UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): July 23, 2018
RICE MIDSTREAM PARTNERS LP
(Exact name of registrant as specified in its charter)
|
Delaware |
|
1-36789 |
|
47-1557755 |
|
(State or Other Jurisdiction |
|
(Commission |
|
(I.R.S. Employer |
|
625 Liberty Avenue, Suite 1700 |
|
|
|
Pittsburgh, Pennsylvania |
|
15222 |
|
(Address of Principal Executive Offices) |
|
(Zip Code) |
(412) 553-5700
Registrant’s telephone number, including area code
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Introductory Note.
On July 23, 2018, EQT Midstream Partners, LP (EQM) completed its previously announced acquisition of Rice Midstream Partners LP (RMP) pursuant to the Agreement and Plan of Merger, dated as of April 25, 2018 (the Merger Agreement), by and among EQM, EQT Midstream Services, LLC, the general partner of EQM, EQM Acquisition Sub, LLC, a wholly owned subsidiary of EQM (Merger Sub), EQM GP Acquisition Sub, LLC, a wholly owned subsidiary of EQM (GP Merger Sub), RMP, Rice Midstream Management LLC, the general partner of RMP (the RMP General Partner), and, solely for purposes of certain provisions therein, EQT Corporation (EQT). Pursuant to the terms of the Merger Agreement, on July 23, 2018, (i) Merger Sub merged with and into RMP (the Merger) with RMP continuing as the surviving limited partnership in the Merger and a wholly owned indirect subsidiary of EQM (the Surviving Entity) and (ii) GP Merger Sub merged with and into the RMP General Partner, with the RMP General Partner continuing as the surviving entity and a wholly owned indirect subsidiary of EQM (the Surviving GP Entity).
Item 1.02. Termination of a Material Definitive Agreement.
On July 23, 2018, in connection with the completion of the Merger, the Amended and Restated Employee Secondment Agreement, dated as of November 13, 2017, by and among EQT, EQT RE, LLC and RMP was terminated.
Also in connection with the completion of the Merger, on July 23, 2018, all outstanding obligations in respect of principal, interest and fees under that certain Credit Agreement, dated as of December 22, 2014, by and among RMP, as parent guarantor, Rice Midstream OpCo LLC, as borrower, Wells Fargo Bank, N.A., as administrative agent, and the lenders and other parties from time to time party thereto (the Credit Agreement), were repaid and the Credit Agreement was terminated.
Item 2.01. Completion of Acquisition or Disposition of Assets.
At the effective time of the Merger (the Effective Time), (i) each common unit representing a limited partner interest in RMP (each, an RMP Common Unit) issued and outstanding immediately prior to the Effective Time was converted into the right to receive 0.3319 common units representing limited partner interests in EQM (the EQM Common Units) (the Merger Consideration), (ii) the issued and outstanding incentive distributions rights of RMP were cancelled and (iii) each outstanding award of phantom units in respect of RMP Common Units fully vested and converted into the right to receive the Merger Consideration, less applicable tax withholding, in respect of each RMP Common Unit subject thereto. The aggregate Merger Consideration consisted of approximately 34 million EQM Common Units.
The issuance of EQM Common Units in connection with the Merger was registered under the Securities Act of 1933, as amended, pursuant to EQM’s registration statement on Form S-4 (File No. 333-225018) (as amended, the Registration Statement) filed with the U.S. Securities and Exchange Commission (the SEC) and declared effective on June 20, 2018. The definitive proxy statement/prospectus, dated June 20, 2018, of EQM and RMP that forms part of the Registration Statement (the Proxy Statement/Prospectus) contains additional information about the Merger and the other transactions contemplated in connection therewith.
The foregoing description of the Merger does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which was attached as Exhibit 2.1 to RMP’s Current Report on Form 8-K filed with the SEC on April 26, 2018 and is incorporated herein by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the consummation of the Merger, RMP notified the New York Stock Exchange (the NYSE) that trading in RMP Common Units should be suspended and the listing of RMP Common Units on the NYSE should be terminated. The trading of RMP Common Units on the NYSE was suspended before the opening of the market on July 23, 2018. RMP also requested that the NYSE file with the SEC an application on Form 25 to delist and deregister the RMP Common Units under Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act). Furthermore, RMP intends to file with the SEC a Form 15 requesting that the reporting obligations of RMP under Sections 13(a) and 15(d) of the Exchange Act be suspended as soon as practicable.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
Item 3.03. Material Modification to Rights of Security Holders.
Pursuant to the Merger Agreement, on July 23, 2018, (i) each outstanding RMP Common Unit was converted into the right to receive the Merger Consideration and (ii) each outstanding award of phantom units in respect of RMP Common Units fully vested and converted into the right to receive the Merger Consideration, less applicable tax withholding, in respect of each RMP Common Unit subject thereto.
As of the Effective Time, holders of RMP Common Units immediately prior to the Effective Time ceased to have any rights as unitholders of RMP (other than the right to receive the Merger Consideration or as otherwise provided by the Merger Agreement or by law). The rights of holders of EQM Common Units are governed by EQM’s First Amended and Restated Agreement of Limited Partnership, as amended. EQM’s First Amended and Restated Agreement of Limited Partnership, which is filed as Exhibit 3.2 to the Current Report on Form 8-K of EQM filed on July 2, 2012, and the description of EQM Common Units contained under the caption “Description of EQM Common Units” in the Proxy Statement/Prospectus are incorporated herein by reference.
The information set forth in the Introductory Note, Item 2.01, Item 3.01 and Item 5.01 of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.
Item 5.01. Changes in Control of Registrant.
A change of control of RMP occurred on July 23, 2018 upon the filing of the certificate of merger with respect to the Merger with the Secretary of State of the State of Delaware, at which time Merger Sub merged with and into RMP, with RMP continuing to exist as a Delaware limited partnership.
As a result of the Merger, RMP became a wholly owned indirect subsidiary of EQM, with EQM owning all RMP Common Units.
The information set forth in the Introductory Note, Item 2.01 and Item 3.03 of this Current Report on Form 8-K is incorporated into this Item 5.01 by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the closing of the Merger, all of the officers and members of the board of directors of the RMP General Partner ceased to serve in such positions, and the following persons were elected to the following positions at the Surviving GP Entity:
|
NAME |
|
TITLE |
|
Jeremiah J. Ashcroft III |
|
President and Manager |
|
Daniel A. Greenblatt |
|
Treasurer |
|
Robert J. McNally |
|
Manager |
|
Jimmi Sue Smith |
|
Assistant Treasurer and Manager |
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On July 23, 2018, the Amended and Restated Agreement of Limited Partnership of RMP was amended and restated as set forth in Exhibit 3.1 to this Current Report on Form 8-K, and as so amended and restated became the agreement of limited partnership of the Surviving Entity. Also on July 23, 2018, the Amended and Restated Limited Liability Company Agreement of the Surviving GP Entity was amended and restated as set forth in Exhibit 3.2 to this Current Report on Form 8-K, and as so amended and restated became the limited liability company agreement of the Surviving GP Entity.
The foregoing disclosures are qualified in their entirety by reference to Exhibit 3.1 and Exhibit 3.2 of this Current Report on Form 8-K, which are incorporated into this Item 5.03 by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
|
Exhibit |
|
Description of Exhibit |
|
2.1 |
|
|
|
|
|
|
|
3.1 |
|
Second Amended and Restated Agreement of Limited Partnership of Rice Midstream Partners LP |
|
|
|
|
|
3.2 |
|
Second Amended and Restated Limited Liability Company Agreement of Rice Midstream Management LLC |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
RICE MIDSTREAM PARTNERS LP | ||
|
|
| ||
|
|
By: |
Rice Midstream Management LLC, its General Partner | |
|
|
|
| |
|
Dated: July 23, 2018 |
By: |
/s/ Jeremiah J. Ashcroft III | |
|
|
|
Name: |
Jeremiah J. Ashcroft III |
|
|
|
Title: |
President |
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
RICE MIDSTREAM PARTNERS LP
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of RICE MIDSTREAM PARTNERS LP, a Delaware limited partnership (the “Partnership”), dated as of July 23, 2018 (this “Agreement”), is entered into and executed by Rice Midstream Management LLC, a Delaware limited liability company, as General Partner, and EQM Gathering Holdings, LLC, a Delaware limited liability company, as Limited Partner.
RECITALS
WHEREAS, the Partnership was duly formed on August 5, 2014 as a Delaware limited partnership upon the filing of the Certificate of Limited Partnership of the Partnership with the Secretary of State of the State of Delaware;
WHEREAS, on December 22, 2014, (i) Rice Midstream Management LLC, as the general partner of the Partnership, and Rice Midstream Holdings LLC, as the organizational limited partner of the Partnership, entered into an Amended and Restated Agreement of Limited Partnership of the Partnership, governing the rights, duties and obligations of the limited partner and general partner of the Partnership as set forth therein (as amended, the “Current Agreement”), and (ii) the Partnership completed an initial public offering of common units representing limited partner interests in the Partnership (“Common Units”), pursuant to which, the Partnership publicly sold Common Units on the New York Stock Exchange, and thereafter, such Common Units were publicly held and traded on the New York Stock Exchange;
WHEREAS, on the date hereof, EQM Acquisition Sub, LLC (“Merger Sub”), a Delaware limited liability company and a wholly-owned subsidiary of EQM Gathering Holdings, LLC, merged with and into the Partnership (the “Merger”), pursuant to the terms of that certain Agreement and Plan of Merger, dated April 25, 2018, by and among the Partnership, Rice Midstream Management LLC, EQT Midstream Partners, LP, EQT Midstream Management, LLC, EQM GP Acquisition Sub, LLC, Merger Sub, and, solely for certain limited purposes set forth therein, EQT Corporation (the “Merger Agreement”);
WHEREAS, the Partnership was the surviving company in the Merger, and as a result of the Merger and in accordance with the terms of the Merger Agreement, the Common Units ceased to be traded on the New York Stock Exchange and EQM Gathering Holdings, LLC became the sole limited partner of the Partnership and holds 100% of the Percentage Interests as of the date hereof;
WHEREAS, pursuant to Article XIII of the Current Agreement, the Current Agreement may be amended by Rice Midstream Management LLC, in its capacity as the general partner of the Partnership, and EQM Gathering Holdings, LLC, in its capacity as the sole limited partner of the Partnership; and
WHEREAS, Rice Midstream Management LLC and EQM Gathering Holdings, LLC desire to
amend and restate the Current Agreement in its entirety, as of the date set forth above, in order to set forth their respective rights and obligations with respect to the Partnership in accordance with the terms and subject to the conditions set forth in this Agreement and the Delaware Act (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants expressed herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, Rice Midstream Management LLC and EQM Gathering Holdings, LLC hereby agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly indicated to the contrary, apply to the terms used in this Agreement.
“Certificate of Limited Partnership” means the Certificate of Limited Partnership of the Partnership filed with the Secretary of State of the State of Delaware effective on August 5, 2014, as such Certificate of Limited Partnership may be amended, supplemented or restated from time to time.
“Delaware Act” means the Delaware Revised Uniform Limited Partnership Act, 6 Del C. Section 17-101, et seq., as amended, supplemented or restated from time to time, and any successor to such statute.
“General Partner” means Rice Midstream Management LLC, a Delaware limited liability company, and its successors and permitted assigns that are admitted to the Partnership as general partner of the Partnership, in its capacity as general partner of the Partnership (except as the context otherwise requires).
“Limited Partner” means EQM Gathering Holdings, LLC, a Delaware limited liability company, and its successors and permitted assigns that are admitted to the Partnership as a limited partner of the Partnership, and any other limited partner admitted to the Partnership from time to time.
“Partner” means the General Partner or any Limited Partner.
“Percentage Interest” means, with respect to any Partner, the percentage of cash contributed by such Partner to the Partnership as a percentage of all cash contributed by all the Partners to the Partnership.
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1 Formation. The General Partner and the Limited Partner have formed the Partnership as a limited partnership pursuant to the provisions of the Delaware Act. Except as expressly provided to the contrary in this Agreement, the rights, duties (including fiduciary duties),
liabilities and obligations of the Partners and the administration, dissolution and termination of the Partnership shall be governed by the Delaware Act. This Agreement shall be deemed to have become effective (the “Effective Date”) on the date of this Agreement.
Section 2.2 Name. The name of the Partnership shall be “Rice Midstream Partners LP.” The Partnership’s business may be conducted under any other name or names as determined by the General Partner, including the name of the General Partner. The words “Limited Partnership,” “LP,” “L.P.,” “Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for the purpose of complying with the laws of any jurisdiction that so requires. The General Partner may change the name of the Partnership at any time and from time to time and shall notify the Limited Partner of such change in the next regular communication to the Limited Partner.
Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices. Unless and until changed by the General Partner, the registered agent and office of the Partnership in the State of Delaware shall be as set forth in the Certificate of Limited Partnership. The principal office of the Partnership shall be located at 625 Liberty Avenue, Suite 1700, Pittsburgh, PA 15222, or such other place as the General Partner may from time to time designate by notice to the Limited Partner. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner determines to be necessary or appropriate. The address of the General Partner shall be 625 Liberty Avenue, Suite 1700, Pittsburgh, PA 15222, or such other place as the General Partner may from time to time designate by notice to the Limited Partner.
Section 2.4 Purpose and Business. The purpose and nature of the business to be conducted by the Partnership shall be to (a) engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the General Partner, in its sole discretion, and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity, and (b) do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to the subsidiaries of the Partnership; provided, however, that the General Partner shall not cause the Partnership to engage, directly or indirectly, in any business activity that the General Partner determines would be reasonably likely to cause the Partnership to be treated as an association taxable as a corporation or otherwise taxable as an entity for federal income tax purposes. To the fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or approve, and may, in its sole discretion, decline to propose or approve, the conduct by the Partnership of any business.
Section 2.5 Powers. The Partnership shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described in Section 2.4 and for the protection and benefit of the Partnership.
Section 2.6 Term. The term of the Partnership commenced as of the effective time stated in the Certificate of Limited Partnership in accordance with the Delaware Act and shall continue in existence until the dissolution of the Partnership in accordance with the provisions of
Article VIII. The existence of the Partnership as a separate legal entity shall continue until the cancellation of the Certificate of Limited Partnership as provided in the Delaware Act.
Section 2.7 Partnership Interests. Effective as of the Effective Date, the General Partner shall have a 0.00% non-economic general partner Percentage Interest in the Partnership and the Limited Partner shall have a 100% limited partner Percentage Interest in the Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS
As consideration for the issuance of partnership interests described in Section 2.7, the Limited Partner has made a capital contribution to the Partnership in exchange for its limited partner Percentage Interest.
ARTICLE IV
CAPITAL ACCOUNTS; ALLOCATIONS
Section 4.1 Capital Accounts. The Partnership shall maintain for each Partner a separate capital account in accordance with the regulations issued pursuant to Section 704 of the Internal Revenue Code of 1986, as amended (the “Code”), and as determined by the General Partner as consistent therewith.
Section 4.2 Allocations. For federal income tax purposes, each item of income, gain, loss, deduction and credit of the Partnership shall be allocated among the Limited Partners in accordance with their Percentage Interests, except that the General Partner shall have the authority to make such other allocations as are necessary and appropriate to comply with Section 704 of the Code and the regulations issued pursuant thereto.
Section 4.3 Distributions. From time to time, but not less often than quarterly, the General Partner shall review the Partnership’s accounts to determine whether distributions are appropriate. The General Partner may make such cash distributions as it, in its sole discretion, may determine without being limited to current or accumulated income or gains from any Partnership funds, including, without limitation, Partnership revenues, capital contributions or borrowed funds; provided, however, that no such distribution shall be made if, after giving effect thereto, the liabilities of the Partnership exceed the fair market value of the assets of the Partnership. In its sole discretion, the General Partner may, subject to the foregoing proviso, also distribute to the Partners other Partnership property, or other securities of the Partnership or other entities. All distributions by the General Partner shall be made in accordance with the Percentage Interests of the Partners.
ARTICLE V
MANAGEMENT AND OPERATIONS OF BUSINESS
Except as otherwise expressly provided in this Agreement, all powers to control and manage the business and affairs of the Partnership shall be vested exclusively in the General Partner; the Limited Partner shall not have any power to control or manage the Partnership.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF LIMITED PARTNER
The Limited Partner shall have no liability under this Agreement except as provided in Article III.
ARTICLE VII
INDEMNIFICATION
Section 7.1 The General Partner and all officers, directors, agents and employees of the General Partner and all officers of the Partnership, if any, shall be indemnified as of right to the fullest extent not prohibited by law in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the Partnership or otherwise) arising out of their service to the Partnership or to another enterprise at the request of the Partnership; provided, however, that the Partnership shall not indemnify any indemnified person in connection with a proceeding (or part thereof) initiated by such person (other than a proceeding to enforce such person’s rights to indemnification under this Article) unless such proceeding (or part thereof) was authorized by the General Partner.
Section 7.2 Employees of the Partnership who are not entitled to indemnification under Section 7.1 hereof shall be indemnified as of right in connection with any actual or threatened action, suit or proceeding, civil, criminal, administrative, investigative or other (whether brought by or in the right of the Partnership or otherwise) arising out of their service to the Partnership or to another enterprise at the request of the Partnership if, as determined by the Partnership in its sole discretion, such employee acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Partnership and, with respect to any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful; provided, however, that the Partnership shall not indemnify an employee in connection with a proceeding (or part thereof) initiated by such employee (other than a proceeding to enforce such person’s rights to indemnification under this Article) unless such proceeding (or part thereof) was authorized by the General Partner.
Section 7.3 The Partnership may indemnify agents of the Partnership who are not entitled to indemnification under Sections 7.1 or 7.2 hereof with such scope and effect as determined by the Partnership.
Section 7.4 As soon as practicable after receipt by any person entitled to indemnification hereunder of actual knowledge of any action, suit or proceeding, such indemnified person shall notify the Partnership thereof if a claim for indemnification in respect thereof may be or is being made by such indemnified person against the Partnership under this Article. With respect to any such action, suit or proceeding, the Partnership will be entitled to participate therein at its own expense and may assume the defense thereof. After the Partnership notifies the indemnified person of its election to so assume the defense, the Partnership will not be liable to the indemnified person under this Article for any legal or other expenses subsequently incurred by the indemnified person in connection with the defense. The Partnership shall not be obligated to indemnify an indemnified person under this Article for any amounts paid in settlement of any action or claim effected without its written consent.
Section 7.5 The Partnership may purchase and maintain insurance to protect itself and any person against any liability asserted against and incurred by him or her in respect of such service, whether or not the Partnership would have the power to indemnify him or her against such liability by law or under the provisions of this Article. The provisions of this Article shall be applicable to persons who have ceased to be a person covered by this Article and shall inure to the benefit of the heirs, executors, and administrators of persons entitled to indemnity hereunder.
Section 7.6 Indemnification under this Article shall include the right to be paid expenses incurred in advance of the final disposition of any action, suit or proceeding for which indemnification is provided, upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it ultimately shall be determined that he or she is not entitled to be indemnified by the Partnership; provided, however, that the indemnified person shall reimburse the Partnership for any amounts paid by the Partnership as indemnification of expenses to the extent the indemnified person receives payment for the same expenses from any insurance carrier or from another party. The indemnification rights granted herein are not intended to be exclusive of any other rights to which those seeking indemnification may be entitled and the Partnership may enter into contractual agreements with any individual to provide such individual with indemnification rights as set forth in such agreement or agreements, which rights shall be in addition to the rights set forth in this section.
Section 7.7 The provisions of this Article shall be applicable to actions, suits or proceedings commenced after the adoption hereof, whether arising from acts or omissions occurring before or after the adoption hereof.
Section 7.8 Any indemnification under this Article VII shall be satisfied solely out of the assets of the Partnership, it being agreed that the General Partner shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification. In no event may an indemnified person subject the Limited Partners to personal liability by reason of these indemnification provisions.
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
The Partnership shall be dissolved, and its affairs shall be wound up, upon: (1) the election of the General Partner to do so, if approved by Partners representing a majority of the limited partner interests of the Partnership; (2) the sale, exchange, or other disposition of all or substantially all of the Partnership assets and properties and Partnership subsidiaries; (3) the entry of a decree of judicial dissolution of the Partnership; or (4) the withdrawal or removal of the General Partner or any other event that results in its ceasing to be the General Partner.
ARTICLE IX
AMENDMENT OF PARTNERSHIP AGREEMENT
The General Partner may amend any provision of this Agreement without the consent of the Limited Partner and may execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Addresses and Notices. Any notice to the Partnership, the General Partner or the Limited Partner shall be deemed given if received by it in writing at the principal office of the Partnership designated pursuant to Section 2.3.
Section 10.2 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
Section 10.3 Integration. This Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
Section 10.4 Invalidity of Provisions. If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.
Section 10.5 Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law.
Section 10.6 Counterparts. This Agreement 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.
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement has been duly executed by the General Partner and the Limited Partner as of the date first above written.
|
|
GENERAL PARTNER: | |
|
|
| |
|
|
RICE MIDSTREAM MANAGEMENT LLC | |
|
|
| |
|
|
| |
|
|
By: |
/s/ Jeremiah J. Ashcroft III |
|
|
|
Name: Jeremiah J. Ashcroft III |
|
|
|
Title: President |
|
|
| |
|
|
| |
|
|
LIMITED PARTNER: | |
|
|
| |
|
|
EQM GATHERING HOLDINGS, LLC | |
|
|
| |
|
|
| |
|
|
By: |
/s/ Jeremiah J. Ashcroft III |
|
|
|
Name: Jeremiah J. Ashcroft III |
|
|
|
Title: President |
[Signature Page to Second Amended and Restated Agreement of Limited Partnership of Rice Midstream Partners LP]
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
RICE MIDSTREAM MANAGEMENT LLC
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Operating Agreement”), effective as of July 23, 2018, is entered into by and between EQM Gathering Holdings, LLC, as the sole member (the “Member”), and Rice Midstream Management LLC, a Delaware limited liability company (the “Company”).
RECITALS
WHEREAS, the Company was duly formed on August 5, 2014 as a Delaware limited liability company upon the filing of the Certificate of Formation of the Company with the Secretary of State of the State of Delaware;
WHEREAS, on July 30, 2014, Rice Midstream Holdings LLC, a Delaware limited liability company (“RMH”), entered into a Limited Liability Company Agreement of the Company in its capacity as the sole initial member of the Company;
WHEREAS, on December 22, 2014, RMH entered an Amended and Restated Limited Liability Company Agreement of the Company (the “Current Operating Agreement”);
WHEREAS, on the date hereof, EQM GP Acquisition Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Member (“GP Merger Sub”), merged with and into the Company (the “Merger”), pursuant to the terms of that certain Agreement and Plan of Merger, dated April 25, 2018, by and among the Company, Rice Midstream Partners LP, EQT Midstream Partners, LP, EQT Midstream Management, LLC, EQM Acquisition Sub, LLC, Merger Sub, and, solely for certain limited purposes set forth therein, EQT Corporation;
WHEREAS, the Company was the surviving company in the Merger, and as a result of the Merger, RMH ceased to be a member of the Company and the Member became the sole member of the Company;
WHEREAS, pursuant to Section 3.1 of the Current Operating Agreement, the Current Operating Agreement may be amended in the sole discretion of the Member; and
WHEREAS, the Member and the Company desire to amend and restate the Current Operating Agreement in its entirety, as of the date set forth above, in order to set forth their respective rights and obligations with respect to the Company in accordance with the terms and subject to the conditions set forth in this Operating Agreement and the Delaware Limited Liability Company Act, 6 Del. C. Chapter 18 et seq., as the same may be amended from time to time (the “Act”).
NOW, THEREFORE, in consideration of the mutual covenants expressed herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the Company and the Member hereby agree as follows:
ARTICLE I
GENERAL PROVISIONS
Section 1.01 The name of the Company is Rice Midstream Management LLC.
Section 1.02 The principal place of business of the Company shall be located at 625 Liberty Avenue, Suite 1700, Pittsburgh, PA 15222. The Company may also have offices at such other places as the Board of Managers may from time to time determine or the business of the Company may require.
Section 1.03 The Company seal shall have inscribed thereon the name of the Company, the year of its formation, and the words “Company Seal, Delaware”.
ARTICLE II
BOARD OF MANAGERS
Section 2.01 The business and property of the Company shall be managed and controlled by a Board of Managers (the “Board of Managers”, and each person serving thereon is referred to herein as a “Manager”) of not less than two nor more than seven persons. The Managers of the Company need not be residents of the State of Delaware and it is not necessary that the Managers be members in the Company. The Managers shall be elected at the annual meeting of members and shall hold their offices until their successors are elected and qualified.
Section 2.02 A majority of the Managers then serving on the Board of Managers shall constitute a quorum for the transaction of business, and the act of a majority of Managers present at a meeting at
which there is a quorum shall be the act of the Board of Managers. No Manager shall vote on a question in which he or she is interested otherwise than as a member or employee, except the election of officers, or be present at a meeting of the Board of Managers while the same is being considered; but, if his or her retirement from the Board of Managers in such case reduces the number present below a quorum, the question may nevertheless be decided by those who remain.
Section 2.03 The Board of Managers shall have general management of the business of the Company and, in addition to the powers and authority by this Operating Agreement expressly conferred upon them, may exercise all such powers and do all such acts and things as may be exercised or done by the Company, but subject, nevertheless, to the provisions of the Act, of the Certificate of Formation and of this Operating Agreement, and to any regulations from time to time made by the members, provided that no regulation so made shall invalidate any prior act of the Managers which would have been valid if such regulation had not been made.
Section 2.04 The Managers shall not receive any stated salary for their services as managers, but by resolution of the Board of Managers a fixed fee and expense of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any Manager from serving the Company in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.
Section 2.05 The Board of Managers may from time to time declare distributions of so much of the net profits of the Company as they deem prudent.
Section 2.06 Without prejudice to the general powers conferred by statute, by the Certificate of Formation and by this Operating Agreement, it is hereby expressly declared that the Board of Managers shall have the following powers:
1. To purchase or otherwise acquire for the Company any property, rights or privileges that the Company is authorized to acquire, at such price and on such terms and conditions, and for such consideration as they think fit.
2. At their discretion to pay for any property or rights acquired by the Company, either wholly or partially, in money or in other assets.
3. To appoint, subject to the provisions of law, such officers and agents of the Company as they may deem proper and also an Executive Committee from their own number, and may prescribe the duties and compensation of such. The officers and agents so appointed shall hold their places during the pleasure of the Board of Managers and, if required by the Board of Managers, shall give bonds payable to the Company in such penalties and with such conditions and security as the Board of Managers may approve.
4. To confer by resolution upon any officer of the Company the right to choose, remove or suspend such subordinate officers, agents or factors.
5. To appoint any person or persons to accept and hold in trust for the Company any property belonging to the Company, or in which it is interested, or for any other purpose, and to do and execute all such duties and things as may be requisite in relation to any such trust.
6. To aid, facilitate and assist in any manner, in the name and on behalf of the Company, in the performance of any lawful act or activity by the Company, and for those purposes to use the membership interests and bonds of the Company, or either of them or any part thereof, to pay, refund, guarantee or otherwise secure any indebtedness incurred in such act or activity, and to guarantee the bonds, debentures, indebtedness, dividends, contracts or other obligations of firms or other corporations.
7. To borrow money and to make and issue notes, bonds and other negotiable and transferable instruments, execute mortgages, deeds of trust and trust agreements, and to do any other acts necessary to effectuate the same.
8. To determine who shall be authorized on the Company’s behalf to make and sign bills, notes, receipts, acceptances, endorsements, checks, releases, contracts and other instruments.
9. To determine who shall be entitled to vote in the name and on behalf of the Company upon, or to assign and transfer, any shares of stock, bonds or other securities of other corporations held by the Company.
10. From time to time to provide for the management of the affairs of the Company, at home or abroad, in such manner as they think fit and, in particular, from time to time to delegate any of the powers of the Board of Managers to any committee, officer or agent and to appoint any persons to be the agents of the Company with such powers (including the power to delegate) and upon such terms as may be thought fit.
11. To call special meetings of the members for any purpose or purposes.
12. From time to time to make and change rules and regulations, not inconsistent with this Operating Agreement, for the management of the Company’s affairs.
13. To increase or decrease the number of members of the Board of Managers from time to time and to fill vacancies in the Board of Managers, including such
vacancies as may be created by action of the Board of Managers increasing the number of members of the Board of Managers from time to time.
ARTICLE III
MEETINGS
Section 3.01 The Board of Managers shall hold meetings at such times and places and upon such notice as it may prescribe or determine.
Section 3.02 Regular meetings of the Board of Managers shall be held without notice on such dates as may be fixed from time to time by the Managers.
Section 3.03 Special meetings of the Board of Managers shall be held whenever called by the Chairman (or by the President if a Chairman has not been elected) or by a majority of the Managers.
Section 3.04 The Secretary shall give notice of any special meeting by oral, telegraphic or written notice duly served or sent or mailed to each Manager not less than twenty-four (24) hours before the meeting.
Section 3.05 Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 3.06 At any meeting at which every Manager shall be present, even though without any notice, any business may be transacted.
Section 3.07 Any action of a majority of the Board of Managers, although not a regularly called meeting, and the record thereof, if assented to in writing by all the other members of the Board of Managers, shall always be as valid and effective in all respects as if passed by the Board of Managers in regular meeting assembled.
ARTICLE IV
OFFICERS
Section 4.01 After the annual meeting of the members, the newly elected Managers shall meet as soon as possible after their election at any of the offices of the Company and elect a President, such number of Vice Presidents with such additional titles as the Managers may deem requisite, a Secretary and
a Treasurer. They may also choose a Chairman and a Vice Chairman and elect or appoint such Assistant Secretaries or Assistant Treasurers as they may deem requisite.
CHAIRMAN
Section 4.02 The Chairman, if one shall be elected, is entitled to be informed of all the affairs of the Company, and every officer and employee of the Company shall be bound forthwith to disclose to the Chairman all information relating to the affairs of the Company within his or her knowledge or jurisdiction upon the oral or written request of the Chairman, and the Chairman shall preside at all meetings of members of the Board of Managers and of the Executive Committee, if such committee be created or appointed.
VICE CHAIRMAN
Section 4.03 The Vice Chairman, if one shall be elected, shall, at the request of the Chairman or in his or her absence or disability, have and exercise all the powers and authority of the Chairman, in addition to such powers and duties as are conferred by this Operating Agreement.
PRESIDENT
Section 4.04 The President shall perform all duties incident to the office of a President of a Company and such other duties as from time to time may be assigned to him by the Board of Managers. In addition to any specific powers conferred upon the President by this Operating Agreement, he or she shall have and exercise such further powers and duties as from time to time may be conferred upon or assigned to him or her by the Board of Managers.
The President may sign and execute in the name of the Company all authorized deeds, mortgages, bonds, contracts or other instruments, except in cases in which the signing and execution thereof shall have been expressly delegated to some other officer or agent of the Company.
SECRETARY
Section 4.05 The Secretary shall keep the minutes of the meetings of the members and the Board of Managers in books provided for the purpose; shall see that all notices are duly given in accordance with the provisions of this Operating Agreement or as required by law; shall be custodian of the records and of
the Company seal or seals of the Company; shall see that the corporate seal is affixed to all documents, the execution of which, on behalf of the Company, under its seal, is duly authorized and when so affixed may attest the same; and in general, shall perform all duties incident to the office of a secretary of a Company and such other duties as from time to time may be assigned by the Board of Managers or the President.
Section 4.06 The Board of Managers may elect one or more Assistant Secretaries who shall perform the duties of the Secretary in the event of the Secretary’s absence or inability to act, as well as such other duties as the Board of Managers, the President, or the Secretary may from time to time delegate.
TREASURER
Section 4.07 The Treasurer shall have charge of all moneys and securities belonging to the Company and shall keep accurate books of account, including accounts or receipts and disbursements, subject to the direction and control of the Board of Managers. The Treasurer shall deposit all moneys received by him in the name and to the credit of the Company in such bank or other place or places of deposit as the Board of Managers shall designate; and for that purpose the Treasurer shall have power to endorse for collection or payment all checks or other negotiable instruments drawn payable to the Treasurer’s order or to the order of the Company. The Treasurer shall disburse the moneys of the Company upon properly drawn checks which shall bear the signature of the Treasurer or of any Assistant Treasurer or such other officer or employee of the Company as the President may designate. All checks shall be covered by vouchers which shall be certified by the Controller or the General Auditor or the Auditor of Disbursements or such other employee of the Company as the Treasurer may designate. The Treasurer may create, from time to time, such special imprest funds as may, in the Treasurer’s discretion, be deemed advisable and necessary, and may open accounts with such bank or banks as may be deemed advisable for the deposit therein of such special imprest funds, and may authorize disbursements therefrom by checks drawn against such accounts signed by the Treasurer, any Assistant Treasurer, or such other employee of the Company as may be designated by the Treasurer from time to time. The Treasurer shall perform such other duties as may be assigned from time to time by the Board of Managers, the President, or a Senior Vice President.
Section 4.08 No notes or similar obligations shall be made except jointly by the President and the Treasurer, except as otherwise authorized by the Board of Managers.
Section 4.09 The Board of Managers may elect one or more Assistant Treasurers who shall perform the duties of the Treasurer in the event of the Treasurer’s absence or inability to act, as well as such other duties as the Board of Managers, the President, a Vice President or the Treasurer may from time to time designate.
VICE PRESIDENTS
Section 4.10 Vice Presidents shall perform such duties as may be assigned to them from time to time by the Board of Managers or the President, as their positions are established or changed.
GENERAL
Section 4.11 Any of the offices of Vice President, Secretary and Treasurer or Assistant Secretary and Assistant Treasurer may be combined in one person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument be required by law, by the Certificate of Formation, or by this Operating Agreement to be executed, acknowledged, or verified by any two or more officers.
Section 4.12 In case such officers or any of them may not be elected at the meeting immediately following the annual members’ meeting, they may be elected or chosen at any subsequent meeting of the Managers.
Section 4.13 The Managers shall have power to appoint a general manager and give him such powers as they may deem necessary or proper.
ARTICLE V
MEMBERSHIP INTERESTS
Section 5.01 The name and equity ownership percentage of each member of the Company is set forth on Exhibit A to this Operating Agreement. Persons or entities may be admitted as members of the Company and issued membership interests only upon the prior written approval of the Member. The Board of Managers may cause to be issued to any person appearing on the books of the Company to be the owner
of any membership interests in the Company a certificate therefor, under the Company seal, to be signed by the President or one of the Vice Presidents and countersigned by the Secretary or one of the Assistant Secretaries or by the Treasurer or one of the Assistant Treasurers.
TRANSFERS OF MEMBERSHIP INTERESTS
Section 5.02 If, at any time after which this Operating Agreement is originally executed, membership interests are held by more than one member, no member may transfer any membership interest (or any right associated with any membership interest, including any voting rights under Article VI hereof) in the Company without the prior written consent of the other members.
Section 5.03 Transfers of membership interests shall be made on the books of the Company only by the person named in the membership certificate or by an attorney in fact, lawfully constituted in writing, and upon surrender of such membership certificate.
Section 5.04 The transfer books may be closed by direction of the Chairman (or by the President if a Chairman has not been elected) or of a majority of the Managers for a reasonable time prior to the declaration or payment of a distribution or the holding of any special or annual meeting of the members or for any other purpose.
ARTICLE VI
MEMBERS
Section 6.01 An annual meeting of members (or of the sole member, if all membership interests are held by one party) shall be held in each calendar year at such time as the Board of Managers shall determine. At each such annual meeting, a Board of Managers of the Company shall be elected and such business transacted as may properly be brought before the meeting.
Section 6.02 The annual and special meetings of the members shall be held at any of the offices of the Company, but notice shall first be given to the members entitled by law to receive notice thereof of the place, day and hour at which the meeting is to be held.
Section 6.03 When membership interests are held by more than one member, holders of a majority of the membership interests having the right to vote, present in person or represented by proxy,
shall be requisite and shall constitute a quorum at all meetings of the members for the transaction of business. If, however, such a majority shall not be present or represented at any meeting of the members, the members present in person or represented by proxy and having the right to vote shall have the power to adjourn the meeting from time to time without notice other than the announcement at the meeting until the requisite amount of membership interests shall be present.
Section 6.04 Any meeting at which a quorum of those having the right to vote is present may also be adjourned in like manner for such time or upon such call as may be determined by vote.
Section 6.05 At any adjourned meeting at which a quorum of those having the right to vote shall attend, any business may be transacted which might have been transacted if the meeting had been held as originally called.
Section 6.06 A list of the members having the right to vote showing the number of membership interests and votes to which each is entitled shall for at least ten (10) days before every meeting of the members be available for membership inspection as required by law.
Section 6.07 Written notice of the annual meeting shall be mailed to each member entitled by law to receive notice thereof at such address as appears on the membership book of the Company at least ten (10) days prior to the date of the meeting.
Section 6.08 Special meetings of the members having the right to vote may be called by the Chairman or, if a Chairman has not been elected, by the President and shall be called by the Chairman, the President or the Secretary at the request in writing of a majority of the Board of Managers. Such request shall state the purpose or purposes of the proposed meetings.
Section 6.09 Business transacted at all special meetings shall be confined to the objects stated in the call and matters pertaining thereto.
Section 6.10 Written notice of a special meeting of members having the right to vote stating the time, place and object thereof shall be mailed, postage prepaid, at least ten (10) days before such meeting to each member entitled by law to receive notice thereof at such address as appears on the books of the Company.
Section 6.11 Any notice required to be given by this Operating Agreement to managers or to members entitled by law to receive such notice for any regular or special meeting may be waived by such manager or member by writing filed with the Secretary of the Company either before or after the holding of the meeting.
ARTICLE VII
AMENDMENTS
Section 7.01 This Operating Agreement may be amended or modified from time to time only by a written instrument executed by a majority of the members or, unless otherwise provided in the Certificate of Formation, by the vote of a majority in number of the entire Board of Managers.
ARTICLE VIII
DISSOLUTION
Section 8.01 The Company shall be dissolved and its affairs wound up upon the first to occur of the following, and upon no other event or occurrence: (a) an election to dissolve the Company made by a majority of the members; (b) the sale, exchange, involuntary conversion, or other disposition or transfer of all or substantially all the assets of the Company; (c) at any time there are no members of the Company unless the Company is continued in accordance with the Act; or (d) the entry of a decree of judicial dissolution under § 18-802 of the Act.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has executed this Operating Agreement as of the date first written above.
|
|
SOLE MEMBER: | ||
|
|
| ||
|
|
|
EQM GATHERING HOLDINGS, LLC | |
|
|
| ||
|
|
|
| |
|
|
|
By: |
/s/ Jeremiah J. Ashcroft III |
|
|
|
Name: Jeremiah J. Ashcroft III | |
|
|
|
Title: President | |
|
|
|
| |
|
|
|
| |
|
|
COMPANY: | ||
|
|
| ||
|
|
|
RICE MIDSTREAM MANAGEMENT LLC | |
|
|
| ||
|
|
|
| |
|
|
|
By: |
/s/ Jeremiah J. Ashcroft III |
|
|
|
Name: Jeremiah J. Ashcroft III | |
|
|
|
Title: President | |
[Signature Page to Second Amended and Restated Limited Liability Company Agreement of Rice Midstream Management LLC]
EXHIBIT A
SCHEDULE OF OWNERSHIP
|
Member’s Name and Address |
|
Membership Interest |
|
|
|
|
|
|
|
EQM Gathering Holdings, LLC
625 Liberty Avenue |
|
100 |
% |