Attached files
file | filename |
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EX-3.2 - Breitburn Energy Partners LP | v180168_ex3-2.htm |
EX-4.1 - Breitburn Energy Partners LP | v180168_ex4-1.htm |
EX-3.1 - Breitburn Energy Partners LP | v180168_ex3-1.htm |
EX-10.1 - Breitburn Energy Partners LP | v180168_ex10-1.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 (DATE OF EARLIEST EVENT REPORTED)
April
8, 2010 (April 5, 2010)
BREITBURN
ENERGY PARTNERS L.P.
(Exact
name of Registrant as specified in its charter)
Delaware
|
001-33055
|
74-3169953
|
(State
or other jurisdiction of
incorporation
or organization)
|
(Commission
File
Number)
|
(I.R.S.
Employer
Identification
No.)
|
515
South Flower Street, Suite 4800
Los
Angeles, CA 90071
(Address
of principal executive office)
(213)
225-5900
(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))
ITEM
1.01 Entry into a Material Definitive Agreement.
Settlement
Agreement
On
April 5, 2010, BreitBurn Energy Partners L.P., a Delaware limited partnership
(the “Partnership” or “BreitBurn”), its general partner, BreitBurn GP, LLC
(the "General Partner"), Quicksilver Resources Inc. ("Quicksilver"),
Provident Energy Trust (“Provident”), Halbert S. Washburn and Randall H.
Breitenbach entered into a Settlement Agreement (the “Settlement Agreement”),
confirming the terms of the original settlement agreement dated February 3, 2010
wherein the parties agreed to settle all claims with respect to the litigation
filed by Quicksilver against the Partnership, the General Partner, certain of
its subsidiaries and directors and Provident pending in the 48th District
Court in Tarrant County, Texas (the "Court"). The Settlement
Agreement supersedes the original settlement agreement dated February 3, 2010 in
its entirety. The description set forth below of the Settlement
Agreement is qualified in its entirety by reference to the Settlement Agreement,
which has been filed as Exhibit 10.1 to this Current Report on Form
8-K.
Pursuant to the Settlement Agreement,
the parties agreed to dismiss all pending claims before the Court and mutually
released each party, its affiliates, agents, officers, directors and attorneys
from any and all claims arising from the subject matter of the litigation filed
by Quicksilver before the Court. On April 6, 2010, the Partnership
paid Quicksilver $13 million and expects this amount to be reimbursed by
insurance. However, discussions with the Partnership’s insurers are
ongoing. Provident has paid Quicksilver a separate settlement
amount.
The terms of the Settlement Agreement
as described below in greater detail were effective on April 6, 2010 (the
“Effective Time”) upon the entry of the final judgment and order of dismissal by
the Court in the form attached to the Settlement Agreement as Exhibit 1(A) (the
“Order”), which, among other things, dismissed the lawsuit in
Texas. Pursuant to the Order, the Court held that Amendment No. 1 to
the First Amended and Restated Agreement of Limited Partnership of the
Partnership (as amended, the “Partnership Agreement”), dated as of June 17,
2008, Amendment No. 2 to the Partnership Agreement, dated as of April 7, 2009,
and Amendment No. 3 to the Partnership Agreement, dated as of August 27, 2009,
were validly adopted and are part of the Partnership Agreement. The
Court further held that Revised Amendment No. 1 to the Partnership Agreement,
dated as of December 29, 2009, is not part of the Partnership Agreement.
Other terms of the Settlement Agreement
are summarized below:
Designation,
Nomination and Election of Directors; Management. As the
Partnership previously disclosed in a Current Report on Form 8-K dated March 31,
2010 and filed on April 6, 2010 (the “Form 8-K dated March 31, 2010”), pursuant
to the Settlement Agreement, there will continue to be six members serving on
the Board of Directors (the “Board”) of the General Partner. As of
the Effective Time, the directors include the four continuing independent
members serving on the Board, John R. Butler, Jr., Gregory J. Moroney, Charles
S. Weiss and David B. Kilpatrick, and the two new directors designated by
Quicksilver, Mr. Walker C. Friedman and Mr. W. Yandell Rogers,
III. Mr. Butler is Chairman of the Board. As the
Partnership previously disclosed in the Form 8-K dated March 31, 2010, Mr.
Breitenbach has been appointed to the office of President of the General
Partner, and has resigned as Co-Chief Executive Officer of the General
Partner. Mr. Washburn will remain as Chief Executive Officer of the
General Partner.
The Form 8-K dated March 31, 2010
contains a description of the provisions of the Settlement Agreement relating to
the designation, nomination and election of directors and changes to management
and is incorporated herein by reference. The description set forth in
the Form 8-K dated March 31, 2010 is qualified in its entirety by reference to
the Settlement Agreement, which has been filed as Exhibit 10.1 to this Current
Report on Form 8-K.
In order
to implement the terms of the Settlement Agreement with respect to the
designation, nomination and election of directors, changes to management and the
voting rights as described above, on April 5, 2010, the General Partner entered
into Amendment No. 4 to the Partnership Agreement (“Amendment No. 4”), and the
Partnership entered into the Fourth Amended and
Restated Limited Liability Company Agreement of the General Partner (the “Fourth
Amended LLC Agreement”), which agreements are described in more detail
below. The descriptions set forth below of Amendment No. 4 and
the Fourth Amended LLC Agreement are qualified in their entirety by reference to
such agreements, which have been filed as Exhibits 3.1 and 3.2, respectively, to
this Current Report on Form 8-K.
2
Voting
Rights. Subject to
certain exceptions, Quicksilver will accept and agree not to challenge the
voting rights as set forth in the original Amendment No. 1 to the
Partnership Agreement, dated June 17, 2008. During the period
beginning at the Effective Time and ending when Quicksilver, together with its
Controlled Affiliates, owns fewer than 2,638,500 Common Units (the
“Effectiveness Period”), the General Partner has agreed not to effect any
amendment to the Partnership Agreement that would restrict in any manner
Quicksilver’s rights to vote any or all of its Common Units in the election of
directors or any other matters presented to the unitholders. The General
Partner has withdrawn Revised Amendment No. 1 to the Partnership Agreement,
dated December 29, 2009. During the Effectiveness Period, the General
Partner will not propose or adopt any new amendment, provision, resolution, or
change that would limit, deprive, or restrict Quicksilver’s right to vote all
its Common Units, one vote per unit, on any matter.
Waiver of Voting
Cap. The
Board has permanently and irrevocably determined that the 20% voting cap
limitation in the election of directors set forth in clause (B) of the first
sentence of Section 13.4(b)(iii) of the Partnership Agreement shall not apply to
Quicksilver or its Controlled Affiliates with respect to the Common Units
currently owned by Quicksilver and any units or other voting securities received
by Quicksilver or its Controlled Affiliates in respect of such Common Units
currently owned by Quicksilver pursuant to a distribution, rights offering,
reclassification or reorganization involving the Partnership or its Common Units
or other voting securities.
Piggyback Rights
and Registration Rights Agreement. Pursuant to
the Settlement Agreement, Quicksilver will have the right to participate by
including its Common Units in every Equity Offering (as such term is
defined in the Settlement Agreement) in an amount up to 20% of the
aggregate amount of the securities offered in such Equity Offering (the
“Piggyback Right”).
Pursuant to the Settlement Agreement,
the Partnership and Quicksilver entered into the First Amendment to the
Registration Rights Agreement dated as of November 1, 2007, by and between the
Partnership and Quicksilver (as amended, the “Registration Rights Agreement”),
which is described in more detail below. The Registration Rights
Agreement will exclusively govern the Piggyback Right as it relates to an
“Underwritten Offering” (as such term is defined in the Registration Rights
Agreement). The description of the First Amendment to the
Registration Rights Agreement set forth below is qualified in its entirety by
reference to such amendment, which has been filed as Exhibit 4.1 to this Current
Report on Form 8-K.
With respect to any Equity Offering
that is not an Underwritten Offering, Quicksilver and the Partnership have
agreed to be bound by certain notice and other provisions contained in the
Settlement Agreement. The Piggyback Right set forth in the Settlement
Agreement will terminate on the date that is the three month anniversary of
the date on which Quicksilver ceases to be an Affiliate (as defined in the
Settlement Agreement) of the Partnership.
Voting on Removal
of the General Partner. During the Effectiveness Period, with
respect to any proposal to remove the General Partner as the general partner of
the Partnership, Quicksilver and its Controlled Affiliates may not vote a
proportion of their Common Units in favor of removal that exceeds the proportion
of the Common Units voted in favor of such proposal by the unitholders other
than Quicksilver and its Controlled Affiliates as compared to all Common Units
held by the unitholders other than Quicksilver and its Controlled
Affiliates.
3
Quicksilver Standstill.
For a period beginning on the Effective
Time and ending on the date on which Quicksilver, together with its Controlled
Affiliates, ceases to hold at least 10% of the outstanding Common Units, Quicksilver and its Controlled Affiliates
shall
not:
(i) engage in any hostile or
takeover activities (including by means of a tender offer, soliciting proxies or
written consents, other than as recommended by the Board);
(ii) acquire or propose to acquire
additional Common Units, securities or properties of the Partnership, except
pursuant to a distribution, rights offering, reclassification or reorganization
involving the Partnership or its Common Units or other securities that is
approved by the Board;
(iii) call a special meeting of the
unitholders; or
(iv) propose to remove the General
Partner as the general partner of the Partnership or, other than in accordance
with the provisions of the Settlement Agreement described above under “Voting on
Removal of the General Partner,” vote to remove the General Partner
as the general partner of the Partnership.
Specifically, without the prior written
consent of the Board, Quicksilver and its Controlled Affiliates shall not,
directly or indirectly:
(i) acquire any securities or property
of the Partnership or any of its Affiliates, except pursuant to a distribution,
rights offering, reclassification or reorganization involving the Partnership or
its Common Units or other securities approved by the Board;
(ii) propose to enter into, directly or
indirectly, any merger, consolidation, recapitalization, business combination,
partnership, joint venture or similar transaction involving the Partnership or
any of its Affiliates, except as permitted hereby;
(iii) make or in any way participate in
any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 of
Regulation 14A under the Securities Exchange Act of 1934) or written consents to
vote, seek to influence, or advise others with respect to the voting of any
voting securities of the Partnership or any of its Affiliates;
(iv) form, join or participate in a
“group” (within the meaning of Section 13(d) of the Securities Exchange Act of
1934) with respect to any voting securities of the Partnership or any of its
Affiliates;
(v) act to seek to control or influence
the management, Board or policies of the Partnership, except through
Quicksilver’s Board designees or as permitted by the Settlement
Agreement;
(vi) propose to remove the General
Partner as the general partner of the Partnership or, other than in accordance
with the provisions of the Settlement Agreement described above under “Voting on
Removal of the General Partner,” vote to remove the General Partner
as the general partner of the Partnership;
(vii) publicly disclose any intent,
plan or arrangement inconsistent with the Settlement Agreement; or
(viii) advise, assist or encourage
others in connection with the above.
Quicksilver and its Controlled
Affiliates shall not sell or transfer in a single transaction or series of
related transactions their respective Common Units without the prior written
consent of the Board, except:
(i) to a party that would not own,
individually or as a member of a group, 20% or more of the outstanding Common
Units after such transfer;
(ii) in connection with a business
combination approved by the Board and/or the unitholders;
(iii) in a bona fide pledge of any
voting securities to a financial institution or brokerage firm; or
(iv) in an underwritten offering where
the Common Units will be widely distributed or would not result in any purchaser
in such offering owning, individually or as a member of a group, 20% or more of
the outstanding Common Units after the offering.
4
Notwithstanding the foregoing, the
provisions of the Settlement Agreement described above under “Quicksilver
Standstill” shall not, and are not intended to:
(i) prohibit Quicksilver from privately
communicating with, including making any offer or proposal to, the
Board;
(ii) restrict in any manner how
Quicksilver votes its Common Units, except as provided in the Settlement
Agreement;
(iii) restrict the manner in which
Quicksilver’s designees to the Board (A) may vote on any matter submitted to the
Board or the unitholders, (B) participate in deliberations or discussions of the
Board (including making suggestions or raising issues to the Board) in their
capacity as members of the Board, or (C) may take actions required by their
exercise of legal duties and obligations as members of the Board or refrain from
taking any action prohibited by their legal duties and obligations as members of
the Board; or
(iv) restrict Quicksilver from selling
or transferring any of its Common Units to any Affiliate or successor of
Quicksilver that agrees to be bound by certain provisions of the Settlement
Agreement.
The provisions of the Settlement
Agreement described above under “Quicksilver Standstill” shall immediately and
automatically be suspended upon the increase or acceleration of a material
financial obligation of the Partnership that results from the breach of a
material provision thereof or the occurrence of a material event of default
thereunder, unless such breach is caused solely by the action or inaction of
Quicksilver, its Controlled Affiliates or its designees to the
Board.
Amendment
No. 4 to the Partnership Agreement
Pursuant
to the Order, the Court held that Amendment No. 1 to the Partnership Agreement,
dated as of June 17, 2008, Amendment No. 2 to the Partnership Agreement, dated
as of April 7, 2009, and Amendment No. 3 to the Partnership Agreement, dated as
of August 27, 2009, were validly adopted and are part of the Partnership
Agreement. The Court further held that Revised Amendment No. 1 to the
Partnership Agreement, dated as of December 29, 2009, is not part of the
Partnership Agreement. The General Partner
entered into Amendment No. 4 to the Partnership Agreement, which was effective
on April 6, 2010. Amendment No. 4 implemented the terms of the
Settlement Agreement with respect to the voting rights as described
above.
Pursuant
to Amendment No. 4, Section 13.4 of the Partnership Agreement was amended to
provide that any vote, consent or other action taken by or on behalf of
Quicksilver in breach of certain provisions of the Settlement Agreement relating
to voting rights will, to the extent in breach, be null and void and shall not
be counted or considered as a vote, consent or other
action. Quicksilver will not, as a result of the foregoing, be
considered a separate class of Limited Partner and the Common Units held by
Quicksilver will not be considered a separate class of Common
Units.
A copy of
Amendment No. 4 is filed as Exhibit 3.1 to this Current Report on Form 8-K and
is incorporated herein by reference.
Fourth
Amended and Restated Limited Liability Company Agreement of the General
Partner
The Partnership, as sole member of the
General Partner, entered into the Fourth Amended and Restated Limited Liability
Company Agreement of the General Partner, which was effective on April 6,
2010. The Fourth Amended LLC Agreement implemented certain terms of
the Settlement Agreement with respect to the designation, nomination and
election of directors.
5
The Fourth Amended LLC Agreement
provides that the members of the Board will be elected by the unitholders and
nominated in accordance with the terms of the Partnership
Agreement. The Board is divided into three classes, Class I, Class
II, and Class III. The directors designated to Class I will serve for
an initial term that expires at the annual meeting of Limited Partners
originally intended to be held in 2009, the directors designated to Class II
will serve for an initial term that expires at the annual meeting of unitholders
held in 2010, and the directors designated to Class III will serve for an
initial term that expires at the annual meeting of unitholders held in
2011. At each succeeding annual meeting of unitholders, successors to
the class of directors whose term expires at that annual meeting will be elected
for a three-year term; provided, however, because the first annual meeting of
the unitholders, which was originally intended to be held in 2009, was postponed
as a result of the litigation addressed in the Settlement Agreement and is now
expected to be held in 2010, (i) at that first annual meeting, it is expected
that an election will be held to elect successors to the directors whose term
was originally intended to expire in 2009 (i.e., the Class I directors)
and the directors whose term was originally intended to expire in 2010 (i.e., the Class II
directors), and (ii) the Class I directors to be elected at the first
annual meeting will be elected for a term that will expire three years after the
year in which the initial annual meeting was originally intended to be held
(i.e., 2012), and the
Class II directors to be elected at the first annual meeting will be elected for
a term that will expire three years after the year in which the annual meeting
for their election was originally intended to be held (i.e., 2013).
Each director will hold office for the
term for which such director is elected and thereafter until such director’s
successor shall have been duly elected and qualified, or until such director’s
earlier death, resignation or removal. Any vacancy on the Board of
directors (including, without limitation, any vacancy caused by an increase in
the number of directors on the Board of directors) may only be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy not
resulting from an increase in the number of directors will have the same
remaining term as that of his predecessor. A director may be removed
only for cause and only upon a vote of the majority of the remaining directors
then in office.
The Board consists of six
directors. The directors of the General Partner as of the date hereof
and the Class that each such director is a member of is hereby designated as
follows:
John
R. Butler, Jr.
|
Class
I
|
Gregory
J. Moroney
|
Class
I
|
Walker
C. Friedman
|
Class
II
|
Charles
S. Weiss
|
Class
II
|
David
B. Kilpatrick
|
Class
III
|
W.
Yandell Rogers, III
|
Class
III
|
A copy of
the Fourth Amended LLC Agreement is filed as Exhibit 3.2 to this Current Report
on Form 8-K and is incorporated herein by reference.
First
Amendment to the Registration Rights Agreement, by and between the Partnership
and Quicksilver
The Partnership and Quicksilver entered
into the First Amendment to the Registration Rights Agreement, which was
effective on April 6, 2010.
Pursuant to the First Amendment to the
Registration Rights Agreement, Quicksilver will have the right to include its
Common Units in any Underwritten Offering subject to the Registration Rights
Agreement in a number up to the greater of (i) 20% of the number of Common Units
to be sold in such Underwritten Offering or (ii) the number of Common Units that
Quicksilver could include in such Underwritten Offering without regard to clause
(i) above, provided that Quicksilver complies with the notice provisions for
requesting inclusion of its Registrable Securities (as defined in the
Registration Rights Agreement) in any such Underwritten Offering. The
operative provisions of the Registration Rights Agreement, other than the
indemnification provisions, will terminate on the date that is the three month
anniversary of the date on which Quicksilver ceases to be an affiliate of the
Partnership.
A copy of the First
Amendment to the Registration Rights Agreement is filed as Exhibit 4.1 to this
Current Report on Form 8-K and is incorporated herein by
reference.
6
ITEM 5.03
Amendment
to Articles of Incorporation or Bylaws
Amendment
No. 4 to the Partnership Agreement
The
General Partner entered into Amendment No. 4 to the Partnership Agreement, which
was effective on April 6, 2010. The description of Amendment No. 4 is
incorporated herein by reference from Item 1.01 of this Current Report on Form
8-K.
A copy of
Amendment No. 4 is filed as Exhibit 3.1 to this Current Report on Form 8-K and
is incorporated herein by reference.
Fourth
Amended and Restated Limited Liability Company Agreement of the General
Partner
The
Partnership, as sole member of the General Partner, entered into the Fourth
Amended and Restated Limited Liability Company Agreement of the General Partner,
which was effective on April 6, 2010. The description of the Fourth Amended LLC
Agreement is incorporated herein by reference from Item 1.01 of this Current
Report on Form 8-K.
Item 9.01. Financial Statements
and Exhibits.
(d)
|
Exhibits
|
||||
3.1
|
Amendment
No. 4 to the First Amended and Restated Agreement of Limited Partnership
of BreitBurn Energy Partners L.P., dated as of April 5,
2010.
|
||||
3.2 | Fourth Amended and Restated Limited Liability Company Agreement of BreitBurn GP, LLC, dated as of April 5, 2010. | ||||
4.1 | First Amendment to the Registration Rights Agreement by and between BreitBurn Energy Partners L.P. and Quicksilver Resources Inc., dated as of April 5, 2010. | ||||
10.1
|
Settlement Agreement by and among Quicksilver Resources Inc., BreitBurn Energy Partners L.P., BreitBurn GP, LLC, Provident Energy Trust, Randall H. Breitenbach and Halbert S. Washburn, dated April 5, 2010. |
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 thereunto
duly authorized.
BREITBURN
ENERGY PARTNERS L.P.
|
|||
By:
|
BREITBURN
GP, LLC,
|
||
its
general partner
|
|||
Dated:
April 8, 2010
|
By:
|
/s/Halbert
S. Washburn
|
|
Halbert
S. Washburn
|
|||
Chief
Executive Officer
|
8
EXHIBIT INDEX
Exhibit
Number
|
Exhibit
Title
|
||||
3.1
|
Amendment
No. 4 to the First Amended and Restated Agreement of Limited Partnership
of BreitBurn Energy Partners L.P., dated as of April 5,
2010.
|
||||
3.2 | Fourth Amended and Restated Limited Liability Company Agreement of BreitBurn GP, LLC, dated as of April 5, 2010. | ||||
4.1 | First Amendment to the Registration Rights Agreement by and between BreitBurn Energy Partners L.P. and Quicksilver Resources Inc., dated as of April 5, 2010. | ||||
10.1
|
Settlement Agreement by and among Quicksilver Resources Inc., BreitBurn Energy Partners L.P., BreitBurn GP, LLC, Provident Energy Trust, Randall H. Breitenbach and Halbert S. Washburn, dated April 5, 2010. |
9