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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): December 2, 2010 (December 1, 2010)
Buckeye Partners, L.P.
(Exact Name of Registrant as Specified in Charter)
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Delaware
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1-9356
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23-2432497 |
(State or Other
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(Commission File
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(I.R.S. Employer |
Jurisdiction of
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Number)
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Identification No.) |
Incorporation) |
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One Greenway Plaza |
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Suite 600 |
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Houston, TX
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77046 |
(Address of Principal Executive Offices)
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(Zip Code) |
Registrants telephone number, including area code: (832) 615-8600
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):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
Introductory Note
As previously disclosed, on November 19, 2010, the transactions contemplated by the First
Amended and Restated Agreement and Plan of Merger, dated as of August 18, 2010 (as amended, the
Merger Agreement), by and among Buckeye Partners, L.P. (the Partnership), Buckeye GP LLC, the
Partnerships general partner (the Partnership GP), Buckeye GP Holdings L.P. (Holdings),
MainLine Management LLC, Holdings general partner (Holdings GP), and Grand Ohio, LLC
(MergerCo), closed, MergerCo merged with and into Holdings (the Merger), the separate existence
of MergerCo ceased and Holdings survived as a Delaware limited partnership and as a subsidiary of
the Partnership. In connection with the closing of the transactions contemplated by the Merger
Agreement, the previously effective amended and restated agreement of limited partnership of the
Partnership, dated as of April 14, 2008, was amended and restated by the Amended and Restated
Agreement of Limited Partnership of the Partnership, dated as of November 19, 2010 (the
Partnership Agreement). In general, the Partnership Agreement provides for, among other things,
the election of some or all of the directors to the board of directors of the Partnership GP (the
Partnership Board) by the Partnerships limited partners (the public election provisions),
including the holders of the Partnerships limited partnership units (Partnership LP units), and
for the classification of some or all of the directors on the Partnership Board upon either (a) the
receipt of approval from the California Public Utilities Commission and the Pennsylvania Public
Utility Commission of the public election provisions or (b) a determination by the Partnership
Board that such approvals are not required.
ITEM 8.01 OTHER EVENTS.
On December 1, 2010, the Partnership Board determined, based upon the advice of counsel, that
the public election provisions do not require any approval of California Public Utilities
Commission or the Pennsylvania Public Utility Commission that has not already been obtained. In
addition, on December 1, 2010, the Partnership Board, by resolution in accordance with the
Partnership Agreement, classified certain of the directors into three classes: Joseph A. LaSala,
Jr., Martin A. White and Forrest E. Wylie are in Class I, C. Scott Hobbs and Mark C. McKinley are
in Class II and Oliver G. Richard, III and Frank S. Sowinski are in Class III. This Item 8.01
describes, among other things, certain of the provisions of the Partnership Agreement that became
effective as a result of such determination and the classification of the directors by the
Partnership Board.
Under the Partnership Agreement, Holdings GP is entitled to designate up to two directors to
the Partnership Board. Such directors are referred to in the Partnership Agreement as Holdco GP
Directors. The Partnership Agreement provides that Holdings GP shall have the right to designate
(a) two Holdco GP Directors for so long as BGH GP Holdings, LLC (BGH GP), ArcLight Capital
Partners, LLC (ArcLight) and Kelso & Company (Kelso) and their affiliates (directly and
indirectly) collectively own at least 10,495,107 Partnership LP units (85% of the number they
owned immediately after the closing of the Merger) or (b) one Holdco GP Director for so long as
they collectively own at least 5,247,554 Partnership LP units (42.5% of the number they owned after
the closing of the Merger). Under the Partnership Agreement, for so long as Holdings GP has the
right to designate any Holdco GP Directors, BGH GP, ArcLight and Kelso and their affiliates will
not vote their Partnership LP units in connection with the election of Public Directors (as defined
below), and Public Limited Partners will be defined as all limited partners other than BGH GP,
ArcLight and Kelso and their affiliates. Once Holdings GP ceases to have the right to designate any
Holdco GP Directors, Public Limited Partners will mean all limited partners.
Under the Partnership Agreement, Public Limited Partners are entitled to elect all members of
the Partnership Board, other than the Holdco GP Directors (such directors elected by the Public
Limited Partners are referred to as the Public Directors). As of the date of this report, the
Public Directors are Forrest E. Wylie, C. Scott Hobbs, Joseph A. LaSala, Jr., Mark. C. McKinley,
Oliver G. Richard, III, Frank S. Sowinski and Martin A. White and the Holdco GP Directors are Frank
J. Loverro and John F. Erhard.
Pursuant to
the Partnership Agreement, the Public Directors are classified into three classes.
The number of Public Directors in each class shall be the whole number contained in the quotient arrived at by
dividing the authorized number of Public Directors by three, and if a fraction is also contained in
such quotient, then if such fraction is one-third, the extra director shall be a member of Class I
and if the fraction is two-thirds, one of the extra directors shall be a member of Class I and the
other shall be a member of Class II.
The Public Directors that are designated to Class I will serve for an initial term that
expires at the first annual meeting of the Partnerships unitholders, the Public Directors
designated to Class II will serve for an initial term that
expires at the second annual meeting of
the Partnerships unitholders, and the Public Directors designated to Class III will serve for an
initial term that expires at the third annual meeting of the Partnerships unitholders. At each
annual meeting of the Partnerships unitholders, directors to replace Public Directors whose terms expire
at such annual meeting will be elected to hold office until the third succeeding annual meeting.
Each Public Director will hold office for the term for which such director is elected or until such
directors earlier death, resignation or removal. Any vacancies may be filled by a majority of the
remaining Public Directors then in office. A Public Director may be removed only for cause and only
upon a vote of the majority of the remaining Public Directors then in office.
The number of directors on the Partnership Board will be not less than six and not more than
nine. Any increase or decrease in the number of directors shall be
apportioned among the classes of Public Directors so
as to maintain the number of Public Directors in each class as nearly
as possible, and any additional Public Directors
of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall
coincide with the remaining term of that class. Any decrease in the
number of directors, however, may not have the effect of
shortening the term of any incumbent director. In addition, the Partnership Board must maintain at
least three directors meeting the independence and experience requirements of any national
securities exchange on which the Partnership LP units are listed or quoted.
Annual meetings of the Partnerships limited partners for the election of directors to the
Partnership Board, and such other matters as the Partnership Board submits to a vote of the limited
partners, will be held on the first Tuesday in June of each year or on such other date as is fixed
by the Partnership GP. Unitholders may vote either in person or by proxy at meetings. The holders
of a majority of the outstanding Partnership LP units, represented in person or by proxy, will
constitute a quorum.
For purposes of determining the holders of Partnership LP units entitled to notice of or to
vote at any meeting or to give approvals without a meeting, the Partnership GP may set a record
date, which date for purposes of notice of a meeting shall not be less than 10 days nor more than
60 days before the date of the meeting.
Any
action that is required or permitted to be taken by the Partnerships unitholders may be taken
either at a meeting of the Partnerships unitholders or without a meeting if approvals in writing
describing the action so taken are signed by holders of the number of units necessary to authorize
or take that action at a meeting, except that election of directors
by the Partnerships unitholders may only be done
at a meeting. Special meetings of the Partnerships unitholders
may be called by the Partnership GP or by the
Partnerships unitholders owning at least 20% of the outstanding Partnership LP units.
Except as described below with respect to the election of directors, each record holder of
Partnership LP units has one vote per Partnership LP unit, although additional limited partner
interests having special voting rights could be issued. Partnership LP units held in nominee or
street name account will be voted by the broker or other nominee in accordance with the instruction
of the beneficial owner unless the arrangement between the beneficial owner and its nominee
provides otherwise.
With
respect to the election of directors, the Partnership Agreement provides that if, at any
time, any person or group beneficially owns 20% or more of the outstanding Partnership LP units,
then all Partnership LP units owned by such person or group in excess of 20% of the outstanding
Partnership LP units may not be voted, and in each case, the foregoing units will not be counted
when calculating the required votes for such matter and will not be deemed to be outstanding for
purposes of determining a quorum for such meeting. Such Partnership LP units are not treated as a
separate class for purposes of the Partnership Agreement. Notwithstanding the foregoing, the
Partnership Board may, by action specifically referencing votes for the election of directors,
determine that the limitation described above will not apply to a specific person or group.
Nominations of persons for election as Public Directors may be made at an annual meeting of
the Partnerships unitholders only (a) by or at the direction of the Public Directors or any committee
thereof or (b) by any Public Limited Partner who (i) was a record holder at the time the notice
provided for in the Partnership Agreement is delivered to the Partnership GP, (ii) is entitled to
vote at the meeting and (iii) complies with the notice procedures set forth in the Partnership
Agreement.
For any nominations brought before an annual meeting by a Public Limited Partner, the limited
partner must give timely notice thereof in writing to the Partnership GP. The notice must contain
certain information as described in the Partnership Agreement. To be timely, a Public Limited Partners notice must be
delivered to the Partnership
GP not later than the close of business on the ninetieth (90th) day,
nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first
anniversary of the preceding years annual meeting (provided,
however, that, in the event that the
date of the annual meeting is more than thirty (30) days before or more than seventy (70) days
after such anniversary date, notice by the limited partner must be delivered not earlier than
the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not
later than the close of business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day on which public announcement of the date of such
meeting is first made by the Partnership or the Partnership GP). For purposes of the 2011 annual
meeting, the first anniversary of the preceding years annual meeting will be deemed to be June 1,
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 Public Limited Partners notice
as described above.
In the event that the number of Public Directors is increased effective at an annual meeting
of the Partnerships unitholders and there is no public announcement by the Partnership or the
Partnership GP naming the nominees for the additional directorships at least one hundred (100) days
prior to the first anniversary of the preceding years annual meeting, a Public Limited Partners
notice will also be considered timely, but only with respect to nominees for the additional
directorships, if it is delivered to the Partnership GP not later than the close of business on the
tenth (10th) day following the day on which such public announcement is first made by the
Partnership or the Partnership GP.
Nominations of persons for election as Public Directors also may be made at a special meeting
of the Partnerships unitholders at which 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 the Partnerships unitholders to serve as Public Directors. Notwithstanding the foregoing, unless otherwise
required by law, if the nominating Public Limited Partner (or a qualified representative of the limited
partner) does not appear at the annual or special meeting of the Partnerships unitholders to present a
nomination, such nomination will be disregarded notwithstanding that proxies in respect of such
vote may have been received by the Partnership GP or the Partnership.
In addition to the provisions described above and in the Partnership Agreement, a Public
Limited Partner must also comply with all applicable requirements of the Securities Exchange Act of
1934 (the Exchange Act) and the rules and regulations thereunder; 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 disclosure contained in this Item 8.01 does not purport to be a complete description of
the Partnership Agreement and is qualified in its entirety by reference to the Partnership
Agreement, which is filed as Exhibit 3.1 hereto and is incorporated herein by reference.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
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(d) |
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Exhibits. |
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3.1
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Amended and Restated Agreement of Limited Partnership of Buckeye
Partners, L.P., dated as of November 19, 2010 (Incorporated by
reference to Exhibit 3.1 of Buckeye Partners, L.P.s Current Report on
Form 8-K filed on November 22, 2010). |
SIGNATURE
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.
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BUCKEYE PARTNERS, L.P.
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By: |
Buckeye GP LLC,
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its General Partner |
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By: |
/s/ William H. Schmidt, Jr.
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William H. Schmidt, Jr. |
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Vice President and General Counsel |
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Dated December 2, 2010
Exhibit Index
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Exhibits. |
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3.1
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Amended and Restated Agreement of Limited Partnership of
Buckeye Partners, L.P., dated as of November 19, 2010
(Incorporated by reference to Exhibit 3.1 of Buckeye
Partners, L.P.s Current Report on Form 8-K filed on
November 22, 2010). |