AMENDMENT NO. 1 TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF MARTIN MIDSTREAM PARTNERS L.P.
Exhibit 3.1
AMENDMENT NO. 1 TO
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP
OF
XXXXXX MIDSTREAM PARTNERS L.P.
This AMENDMENT NO. 1 TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF XXXXXX
MIDSTREAM PARTNERS L.P. (this “Amendment”), dated as of November 1, 2007, is entered into by Xxxxxx
Midstream GP LLC, a Delaware limited liability company (the “General Partner”), as general partner
of Xxxxxx Midstream Partners L.P. (the “Partnership”). Capitalized terms used but not defined
herein are used as defined in the First Amended and Restated Agreement of Limited Partnership of
Xxxxxx Midstream Partners L.P., dated as of November 6, 2002 (the “Partnership Agreement”).
RECITALS:
WHEREAS, the NASDAQ Marketplace Rules require issuers to allow for uncertificated securities;
WHEREAS, Section 13.1(d)(i) of the Partnership Agreement provides that the General Partner may
amend any provision of the Partnership Agreement without the approval of any Partner to reflect a
change that, in the discretion of the General Partner, does not adversely affect the Limited
Partners (including any particular class of Partnership Interests as compared to other classes of
Partnership Interests) in any material respect; and
WHEREAS, Section 13.1(d)(ii)(B) of the Partnership Agreement provides that the General Partner
may amend any provision of the Partnership Agreement without the approval of any Partner to reflect
a change that, in the discretion of the General Partner, is necessary of advisable to facilitate
the trading of the Units (including the division of any class or classes of Outstanding Units into
different classes to facilitate uniformity of tax consequences within such classes of Units) or
comply with any rule, regulation, guideline or requirement of any National Securities Exchange on
which the Units are or will be listed for trading, compliance with any of which the General Partner
determines in its discretion to be in the best interests of the Partnership and the Limited
Partners, and
WHEREAS, acting pursuant to the power and authority granted to it under Section 13.1(d)(i) and
Section 13.1(d)(ii)(B) of the Partnership Agreement, the General Partner has determined that (i)
this Amendment to the Partnership Agreement does not adversely affect the Limited Partners
(including any particular class of Partnership Interests as compared to other classes of
Partnership Interests) in any material respect and (ii) that this Amendment is required to
facilitate the trading of the Units and to comply with the rules, regulations, guidelines and
requirements of the NASDAQ Global Select Market on which the Units are listed for trading and that
such Amendment 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:
1. The word “shall” in the first sentence of Section 4.1 shall be replaced by the word “may.”
2. The following sentence shall be added to the end of Section 4.1:
“Notwithstanding the above provisions, Common Units may be uncertificated.”
3. Section 4.2(b) shall be amended and restated in its entirety to read as follows:
“(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 in place of any
Certificate previously issued or issue uncertificated Units 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 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 reasonably direct, in its sole discretion, 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 or Assignee fails to notify the General Partner within a reasonable 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 or Assignee
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 uncertificated Unit.”
4. Section 4.2(c) shall be amended and restated in its entirety to read as follows:
“As a condition to the issuance of any new Certificate or uncertificated Unit 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.”
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5. Section 4.5 shall be amended and restated in its entirety to read as follows:
“Section 4.5 Registration and Transfer of Limited Partner Interests.
(a) The Partnership 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 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
evidence of the issuance of uncertificated Common 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 Partnership shall not recognize any
transfer of Limited Partner Interests evidenced by a Certificate until the Certificates evidencing
such Limited Partner Interests, or other evidence of the uncertificated Common 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
uncertificated issuance of Common 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.
(c) Upon receipt of proper transfer instructions from the registered owner of uncertificated
Common Units, such uncertificated Common Units shall be cancelled, issuance of new equivalent
uncertificated Common Units or Certificates shall be made to the holder of Common Units entitled
thereto and the transaction shall be recorded upon the books of the Partnership.
(d) Limited Partner Interests may be transferred only in the manner described in this Section
4.5. The transfer of any Limited Partner Interests and the admission of any new Limited Partner
shall not constitute an amendment to this Agreement.
(e) Until admitted as a Substituted Limited Partner pursuant to Section 10.2, the Record
Holder of a Limited Partner Interest shall be an Assignee in respect of such Limited Partner
Interest. Limited Partners may include custodians, nominees or any other individual or entity in
its own or any representative capacity.
(f) A transferee of a Limited Partner Interest who has completed and delivered a Transfer
Application shall be deemed to have (i) requested admission as a Substituted Limited Partner, (ii)
agreed to comply with and be bound by and to have executed this Agreement, (iii)
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represented and warranted that such transferee has the right, power and authority and, if an
individual, the capacity to enter into this Agreement, (iv) granted the powers of attorney set
forth in this Agreement and (v) given the consents and approvals and made the waivers contained in
this Agreement.
(g) The General Partner and its Affiliates shall have the right at any time to transfer their
Subordinated Units and Common Units (whether issued upon conversion of the Subordinated Units or
otherwise) to one or more Persons.”
6. The last sentence of Section 4.10(a)(i) shall be amended to read as follows:
“The notice shall specify the Redeemable Interests, the date fixed for redemption, the place
of payment, that (if applicable) payment of the redemption price will be made upon surrender of the
Certificate evidencing the Redeemable Interests or, if uncertificated, upon receipt of evidence
satisfactory to the General Partner of the ownership of the Redeemable Interests, and that on and
after the date fixed for redemption no further allocations or distributions to which the Limited
Partner or Assignee would otherwise be entitled in respect of the Redeemable Interests will accrue
or be made.”
7. Section 4.10(a)(iii) shall be amended and restated in its entirety to read as follows:
“Upon surrender by or on behalf of the Limited Partner or Assignee, at the place specified in
the notice of redemption, of (x) if certificated, the Certificate evidencing the Redeemable
Interests, duly endorsed in blank or accompanied by an assignment duly executed in blank, or (y) if
uncertificated, upon receipt of evidence satisfactory to the General Partner of the ownership of
the Redeemable Interests, the Limited Partner or Assignee or his duly authorized representative
shall be entitled to receive the payment therefor.”
8. The first sentence of Section 5.10(c) shall be amended to read as follows:
“Promptly following any such distribution, subdivision or combination, the Partnership may
issue Certificates or uncertificated Partnership Securities 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 as it may deem
appropriate to reflect such changes.”
9. General Authority. The appropriate officers of the General Partner are hereby
authorized to make such further clarifying and conforming changes they deem necessary or
appropriate, and to interpret the Partnership Agreement, to give effect to the intent and purpose
of this Amendment.
10. 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.
11. Governing Law. This Amendment will be governed by and construed in accordance
with the laws of the State of Delaware.
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IN WITNESS WHEREOF, the General Partner has executed this Amendment to be effective as of the
date first set forth above.
| GENERAL PARTNER Xxxxxx Midstream GP, LLC |
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
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