Attached files
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EX-16.2 - EX-16.2 - Armstrong Resource Partners, L.P. | c65698a1exv16w2.htm |
As filed with the Securities
and Exchange Commission on November 2, 2011
Registration Statement No. 333-177260
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 1
to
to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNDER
THE SECURITIES ACT OF 1933
ARMSTRONG RESOURCE PARTNERS,
L.P.
(Exact name of registrant as
specified in its charter)
Delaware | 1221 | 20-5609027 | ||
(State or other jurisdiction
of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(IRS Employer Identification No.) |
7733 Forsyth Boulevard, Suite 1625
St. Louis, Missouri 63105
(314) 721-8202
St. Louis, Missouri 63105
(314) 721-8202
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Martin D. Wilson
Armstrong Resource Partners, L.P.
7733 Forsyth Boulevard, Suite 1625
St. Louis, Missouri 63105
(314) 721-8202
Armstrong Resource Partners, L.P.
7733 Forsyth Boulevard, Suite 1625
St. Louis, Missouri 63105
(314) 721-8202
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With copies to:
David W. Braswell, Esq. Armstrong Teasdale LLP 7700 Forsyth Boulevard, Suite 1800 St. Louis, Missouri 63105 (314) 552-6631 |
D. Rhett Brandon, Esq. Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, New York 10017 (212) 455-2000 |
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this
Registration Statement is declared effective.
If any securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(c) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o |
(Do not check if a smaller
reporting company)
Calculation
of Registration Fee
Proposed |
Proposed |
|||||||||||||||||||
Maximum |
Maximum |
|||||||||||||||||||
Amount to be |
Offering Price |
Aggregate |
Amount of |
|||||||||||||||||
Title of Securities to be Registered | Registered(1) | Per Unit | Offering Price(1) | Registration Fee | ||||||||||||||||
Common units representing limited partnership interests(2)
|
$ | 22,000,000.00 | $ | 2,521.20 | ||||||||||||||||
(1) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. | |
(2) | Includes common units issuable upon exercise of the underwriters option to purchase additional common units. |
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as
the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
EXPLANATORY
NOTE
This Amendment No. 1 to the Registration Statement on
Form S-1
(File
No. 333-177260)
of Armstrong Resource Partners, L.P. is being filed solely for
the purpose of filing Exhibit 16.2. Other than the filing
of Exhibit 16.2 and corresponding changes to the
Exhibit Index and signature pages, the remainder of the
Registration Statement is unchanged.
PART II:
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. | Other Expenses of Issuance and Distribution |
The following table sets forth the costs and expenses, other
than underwriting discounts and commissions, payable solely by
Armstrong Resource Partners, L.P. (the Partnership)
and expected to be incurred in connection with the offer and
sale of the securities being registered. All amounts are
estimates, except the SEC registration fee and the FINRA filing
fee.
Amount to be Paid | ||||
SEC registration fee
|
$ | 2,521.20 | ||
FINRA filing fee
|
2,700.00 | |||
Blue sky fees and expenses*
|
||||
Nasdaq listing fee*
|
||||
Printing and engraving expenses*
|
||||
Legal fees and expenses*
|
||||
Accounting fees and expenses*
|
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Transfer agent fees*
|
||||
Miscellaneous*
|
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Total*
|
* | To be completed by amendment. |
Item 14. | Indemnification of Directors and Officers |
The section of the prospectus entitled The Partnership
Agreement Indemnification discloses that we
will generally indemnify officers, managers and affiliates of
our general partner to the fullest extent permitted by the law
against all losses, claims, damages or similar events and is
incorporated herein by this reference. Reference is also made to
the underwriting agreement filed as an exhibit to this
registration statement, which provides for the indemnification
of the registrant and its general partner and their officers and
directors or managers, as the case may be, and any person who
controls the registrant and its general partner, including
indemnification for liabilities under the Securities Act.
Subject to any terms, conditions or restrictions set forth in
the partnership agreement,
Section 17-108
of the Delaware Revised Uniform Limited Partnership Act empowers
a Delaware limited partnership to indemnify and hold harmless
any partner or other person from and against all claims and
demands whatsoever. The general partner of the registrant
maintains directors and officers liability insurance
for the benefit of its managers and officers.
Item 15. | Recent Sales of Unregistered Securities |
In the three years preceding the filing of this registration
statement, the Partnership (f/k/a Elk Creek, L.P.) issued the
following securities that were not registered under the
Securities Act (unit amounts do not give effect to an assumed
6.607 to 1 unit split to be effected prior to this offering):
On December 19, 2008, the Partnership issued a 54.54%
limited partnership interest to Yorktown Energy Partners VIII,
L.P. in consideration of $30,000,000, which interest was later
reclassified into 300,000 units of partnership interest for
no additional consideration. This partnership interest was
issued in a transaction exempt from the registration
requirements of the Securities Act under Section 4(2) of
the Securities Act.
On June 26, 2009, the Partnership issued an additional
16.26% limited partnership interest to Yorktown Energy Partners
VIII, L.P. in consideration of $30,600,000, which interest was
later reclassified into 306,000 units of partnership
interest for no additional consideration. This partnership
interest was issued in a transaction exempt from the
registration requirements of the Securities Act under
Section 4(2) of the Securities Act.
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On November 2, 2009, the Partnership issued an additional
3.32% limited partnership interest to Yorktown Energy Partners
VIII, L.P. in consideration of $11,000,000, which interest was
later reclassified into 110,000 units of partnership
interest for no additional consideration. This partnership
interest was issued in a transaction exempt from the
registration requirements of the Securities Act under
Section 4(2) of the Securities Act.
On March 31, 2010, the Partnership issued an additional
2.32% limited partnership interest to Yorktown Energy Partners
VIII, L.P. in consideration of $9,500,000, which interest was
later reclassified into 95,000 units of partnership
interest for no additional consideration. This partnership
interest was issued in a transaction exempt from the
registration requirements of the Securities Act under
Section 4(2) of the Securities Act.
On May 26, 2010, the Partnership issued an additional 2.5%
limited partnership interest to Yorktown Energy Partners VIII,
L.P. in consideration of $12,600,000, which interest was later
reclassified into 126,000 units of partnership interest for
no additional consideration. This partnership interest was
issued in a transaction exempt from the registration
requirements of the Securities Act under Section 4(2) of
the Securities Act.
On November 9, 2010, the Partnership issued an additional
1.78% limited partnership interest to Yorktown Energy Partners
VIII, L.P. in consideration of $11,000,000, which interest was
later reclassified into 110,000 units of partnership
interest for no additional consideration. This partnership
interest was issued in a transaction exempt from the
registration requirements of the Securities Act under
Section 4(2) of the Securities Act.
On January 9, 2011, the Partnership issued an additional
0.72% limited partnership interest to Yorktown Energy Partners
VIII, L.P. in consideration of $5,000,000, which interest was
later reclassified into 50,000 units of partnership
interest for no additional consideration. This partnership
interest was issued in a transaction exempt from the
registration requirements of the Securities Act under
Section 4(2) of the Securities Act.
On October 1, 2011, the Partnership issued 42,500
restricted units of limited partnership interest to certain of
its employees. These units were issued in a transaction exempt
from the registration requirements of the Securities Act
pursuant to Rule 701, promulgated under the Securities Act.
Item 16. | Exhibits and Financial Statement Schedules |
(a) Exhibits.
See the Exhibit Index on the page immediately preceding the
exhibits for a list of exhibits filed as part of this
registration statement on
Form S-1,
which Exhibit Index is incorporated herein by reference.
(b) Financial Statement Schedules.
Not applicable.
Item 17. | Undertakings |
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the Securities
Act), may be permitted to directors, officers and
controlling persons pursuant to the provisions described in
Item 14 above, or otherwise, it is the opinion of the
Securities and Exchange Commission that such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by us of expenses incurred or paid by a director, officer or
controlling person of us in the successful defense of any
action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by us is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
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The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
We hereby undertake that:
(i) for purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective; and
(ii) for purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, Armstrong Resource Partners, L.P. has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the County of
St. Louis, State of Missouri, on November 2, 2011.
ARMSTRONG RESOURCE PARTNERS, L.P.
By: |
Elk Creek GP, LLC,
its General Partner
|
|
By: |
/s/ Martin
D. Wilson
|
Martin D. Wilson
President
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities indicated on November 2, 2011.
Signature
|
Title
|
|||
* J. Hord Armstrong, III |
Chairman and Chief Executive Officer (Principal Executive Officer) |
|||
/s/ Martin
D. Wilson Martin D. Wilson |
President and Director | |||
* J. Richard Gist |
Senior Vice President, Finance and Administration and Chief Financial Officer (Principal Financial and Accounting Officer) |
|||
* Anson M. Beard, Jr. |
Director | |||
* James C. Crain |
Director | |||
* Richard F. Ford |
Director | |||
* Bryan H. Lawrence |
Director | |||
* Greg A. Walker |
Director | |||
By: |
/s/ Martin
D. Wilson Attorney-in-fact |
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EXHIBIT INDEX
Exhibit |
||||
Number
|
Description
|
|||
1 | .1* | Form of Underwriting Agreement. | ||
3 | .1** | Certificate of Limited Partnership of Elk Creek, L.P. | ||
3 | .2** | Certificate of Amendment to Certificate of Limited Partnership of Elk Creek, L.P. | ||
3 | .3** | Amended and Restated Agreement of Limited Partnership, dated October 1, 2011. | ||
3 | .4* | Second Amended and Restated Agreement of Limited Partnership, dated as of . | ||
5 | .1* | Form of Opinion of Armstrong Teasdale LLP. | ||
8 | .1* | Opinion of Armstrong Teasdale LLP relating to tax matters. | ||
10 | .1** | Credit Agreement by and among Armstrong Coal Company, Inc., Armstrong Land Company, LLC, Western Mineral Development, LLC, Western Diamond, LLC, Western Land Company, LLC and Elk Creek, L.P., as Borrowers, the Lenders party thereto, The Huntington National Bank, as Syndication Agent, Union Bank, N.A. as Documentation Agent and PNC Bank, National Association, as Administrative Agent, dated as of February 9, 2011. | ||
10 | .2** | First Amendment to Credit Agreement by and among Armstrong Coal Company, Inc., Armstrong Land Company, LLC, Western Mineral Development, LLC, Western Diamond, LLC, Western Land Company, LLC and Elk Creek, L.P., as Borrowers, the Guarantors party thereto, the financial institutions party thereto and PNC Bank, National Association, as Administrative Agent, dated as of July 1, 2011. | ||
10 | .3** | Second Amendment to Credit Agreement by and among Armstrong Coal Company, Inc., Armstrong Land Company, LLC, Western Mineral Development, LLC, Western Diamond, LLC, Western Land Company, LLC and Elk Creek, L.P., as Borrowers, the Guarantors party thereto, the financial institutions party thereto and PNC Bank, National Association, as Administrative Agent, dated as of September 29, 2011. | ||
10 | .4** | Coal Mining Lease between Alcoa Fuels, Inc. and Armstrong Coal Company, Inc., dated as of October 27, 2010. | ||
10 | .5* | Contract for Purchase and Sale of Eastern Coal by and between Tennessee Valley Authority and Armstrong Coal Company, Inc., dated as of November 30, 2007. | ||
10 | .6* | Tennessee Valley Authority Coal Acquisition & Supply Contract Supplement No. 1, dated as of July 29, 2008. | ||
10 | .7* | Tennessee Valley Authority Coal Acquisition & Supply Contract Supplement No. 2, dated as of July 29, 2008. | ||
10 | .8* | Tennessee Valley Authority Coal Acquisition & Supply Contract Supplement No. 3, dated as of November 12, 2008. | ||
10 | .9* | Tennessee Valley Authority Coal Acquisition & Supply Contract Supplement No. 4, dated as of December 11, 2008. | ||
10 | .10* | Tennessee Valley Authority Coal Acquisition & Supply Contract Supplement No. 5, dated as of February 12, 2009. | ||
10 | .11* | Tennessee Valley Authority Coal Acquisition & Supply Contract Supplement No. 6, dated as of October 9, 2009. | ||
10 | .12* | Tennessee Valley Authority Coal Acquisition & Supply Contract Supplement No. 7, dated as of December 29, 2009. | ||
10 | .13* | Tennessee Valley Authority Coal Supply & Origination Contract Supplement No. 8, dated as of May 25, 2011. | ||
10 | .14* | Tennessee Valley Authority Coal Supply & Origination Contract Supplement No. 9, dated as of August 9, 2011. | ||
10 | .15* | Coal Supply Agreement by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, effective as of January 1, 2008. |
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Exhibit |
||||
Number
|
Description
|
|||
10 | .16* | Amendment No. 1 to Coal Supply Agreement by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, effective as of July 1, 2008. | ||
10 | .17* | Amendment No. 2 to Coal Supply Agreement by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, effective as of December 22, 2009. | ||
10 | .18* | Letter Agreement by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, dated December 8, 2008. | ||
10 | .19* | Letter Agreement by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, dated April 1, 2009. | ||
10 | .20* | Settlement Agreement and Release by and between Louisville Gas and Electric Company and Kentucky Utilities Company and Armstrong Coal Company, Inc., dated as of December 22, 2009. | ||
10 | .21* | Coal Supply Agreement by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, effective as of December 22, 2009. | ||
10 | .22* | Coal Supply Agreement by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, effective as of January 1, 2012. | ||
10 | .23* | Fuel Purchase Order by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, dated July 1, 2008. | ||
10 | .24* | Amendment No. 1 to Fuel Purchase Order dated July 1, 2008 by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, dated July 28, 2008. | ||
10 | .25* | Fuel Purchase Order by and between Louisville Gas and Electric Company and Kentucky Utilities Company, as Buyer, and Armstrong Coal Company, Inc., as Seller, dated January 1, 2010. | ||
10 | .26** | Letter Agreement between Armstrong Land Company, LLC and J. Richard Gist, dated as of September 14, 2009. | ||
10 | .27** | Employment Agreement by and between Armstrong Energy, Inc. and J. Richard Gist, dated as of October 1, 2011. | ||
10 | .28** | Employment Agreement by and between Armstrong Energy, Inc. and J. Hord Armstrong, III, dated as of October 1, 2011. | ||
10 | .29** | Employment Agreement by and between Armstrong Energy, Inc. and Martin D. Wilson, dated as of October 1, 2011. | ||
10 | .30** | Employment Agreement by and between Armstrong Coal Co. and Kenneth E. Allen, dated as of June 1, 2007. | ||
10 | .31** | Employment Agreement by and between Armstrong Coal Co. and David R. Cobb, dated as of January 19, 2007. | ||
10 | .32** | Restricted Unit Award Agreement between Armstrong Resource Partners, L.P. and J. Hord Armstrong, III, dated as of October 1, 2011. | ||
10 | .33** | Restricted Unit Award Agreement between Armstrong Resource Partners, L.P. and Martin D. Wilson, dated as of October 1, 2011. | ||
10 | .34** | Form of Armstrong Energy, Inc. Director Indemnification Agreement. | ||
10 | .35** | Armstrong Energy, Inc. 2011 Long-Term Incentive Plan. | ||
10 | .36** | Amended Overriding Royalty Agreement by and among Western Land Company, LLC, Western Diamond, LLC, Ceralvo Holdings, LLC, Armstrong Mining, Inc., Armstrong Coal Company, Inc., Armstrong Land Company, LLC and Kenneth E. Allen, dated as of December 3, 2008. | ||
10 | .37** | Amended Overriding Royalty Agreement by and among Western Land Company, LLC, Western Diamond, LLC, Ceralvo Holdings, LLC, Armstrong Mining, Inc., Armstrong Coal Company, Inc., Armstrong Land Company, LLC and David R. Cobb, dated as of December 3, 2008. | ||
10 | .38* | Administrative Services Agreement by and between Armstrong Energy, Inc., Armstrong Resource Partners, L.P. and Elk Creek GP, LLC, effective as of January 1, 2011. |
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Exhibit |
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Number
|
Description
|
|||
10 | .39* | Promissory Note of Armstrong Land Company, LLC in favor of Elk Creek, L.P. in the principal amount of $11.0 million, dated November 30, 2009. | ||
10 | .40* | Promissory Note of Armstrong Land Company, LLC in favor of Elk Creek, L.P. in the principal amount of $9.5 million, dated March 31, 2010. | ||
10 | .41* | Promissory Note of Armstrong Land Company, LLC in favor of Elk Creek, L.P. in the principal amount of $12.6 million, dated May 31, 2010. | ||
10 | .42* | Promissory Note of Armstrong Land Company, LLC in favor of Elk Creek, L.P. in the principal amount of $11.0 million, dated November 30, 2010. | ||
10 | .43* | Credit and Collateral Support Fee, Indemnification and Right of First Refusal Agreement by and between Armstrong Land Company, LLC, Armstrong Resource Holdings, LLC, Western Diamond, LLC, Western Land Company, LLC, Armstrong Coal Company, Inc., Elk Creek, L.P., Elk Creek Operating, L.P., Ceralvo Holdings, LLC and Western Mineral Development, LLC, effective as of February 9, 2011. | ||
10 | .44* | Lease and Sublease Agreement between Armstrong Coal Company, Inc. and Ceralvo Holdings, LLC, dated February 9, 2011. | ||
10 | .45* | Royalty Deferment and Option Agreement by and between Armstrong Coal Company, Inc., Western Diamond, LLC, Western Land Company, LLC and Western Mineral Development, LLC, effective February 9, 2011. | ||
10 | .46* | Lease Agreement by and between Armstrong Coal Company, Inc. and David and Rebecca Cobb, dated August 1, 2009. | ||
10 | .47* | Purchase Agreement between Western Land Company, LLC and Pond Creek Partners, LLC, effective January 5, 2011. | ||
10 | .48* | Option Amendment, Option Exercise and Membership Interest Purchase Agreement by and between Armstrong Land Company, LLC, Armstrong Resource Holdings, LLC, Western Diamond LLC, Western Land Company, LLC, Western Mineral Development, LLC, and Elk Creek, L.P., dated as of February 9, 2011. | ||
10 | .49* | Coal Mining Lease and Sublease by and between Ceralvo Holdings, LLC and Armstrong Coal Company, Inc., dated as of February 9, 2011. | ||
10 | .50* | Contract to Sell Real Estate by and between Western Diamond LLC, Western Land Company, LLC and Western Mineral Development, LLC, dated as of October 11, 2011. | ||
16 | .1** | Letter from Grant Thornton LLP to Securities and Exchange Commission. | ||
16 | .2 | Letter from KPMG LLP to Securities and Exchange Commission. | ||
21 | .1** | List of Subsidiaries. | ||
23 | .1** | Consent of Armstrong Teasdale LLP (included in Exhibit 5.1). | ||
23 | .2** | Consent of Ernst & Young LLP. | ||
23 | .3** | Consent of Grant Thornton LLP. | ||
23 | .4** | Consent of Weir International, Inc. | ||
24 | .1** | Power of Attorney (included on signature page). | ||
99 | .1* | Audit Committee Charter. | ||
99 | .2* | Compensation Committee Charter. | ||
99 | .3* | Nominating and Corporate Governance Committee Charter. |
* | To be filed by amendment. |
** | Previously filed. |
| Indicates a management contract or compensatory plan or arrangement. |
II-7