
This Certificate shall not be valid for any purpose unless it has been countersigned and
registered by the Transfer Agent and Registrar.
| Dated: | ENTERPRISE PRODUCTS PARTNERS L.P. | |||||||
| Countersigned and Registered by: | By: ENTERPRISE PRODUCTS GP, LLC, its General Partner |
|||||||
| By: | ||||||||
as Transfer Agent and Registrar
|
Name: | |||||||
By:
|
By: | |||||||
| Authorized Signature | Secretary | |||||||
A-2
[Reverse of Certificate]
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Certificate,
shall be construed as follows according to applicable laws or regulations:
TEN COM - as tenants in common
|
UNIF GIFT/TRANSFERS MIN ACT | |
TEN ENT - as tenants by the entireties
|
___________Custodian___________ | |
| (Cust) (Minor) | ||
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
|
under Uniform Gifts/Transfers to CD Minors Act (State) |
Additional abbreviations, though not in the above list, may also be used.
FOR VALUE RECEIVED, _______________ hereby assigns, conveys, sells and transfers unto
(Please print or typewrite name
and address of Assignee)
|
(Please insert Social Security or other identifying number of Assignee) |
_______________Class B Units representing limited partner interests evidenced by this Certificate, subject
to the Partnership Agreement, and does hereby irrevocably constitute and appoint
_____________________________________________ as its attorney-in-fact with full power of substitution to transfer the
same on the books of ENTERPRISE PRODUCTS PARTNERS L.P.
Date: _______________
|
NOTE: The signature to any endorsement hereon must correspond with the name as written upon the face of this Certificate in every particular, without alteration, enlargement or change. | |
THE SIGNATURE(S) MUST BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15
|
(Signature) |
A-3
No transfer of the Class B Units evidenced hereby will be registered on the books of the
Partnership, unless the Certificate evidencing the Class B Units to be transferred is surrendered
for registration or transfer and, if requested by the General Partner pursuant to Section 4.8 of
the Partnership Agreement, a Citizenship Certificate has been properly completed and executed by a
transferee on a separate application that the Partnership will furnish on request without charge.
A transferor of the Class B Units shall have no duty to the transferee with respect to execution of
a Citizenship Certificate in order for such transferee to obtain registration of the transfer of
the Class B Units.
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