Exhibit 3.3
FIRST AMENDMENT
TO
CONTRIBUTION AND EXCHANGE AGREEMENT
TO
CONTRIBUTION AND EXCHANGE AGREEMENT
THIS FIRST AMENDMENT (“Amendment”) to that certain Contribution and Exchange Agreement dated August 30, 2010 (“Original Agreement”) is entered into as of April 11, 2011 by and among VOC Brazos Energy Partners, L.P., a Texas limited partnership (the “Company”), VOC Kansas Energy Partners, LLC, a Kansas limited liability company (“KEP”), VAP-III, LLC, a Kansas limited liability company (“VAP-III), Vess Texas Acquisition Group, LLC, a Texas limited liability company (“VTAG”), Vess Texas Partners, LLC, a Texas limited liability company (“VTP”) and those other Company Partners who are a party to the Original Agreement.
WHEREAS, Section 2 of the Original Agreement sets forth an agreed upon formula for determining the number of Units in the Company to be issued to the Partners as the Effective Date; and
WHEREAS, the Existing Partners and New Partners now agree as to the number of Units to be issued pursuant to the formula set forth in the Original Agreement; and
WHEREAS, the Partners wish to set forth certain other amendments to the Original Agreement.
NOW, THEREFORE, the parties hereto do agree as follows:
Unless defined elsewhere in this Amendment, capitalized terms shall have the meaning set forth in the Original Agreement or VOC Brazos LP Agreement, as the case may be:
1. Amendment of Section 1. Subsection 1(d) of the Original Agreement, mandating the issuance of Unit certificates reflecting the outstanding Partnership Interests of the Company as of the Effective Date, is hereby superseded in its entirety with the following new subsection 1(d):
(d) At the General Partner’s election, consistent with the terms of the VOC Brazos LP Agreement, the Company may deliver to each such New Partner and each Existing Partner certificates representing Limited Partner and General Partner Units, as the case may be, reflecting their Partnership Interest as of the Effective Date, in genuine and unaltered form.
2. Restatement of Section 2. Section 2 of the Original Agreement is hereby superseded in its entirety with the following new Section 2:
2.Units to be Issued. At Closing but effective as of the Effective Date, the Company will issue and deliver new General Partner
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Units to VTP, and new Limited Partner Units to VAP-III, VTAG and to each New Partner, in accordance with Schedule 1 attached to this Amendment. At Closing, and in accordance with Section 4.01(A) of the VOC Brazos LP Agreement, the attached Schedule 1 shall supersede, amend and replace Exhibit A of the VOC Brazos LP Agreement.
3. Amendment of Certain Definitions in Section 12.The following definitions in Section 12 of the Original Agreement are hereby superseded in their entirety with the following definitions:
“Closing” means the occurrence of an IPO; provided, however, that if an IPO has not occurred prior to September 1, 2011, this Agreement shall terminate at 12:01 a.m. on September 1, 2011, as provided in Section 14, unless extended by written agreement of a Majority of the Parties. The Closing shall take place at the offices of the Company upon reasonable advance notice given by the Company to the parties.
“IPO” means the closing of the initial public offering registration filed by the Company and VOC Energy Trust, as co-registrants, with the Securities and Exchange Commission on Form S-1 (SEC File No. 333-171474).
4. Amendment of Section 15. Section 15 of the Original Agreement is hereby superseded in its entirety with the following new Section 15:
15.Amendment; Termination. Neither this Agreement nor any provisions hereof shall be amended or modified except by an instrument in writing signed by a Majority of the Parties; provided, however, that no amendment or modification shall materially increase the out-of-pocket financial obligation of a party without the consent of that specific party. This Agreement shall terminate (a) at 12:01 a.m. on September 1, 2011, if an IPO has not occurred prior to such time, unless such date is extended as provided in accordance with this Agreement, or (b) upon the written consent of a Majority of the Parties, whichever first occurs.
5. Ratification of Original Agreement. Except as amended herein, each of the parties does hereby ratify, confirm and restate their agreement to be bound by the terms of the Original Agreement.
6. Successors and Assigns. Except as otherwise provided herein, this Amendment shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
7. Entire Agreement. This Amendment constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes in its entirety all prior
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agreements and understandings among the parties with respect thereto. The parties acknowledge and agree that they will make no claims at any time or place that this Amendment has been orally altered or modified in any respect whatsoever.
8. Governing Law. This Amendment shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Amendment shall be governed by, the internal laws of the State of Delaware, without giving effect to provisions thereof regarding conflict of laws.
9. Counterparts. This Amendment may be executed simultaneously in two or more counterparts, including counterparts bearing a facsimile or PDF signature copy, each of which shall be deemed an original but all of which together shall constitute one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other. The parties hereto intend that a facsimile or PDF signature copy on this Amendment shall have the same force and effect as an original signature.
10. Construction. The language used herein shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party hereto.
[Signature Pages Follow]
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COUNTERPART SIGNATURE PAGE
FIRST AMENDMENT TO
CONTRIBUTION AND EXCHANGE AGREEMENT
/s/ J. Michael Vess | ||
VOC Kansas Energy Partners, LLC | ||
/s/ J. Michael Vess | ||
of Vess Holding Corporation, the Manager of VOC Kansas | ||
Energy Partners, LLC | ||
VOC Brazos Energy Partners, L.P. | ||
/s/ J. Michael Vess | ||
of Vess Holding Corporation, Manager of Vess Texas | ||
Partners, L.L.C., the General Partner of VOC Brazos | ||
Energy Partners, L.P. | ||
VAP-II, LLC | ||
/s/ J. Michael Vess | ||
VAP-III, LLC | ||
/s/ J. Michael Vess | ||
of Vess Holding Corporation, Manager of | ||
VAP-III, LLC |
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COUNTERPART SIGNATURE PAGE
FIRST AMENDMENT TO
CONTRIBUTION AND EXCHANGE AGREEMENT
VAP-IV, LLC | ||||
/s/ J. Michael Vess | ||||
of Vess Holding Corporation, Manager of | ||||
VAP-IV, LLC | ||||
Vess Texas Partners, L.L.C. | Vess Texas Acquisition Group, LLC | |||
/s/ J. Michael Vess | /s/ J. Michael Vess | |||
Representative of Vess Holding | ||||
Corporation, the Manager of Vess | ||||
Texas Partners, L.L.C. | ||||
Vess Exploration Company LLC | Vess Energy Corporation | |||
/s/ J. M. Vess | /s/ J. M. Vess | |||
Vess Energy Group, LLC | Vess Resources, LLC | |||
/s/ J. M. Vess | /s/ J. M. Vess | |||
Vesoco LLC | Vesoco Latex, LLC | |||
/s/ J. M. Vess | /s/ J. M. Vess |
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COUNTERPART SIGNATURE PAGE
FIRST AMENDMENT TO
CONTRIBUTION AND EXCHANGE AGREEMENT
Rhonda R. Vess Inc. | Vess Oil Company LLC | |||
/s/ Rhonda R. Vess | /s/ J. Michael Vess | |||
Vess Texas, LLC | ||||
/s/ J. Michael Vess |
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COUNTERPART SIGNATURE PAGE
FIRST AMENDMENT TO
CONTRIBUTION AND EXCHANGE AGREEMENT
/s/ Will G. Price III |
By Will G. Price III |
Price Properties, Inc. |
/s/ Will G. Price III |
By Will G. Price, III, as President |
Price Production, Inc. |
/s/ Kristin Utz Price |
By Kristin Utz Price, as President |
Price Energy Group, LP |
/s/ Kristin Utz Price |
By Kristin Utz Price, as Manager of Kristin, |
LLC, the General Partner |
WGP, LC |
/s/ Kristin Utz Price |
By Kristin Utz Price, as Manager |
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COUNTERPART SIGNATURE PAGE
FIRST AMENDMENT TO
CONTRIBUTION AND EXCHANGE AGREEMENT
PEG, LC |
/s/ Kristin Utz Price |
By Kristin Utz Price, as Manager |
TBIRD, LC |
/s/ Kristin Utz Price |
By Kristin Utz Price, as Manager |
Spivey Acquisitions, LC |
/s/ Kristin Utz Price |
By Kristin Utz Price, as Manager |
Price TX, LC |
/s/ Kristin Utz Price |
By Kristin Utz Price, as Manager |
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COUNTERPART SIGNATURE PAGE
FIRST AMENDMENT TO
CONTRIBUTION AND EXCHANGE AGREEMENT
/s/ L.D. Davis |
By L.D. Davis |
Davis Energy, LLC |
/s/ L.D. Davis |
By L.D. Davis, as Manager |
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COUNTERPART SIGNATURE PAGE
FIRST AMENDMENT TO
CONTRIBUTION AND EXCHANGE AGREEMENT
/s/ C.J. Lett, III |
By C.J. Lett, III |
Bison Energy, LLC |
/s/ C.J. Lett, III |
By C.J. Lett III, Managing Member |
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Schedule 1
Revised Exhibit A
to
VOC Brazos Energy Partners, L.P. Agreement
to
VOC Brazos Energy Partners, L.P. Agreement
Partner | General Partner Units | Limited Partner Units | ||||||
Vess Texas Partners, LLC | 8,250 | |||||||
Vess Texas Acquisition Group, LLC | 171,095 | |||||||
VAP-III, LLC | 233,218 | |||||||
Vess Exploration Co LLC | 18,336 | |||||||
Vess Energy Corporation | 58,889 | |||||||
Vess Energy Group, L.L.C. | 3,055 | |||||||
Vess Resources, LLC | 10,478 | |||||||
Vesoco, L.L.C. | 20,744 | |||||||
Vesoco Latex LLC | 12 | |||||||
Rhonda R. Vess Inc. | 7,726 | |||||||
Vess Texas LLC | 7,748 | |||||||
Vess Oil Company, L.L.C. | 25,477 | |||||||
VAP-II, LLC | 52,057 | |||||||
VAP-IV, LLC | 29,035 | |||||||
L.D. Davis | 95,168 | |||||||
Davis Energy, LLC | 136,554 | |||||||
Will G. Price, III | 0.0000 | |||||||
Price Properties, Inc. | 6,995 | |||||||
Price Production, Inc. | 13,747 | |||||||
Price Energy Group, LP | 4,452 | |||||||
WGP, LC | 17,932 | |||||||
PEG, LC | 6,755 | |||||||
Tbird LC | 12,548 | |||||||
Spivey Acquisitions, LC | 3,465 | |||||||
Price TX LC | 6,457 | |||||||
Bison Energy LLC | 49,806 | |||||||
Total | 8,250 | 991,750 |