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EX-3.2 - PVR PARTNERS, L. P. | v178525_ex3-2.htm |
EX-3.1 - PVR PARTNERS, L. P. | v178525_ex3-1.htm |
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: March 25, 2010
(Date of
Earliest Event Reported)
PENN
VIRGINIA RESOURCE PARTNERS, L.P.
(Exact
Name of Registrant as Specified in its Charter)
Delaware
|
1-16735
|
23-3087517
|
(State
or Other Jurisdiction of
Incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
Three
Radnor Corporate Center, Suite 300
|
100
Matsonford Road, Radnor, Pennsylvania 19087
|
(Address
of Principal Executive Offices)
(Zip
Code)
|
Registrant’s
telephone number, including area code: (610) 687-8900
Not
Applicable
(Former
name or former address, if changed since last report)
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 (see General Instruction A.2. below):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
8.01 Other Events.
On March
25, 2010, Penn Virginia GP Holdings, L.P. (“PVG”) announced that Penn Virginia
Resource LP Corp., an indirect wholly owned subsidiary of Penn Virginia
Corporation, intends to offer, subject to market and other conditions,
10,000,000 common units representing limited partner interests in an
underwritten public offering (the “PVG Offering”). The board of
directors of the general partner of Penn Virginia Resource Partners, L.P. (the
“Partnership”) approved the
amendments to the Partnership’s agreement of limited partnership and the board
of directors of the general partner of PVG approved the amendments to the
general partner’s limited liability company agreement described below and
authorized the appropriate officers of the general partner of PVG and the
general partner of the Partnership to execute the amendments immediately prior
to the closing of the PVG Offering.
Amendment
No. 2 to Third Amended and Restated Limited Partnership Agreement
Immediately
prior to the closing of the PVG Offering, Penn Virginia Resource GP, LLC, a
Delaware limited liability company and the Partnership’s general partner (the
“General Partner”), will enter into Amendment No. 2 (“Amendment No. 2”) to the
Third Amended and Restated Agreement of Limited Partnership of the Partnership
(as amended, the “Partnership Agreement”), which will then become
effective. Pursuant to the Partnership Agreement, the limited
partners of the Partnership (the “Limited Partners”) other than the General
Partner and those Limited Partners holding an interest in the General Partner
and their respective affiliates (the “Unaffiliated Limited Partners”) will have
the right to vote in the election of three independent directors (the “Class A
Directors”) to the Board of Directors of the General Partner. PVG
will have the right to appoint the three directors other than the Class A
Directors (the “Class B Directors”) to the Board of Directors of the General
Partner (the “Board of Directors”).
2
The
Partnership Agreement provides that an annual meeting of the Limited Partners
for the election of the Class A Directors to the Board of Directors will be held
in June of each year beginning in 2011 or at such other date and time as may be
fixed from time to time by the General Partner. Notice of the annual
meeting will be given not less than 10 days nor more than 60 days prior to the
date of such meeting.
The
Unaffiliated Limited Partners will vote together as a single class for the
election of Class A Directors to the Board of Directors. The
Unaffiliated Limited Partners entitled to vote will elect by a plurality of the
votes cast at such meeting persons to serve as Class A Directors on the Board of
Directors who are nominated in accordance with the provisions of the Partnership
Agreement. The exercise by an Unaffiliated Limited Partner of the
right to elect the Class A Directors and any other rights afforded to such
Unaffiliated Limited Partner under the Partnership Agreement will be in such
Unaffiliated Limited Partner’s capacity as a limited partner of the Partnership
and is not intended to cause an Unaffiliated Limited Partner to be deemed
to be taking part in the management and control of the business and affairs of
the Partnership.
With
respect to the election of Class A Directors to the Board of Directors, the
General Partner and those Limited Partners holding an interest in the General
Partner or their respective affiliates will not be entitled to vote Common Units
that are otherwise entitled to vote at any meeting of the Limited
Partners. If the General Partner has provided at least thirty days
advance notice of any meeting at which Class A Directors are to be elected, then
the Limited Partners holding outstanding units (other than the General Partner
and those Limited Partners holding an interest in the General Partner or any of
their respective affiliates) that attend such meeting shall constitute a quorum,
and if the General Partner has provided less than thirty days advance notice of
any such meeting, then Limited Partners holding a majority of the outstanding
units (other than the General Partner and those Limited Partners holding an
interest in the General Partner or their respective affiliates) shall constitute
a quorum.
The
number of directors constituting the Board of Directors will be
six. The number of Class A Directors on the Board of Directors shall
be three or such other number as shall be set forth in the General Partner
Agreement (as defined below). Immediately prior to the effectiveness
of Amendment No. 2 to the Partnership Agreement, Thomas W. Hofmann, James L.
Gardner and James R. Montague were independent directors on the Board of
Directors and, upon the effectiveness of Amendment No. 2 to the Partnership
Agreement, Thomas W. Hofmann, James L. Gardner and James R. Montague will each
be appointed as a Class A Director. Until such time as a Triggering
Resolution (as defined below) has been adopted, each Class A Director shall be
elected to serve a term of one year to expire at the next annual
meeting.
With
respect to any matter requiring approval of the Board of Directors (but not any
matter requiring approval of only a specific class of directors), in the event
of a tie vote, the Board of Directors will have delegated to Penn Virginia
Corporation the authority to break the tie vote; provided, however, Penn
Virginia Corporation shall not have such tie breaking authority at any time
after either a majority of the Class A Directors or a majority of the Class B
Directors have provided ten (10) days prior written notice of their election to
terminate Penn Virginia Corporation’s tie breaking authority.
3
Each
Class A Director will serve for a term ending as provided in the Partnership
Agreement. By resolution (a “Triggering Resolution”) of the Board of Directors
(including a majority of the Class A Directors), and without the consent of any
other person, the Class A Directors may be divided into three groups, Group I,
Group II, and Group III. The Class A Director designated in the Triggering
Resolution to Group I shall serve for an initial term that expires at the annual
meeting of Limited Partners held immediately following the Triggering
Resolution, the Class A Director designated in the Triggering Resolution to
Group II shall serve for an initial term that expires at the second annual
meeting of Limited Partners held following the Triggering Resolution, and the
Class A Director designated in the Triggering Resolution to Group III shall
serve for an initial term that expires at the third annual meeting of Limited
Partners held following the Triggering Resolution. At each succeeding
annual meeting beginning with the first annual meeting after a Triggering
Resolution, successors to the group of directors whose term expires at that
annual meeting will be elected for a three-year term.
Any
vacancy in a Class A Director on the Board of Directors (including, without
limitation, any vacancy caused by an increase in the number of Class A Directors
on the Board of Directors) may only be filled by a person nominated for election
by a majority of the remaining Class A Directors (or if there are no Class A
Directors, a majority of the Class B Directors) and consented to (such consent
not to be unreasonably withheld or delayed) by a majority of the remaining
directors, with such person being thereafter deemed elected. Any
Class A Director elected to fill a vacancy not resulting from an increase in the
number of Class A Directors shall have the same remaining term as that of his
predecessor.
A Class A
Director may be removed only at a meeting of the Limited Partners upon the
affirmative vote of Limited Partners (other than the General Partner and those
Limited Partners holding an interest in the General Partner or any of their
respective affiliates) holding a majority of the outstanding units (other than
the General Partner and those Limited Partners holding an interest in the
General Partner or any of their respective affiliates); provided, however, a
Class A Director may only be removed if, at the same meeting, Limited Partners
holding a majority of the outstanding units nominate a replacement Class A
Director (and any such nomination shall not be subject to the nomination
procedures otherwise set forth in the Partnership Agreement), and Limited
Partners (other than the General Partner and those Limited Partners holding an
interest in the General Partner or any of their respective affiliates) holding a
majority of the Outstanding Units (other than the General Partner and those
Limited Partners holding an interest in the General Partner or any of their
respective affiliates) also vote to elect a replacement Class A Director, and,
provided, further, following a Triggering Resolution, a Class A Director may
only be removed for cause.
Nominations
of persons for election of Class A Directors to the Board of Directors may be
made at an annual meeting of the Limited Partners only pursuant to the General
Partner’s notice of meeting (or any supplement thereto) (a) by or at the
direction of a majority of the Class A Directors (or, if there are no Class A
Directors at that time, by or at the direction of a majority of the Class B
Directors) or (b) by a Limited Partner, or a group of Limited Partners, that
holds or beneficially owns, and has continuously held or beneficially owned
without interruption for the prior 18 months, 5% of the outstanding units
(in either case, a “Limited Partner Group”) if each member of the Limited
Partner Group was a record holder at the time the notice provided for in the
Partnership Agreement is delivered to the General Partner, and if the Limited
Partner Group complies with the notice procedures set forth in the Partnership
Agreement.
4
For any
nominations brought before an annual meeting by a Limited Partner Group, the
Limited Partner Group must give timely notice thereof in writing to the General
Partner. The notice must contain certain information as described in
the Partnership Agreement. To be timely, a Limited Partner Group’s
notice must be delivered to the General Partner not later than the close of
business on the 90th day, nor earlier
than the close of business on the 120th day, prior to the first anniversary of
the preceding year’s annual meeting (provided, however, that in the event that
the date of the annual meeting is more than 30 days before or more
than 70 days after such anniversary date, notice by the Limited Partner
must be so delivered not earlier than the close of business on the 120th
day prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made by the Partnership or the General Partner). For purposes
of the 2011 annual meeting, the first anniversary of the preceding year’s annual
meeting will be deemed to be June 30, 2011. The public announcement
of an adjournment or postponement of an annual meeting will not commence a new
time period (or extend any time period) for the giving of a Limited Partner
Group’s notice as described above.
In the
event that the number of Class A Directors to be elected to the Board of
Directors is increased effective after the time period for which nominations are
due under the Partnership Agreement and there is no public announcement by the
Partnership or the General Partner naming the nominees for the additional
directorships at least 100 days prior to the first anniversary of the
preceding year’s annual meeting, a Limited Partner Group’s notice will also be
considered timely, but only with respect to nominees for the additional
directorships, if it is delivered to the General Partner not later than the
close of business on the 10th day following the day on which such public
announcement is first made by the Partnership or the General
Partner.
Nominations
of persons for election as a Class A Director to the Board of Directors also may
be made at a special meeting of Limited Partners at which Class A Directors are
to be elected in accordance with the provisions of the Partnership
Agreement.
Only such
persons who are nominated in accordance with the procedures set forth in the
Partnership Agreement will be eligible to be elected at an annual or special
meeting of Limited Partners to serve as Class A
Directors. Notwithstanding the foregoing, unless otherwise required
by law, if each member of the Limited Partner Group (or a qualified
representative of each member of the Limited Partner Group) does not appear at
the annual or special meeting of Limited Partners to present a nomination, such
nomination shall be disregarded notwithstanding that proxies in respect of such
vote may have been received by the General Partner or the
Partnership.
5
In
addition to the provisions described above and in the Partnership Agreement, a
Limited Partner must also comply with all applicable requirements of the
Exchange Act; provided however, that any references in the Partnership Agreement
to the Exchange Act or the rules promulgated thereunder are not intended to and
do not limit any requirements applicable to nominations pursuant to
the Partnership Agreement, and compliance with the Partnership Agreement is
the exclusive means for a Limited Partner to make nominations.
The
description of Amendment No. 2 to the Third Amended and Restated Agreement of
Limited Partnership of the Partnership does not purport to be complete and is
qualified in its entirety by reference to the complete text of such agreement, a
copy of the form of which is filed as Exhibit 3.1 to this Current Report on Form
8-K and is incorporated herein by reference.
Fifth
Amended and Restated Limited Liability Company Agreement of the General
Partner
Immediately
prior to the closing of the PVG Offering, PVG and the Partnership will enter
into the Fifth Amended and Restated Limited Liability Company Agreement of the
General Partner (as so amended and restated, the “General Partner Agreement”),
which then will become effective. The General Partner Agreement
provides for, among other items, the election of the Class A Directors of the
Board of Directors in the manner set forth in the Partnership Agreement and
described above. As amended, the General Partner Agreement provides
that the number of directors constituting the Board of Directors will be
six.
PVG will
be entitled to appoint all directors to the Board of Directors other than the
Class A Directors. Each Class B Director shall hold office until such
Class B Director’s successor shall have been duly elected and qualified, or
until such Class B Director’s earlier death, resignation or
removal. PVG will have the right to remove any Class B Director (with
or without cause). If at any time there is a vacancy with respect to
one or more Class B Directors on the Board of Directors, any such vacancy may
only be filled by a person nominated for election by the Class B Directors (or
if there are no Class B Directors, by PVG) and elected by PVG.
The Board
of Directors, by adoption of a resolution approved by the Board of Directors
(including a majority of the Class A Directors) and without the consent of any
other person, may provide for the staggered election of Class A Directors as
provided in the Partnership Agreement.
The
description of the Fifth Amended and Restated Limited Liability Company
Agreement of the General Partner does not purport to be complete and is
qualified in its entirety by reference to the complete text of such agreement, a
copy of the form of which is filed as Exhibit 3.2 to this Current Report on Form
8-K and is incorporated herein by reference.
Risk
Factors
Item 1A
of the Partnership’s Annual Report on Form 10-K for the year ended December 31,
2009 sets forth information relating to the material risks and uncertainties
that affect the Partnership’s business and common units. In addition to those
risk factors, the Partnership believes the following risk factor is also
relevant to an understanding of its business, financial condition and results of
operations.
6
Certain
federal income tax preferences currently available with respect to coal
exploration and development may be eliminated as a result of future
legislation.
Among the
proposed legislative changes contained in the President’s Budget Proposal for
Fiscal Year 2011 is the elimination of certain key U.S. federal income tax
preferences relating to coal exploration and development. The Budget Proposal
would (i) require capitalization of exploration and development costs
relating to coal and other hard mineral fossil fuels, (ii) repeal the
percentage depletion allowance with respect to coal properties,
(iii) repeal capital gains treatment of coal and lignite royalties, and
(iv) exclude from the definition of domestic production gross receipts all
gross receipts derived from the sale, exchange, or other disposition of coal,
other hard mineral fossil fuels, or primary products thereof. The passage of
such proposed legislative changes or similar changes in U.S. federal income
tax laws could increase the amount of taxable income allocable to our
unitholders, increase the tax liability of unitholders with respect to an
investment in us and negatively impact the value of an investment in our
units.
Item
9.01. Financial Statements and
Exhibits.
(d)
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Exhibits.
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3.1
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Form
of Amendment No. 2 to the Third Amended and Restated Agreement of Limited
Partnership of Penn Virginia Resource Partners,
L.P.
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3.2
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Form
of Fifth Amended and Restated Limited Liability Company Agreement of Penn
Virginia Resource GP, LLC.
|
7
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.
Date:
March 25, 2010
Penn
Virginia Resource Partners, L.P.
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|
By:
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Penn
Virginia Resource GP, LLC,
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its
general partner
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By:
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/s/ Nancy M. Snyder
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Name:
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Nancy
M. Snyder
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Title:
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Vice
President, Chief Administrative Officer and General
Counsel
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8