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): November 3, 2010 (October 29, 2010)
Buckeye GP Holdings L.P.
(Exact Name of Registrant as Specified in Charter)
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Delaware
(State or Other
Jurisdiction of
Incorporation)
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001-32963
(Commission File
Number)
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11-3776228
(I.R.S. Employer
Identification No.) |
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One Greenway Plaza
Suite 600
Houston, TX
(Address of Principal Executive Offices)
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77046
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Registrant’s 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))
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TABLE OF CONTENTS
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
Buckeye GP Holdings L.P. (“Holdings”) previously disclosed that on August 18, 2010, Holdings,
MainLine Management LLC, Holdings’ general partner (“Holdings GP”), Buckeye Partners, L.P. (the
“Partnership”), Buckeye GP LLC, the Partnership’s general partner (the “Partnership GP”), and Grand
Ohio, LLC (“MergerCo”) entered into a First Amended and Restated Agreement and Plan of Merger (the
“Merger Agreement”), pursuant to which MergerCo will be merged into Holdings, with Holdings as the
surviving entity (the “Merger”), the incentive compensation agreement (also referred to as the
incentive distribution rights) held by the Partnership GP will be extinguished, the general partner
units held by the Partnership GP (representing an approximate 0.5% general partner interest in the
Partnership) will be converted to a noneconomic interest, all of the economic interest in Holdings
will be acquired by the Partnership, and Holdings unitholders will receive aggregate consideration
of approximately 20 million units representing limited partner interests in the Partnership.
First Amendment to the Merger Agreement
On October 29, 2010, the parties to the Merger Agreement entered into a First Amendment to the
Merger Agreement (the “Amendment”) to reduce the termination fee that is payable in certain
circumstances by Holdings or the Partnership from $29 million to $22 million.
The foregoing description of the Amendment is qualified in its entirety by reference to the
Amendment, which is filed as Exhibit 2.1 hereto and is incorporated into this report by reference.
ITEM 8.01 OTHER EVENTS
Memorandum of Understanding
Holdings previously disclosed that on August 24, 2010, the District Court of Harris County,
Texas, entered an order consolidating three previously filed putative class actions under the
caption of Broadbased Equities v. Forrest E. Wylie, et al. and appointing interim co-lead class
counsel and interim co-liaison counsel. The plaintiffs subsequently filed a consolidated amended
class action and derivative complaint on September 1, 2010 (the “Complaint”). The Complaint
purports to be a putative class and derivative action alleging that Holdings GP and its directors
breached their fiduciary duties to Holdings’ public unitholders in connection with the Merger by,
among other things, accepting insufficient consideration and failing to disclose all material facts
in order that Holdings’ unitholders may cast an informed vote on the Merger Agreement, and that the
Partnership, Partnership GP, Holdings GP, MergerCo, BGH GP Holdings, LLC, ArcLight Capital
Partners, LLC, and Kelso & Company, aided and abetted the breaches of fiduciary duty.
On October 29, 2010, the parties to the litigation entered into a Memorandum of Understanding
(“MOU”) in connection with a proposed settlement of the class action and the Complaint. The MOU
provides for dismissal with prejudice of the litigation and a release of the defendants from all
present and future claims asserted in the litigation in exchange for, among other things, the
agreement of the defendants to amend the Merger Agreement to reduce the termination fees payable by
Holdings upon termination of the Merger Agreement and to provide Holdings’ unitholders with
supplemental disclosure to Holdings and the Partnership’s joint proxy statement/prospectus, dated
September 24, 2010. The supplemental disclosure is set forth in a joint proxy statement/prospectus
supplement, dated October 29, 2010, that was filed with the Securities and Exchange Commission (the
“SEC”) on November 1, 2010.
In addition, the MOU provides that, in settlement of the plaintiffs’ claims (including any
claim against the defendants by the plaintiffs’ counsel for attorneys’ fees or expenses related to
the litigation), the defendants (or their insurers) will pay a cash payment of $900,000, subject to
final court approval of the settlement. The proposed settlement is subject to further definitive
documentation and to a number of conditions, including, without limitation, completion of certain
confirmatory discovery by the plaintiffs, the drafting and execution of a formal Stipulation of
Settlement, the consummation of the Merger and court approval of the proposed settlement. There is
no assurance that these conditions will be satisfied.
The foregoing description of the MOU does not purport to be complete and is qualified in its
entirety by reference to the MOU, which is filed as Exhibit 10.1 hereto and is incorporated into
this report by reference.
The following text is required by SEC rules:
Holdings and the Partnership have filed a joint proxy statement/prospectus, joint proxy
statement/prospectus supplement and other documents with the SEC in relation to the Merger.
Investors are urged to read these documents carefully because they contain important information
regarding Holdings, the Partnership, and the transaction. The joint proxy statement/prospectus and
joint proxy statement/prospectus supplement were sent to unitholders of Holdings and the
Partnership seeking their approvals as contemplated by the Merger Agreement. Investors may obtain a
free copy of the joint proxy statement/prospectus, the joint proxy statement/prospectus supplement,
and other documents containing information about the Partnership and Holdings, without charge, at
the SEC’s website at www.sec.gov. Copies of the joint proxy statement/prospectus, the joint proxy
statement/prospectus supplement, and the SEC filings incorporated by reference in those documents
may also be obtained free of charge by contacting Investor Relations at (800) 422-2825, or by
accessing www.buckeye.com or www.buckeyegp.com.
Holdings, the Partnership, and the officers and directors of the Partnership GP and Holdings
GP may be deemed to be participants in the solicitation of proxies from their security holders.
Information about these entities and persons can be found in Holdings’ and the Partnership’s Annual
Reports on Form 10-K for the year ended December 31, 2009. Additional information about such
entities and persons may also be obtained from the joint proxy statement/prospectus and the joint
proxy statement/prospectus supplement.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(d)
Exhibits.
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| 2.1 |
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First Amendment to First Amended and Restated Agreement and Plan of
Merger, dated October 29, 2010, by and among Buckeye Partners, L.P.,
Buckeye GP LLC, Buckeye GP Holdings L.P., MainLine Management LLC and
Grand Ohio, LLC. |
| 10.1 |
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Memorandum of Understanding, dated October 29, 2010. |