- Current report filing (8-K)
July 08 2011 - 5:02PM
Edgar (US Regulatory)
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): July 1, 2011
K-SEA TRANSPORTATION PARTNERS L.P.
(Exact name of registrant as specified in its charter)
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Delaware
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001-31920
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20-0194477
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(State or other jurisdiction
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(Commission File Number)
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(IRS Employer
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of incorporation)
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Identification No.)
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One Town Center Boulevard, 17
th
Floor
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East Brunswick, New Jersey
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08816
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
(732) 565-3818
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:
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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))
TABLE OF CONTENTS
Introductory Note
As previously disclosed, K-Sea Transportation Partners L.P. (the Partnership), K-Sea General
Partner L.P., a Delaware limited partnership and the general partner of the Partnership (the
General Partner), K-Sea General Partner GP LLC, a Delaware limited liability company and the
general partner of the General Partner (GP LLC), K-Sea IDR Holdings LLC, a Delaware limited
liability company and wholly owned subsidiary of the General Partner (IDR Holdings), Kirby
Corporation, a Nevada corporation (Kirby), KSP Holding Sub, LLC, a Delaware limited liability
company and direct wholly owned subsidiary of Kirby (Holding
Sub), KSP LP Sub, LLC, a Delaware limited liability company and direct wholly owned
subsidiary of Kirby (LP Sub), and KSP Merger Sub, LLC, a Delaware limited liability company
wholly owned by Holding Sub and LP Sub (Merger Sub), entered into an Agreement and Plan of
Merger, dated March 13, 2011 (the Merger Agreement). On July 1, 2011, the transactions
contemplated by the Merger Agreement closed, Merger Sub merged with and into the Partnership (the
Merger), the separate existence of Merger Sub ceased and the Partnership survived as a Delaware
limited partnership and as an indirect wholly owned subsidiary of Kirby.
Item 1.02 Termination of a Material Definitive Agreement.
In connection with the closing of the Merger, on July 1, 2011 the following agreements were
terminated:
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Amended and Restated Loan and Security Agreement, dated August 24, 2007, among
K-Sea Operating Partnership L.P., as borrower, KeyBank National Association, as
administrative agent and collateral trustee, Bank of America, N.A. (successor to
LaSalle Bank National Association) and Citibank, N.A., as co-syndication agents,
Citizens Bank of Pennsylvania and HSBC Bank USA, National Association, as
co-documentation agents, and the lenders party thereto, as amended. No borrowings
were outstanding under this agreement at the effective time of the Merger;
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Master Loan and Security Agreement dated as of April 3, 2006 by and among
K-Sea Operating Partnership L.P., as Borrower, Key Equipment Finance Inc., as
Lender, and K-Sea Transportation Partners L.P., K-Sea Transportation Inc. and Sea
Coast Transportation LLC, as Guarantors. No borrowings were outstanding under
this agreement at the effective time of the Merger; and
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The Partnerships Deferred Compensation Plan and Employee Unit Purchase Plan.
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Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the completion of the Merger, the Partnership (i) notified the New York
Stock Exchange (the NYSE) on July 1, 2011 that the Merger was effected and that all outstanding
common units of the Partnership were cancelled and converted in the Merger into the right to
receive the applicable consideration as described in the Merger Agreement and (ii) requested that
the NYSE file a notification of removal from listing on Form 25 with the Securities and Exchange
Commission (the SEC) to report that the common units of the Partnership are no longer listed on
the NYSE. The trading of common units of the Partnership on the NYSE was suspended from trading
before the opening of the market on July 5, 2011, and the NYSE filed the Form 25 with the SEC on
July 6, 2011. The disclosure under Item 3.03 is incorporated herein by reference.
Item 3.03 Material Modification to Rights of Security Holders.
The Merger Agreement was approved at a special meeting of the unitholders of the Partnership
held on July 1, 2011. The Partnership completed the Merger following approval of the Merger by the
common unitholders and preferred unitholders of the Partnership entitled to vote at the meeting.
Pursuant to the terms of the Merger Agreement and effective as of July 1, 2011, each
outstanding common unit of the Partnership was converted in the Merger into the right to receive
the applicable consideration as described in the Merger Agreement. Unitholders of the Partnership
who failed to make a valid election by the election deadline, which was June 28, 2011, are deemed
to have made an all cash election.
The consideration paid by Kirby in connection with the Merger consisted of (i) approximately
$228.0 million of cash paid to the Partnerships common and preferred unitholders, the General
Partner and IDR Holdings, (ii) approximately $113.0 million through the issuance of shares of
Kirbys common stock to the Partnerships preferred unitholders and certain of the Partnerships
common unitholders, and (iii) approximately $263.0 million of cash paid to retire the Partnerships
outstanding debt. The Merger was financed by Kirby through a new $54.0 million term
loan entered into with a group of commercial banks and the issuance of Kirbys common stock.
Upon the effective time of the Merger, holders of the Partnerships common units
immediately prior to the effective time of the Merger ceased to have any rights as unitholders of
the Partnership (other than their right to receive the applicable merger consideration as described
in the Merger Agreement).
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The foregoing description of the Merger and the Merger Agreement does not purport to be
complete and is subject to, and qualified in its entirety by, the full text of the Merger
Agreement, which was attached as Exhibit 2.1 to the Partnerships Current Report on Form 8-K filed
with the SEC on March 13, 2011 and which is incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
As a result of the Merger, a change of control of the Partnership occurred. Merger Sub merged
with and into the Partnership, the separate existence of Merger Sub ceased and the Partnership
survived as a Delaware limited partnership and as a wholly owned subsidiary of Kirby. The
disclosures under the Introductory Note and Item 3.03 are incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
On July 1, 2011 prior to the Merger, each of the Employment Agreements dated as of January 14,
2004 between K-Sea Transportation Inc. and Timothy J. Casey, Richard P. Falcinelli and Thomas M.
Sullivan, respectively, were amended to extend the employment terms of such persons by one year
following the Merger, and to provide severance benefits in the event their employment is terminated
without cause or for good reason under such agreements. In addition, on July 1, 2011, prior to the
Merger, K-Sea Transportation Inc. entered into Severance Agreements with each of Terrence P. Gill
and Gregory J. Haslinsky, which provide that if such persons are terminated without cause or they
terminate their employment for good reason within one year following the Merger, they will be
entitled to eighteen months base salary and target bonus as severance. Under such Employment
Agreements and such Severance Agreements, good reason means (a) a material diminution in scope of
responsibilities as in effect immediately prior to the Merger, (b) material diminution in
compensation opportunities or (c) relocation of the officers principal work location by 75 miles
or more.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Fifth Amended and Restated Limited Partnership Agreement of the Partnership
In connection with the closing of the Merger and pursuant to the Merger Agreement, on July 1,
2011, at the effective time of the Merger (i) Holding Subs limited liability company interest in
Merger Sub was converted into and became a 1% general partner interest in the Partnership and
Holding Sub was admitted to the Partnership as the sole general partner, (ii) LP Subs limited
liability company interest in Merger Sub was converted into and became a 99% limited partner
interest in the Partnership and LP Sub was admitted to the Partnership as the sole limited partner
and (iii) Holding Sub and LP Sub automatically became bound by the Fifth Amended and Restated
Limited Partnership Agreement of the Partnership.
The Fifth Amended and Restated Limited Partnership Agreement of the Partnership reflects the
results of the Merger including the cancellation of the incentive distribution rights of the
Partnership held by the General Partner, the cancellation of the preferred units and the rights,
preferences, privileges and terms of such preferred units, the admission of LP Sub to the
Partnership as the sole limited partner, the admission of Holding Sub as the successor general
partner of the Partnership and the elimination of certain legacy provisions.
The description of the Fifth Amended and Restated Limited Partnership Agreement of the
Partnership in this Item 5.03 is qualified in its entirety by reference to the full text of such
agreement, which is filed as Exhibit 3.1 hereto and incorporated herein by reference.
Amendment to Certificate of Limited Partnership of the Partnership
On July 1, 2011, after the consummation of the Merger, the Partnership filed a Certificate of
Amendment to Certificate of Limited Partnership of the Partnership reflecting the admission of
Holding Sub as the new general partner of the Partnership. A copy of the Certificate of Amendment
to Certificate of Limited Partnership of the Partnership is filed as Exhibit 3.2 hereto and
incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
A special meeting of the Partnerships unitholders was held on July 1, 2011 at which the
following three matters were voted upon and approved by the Partnerships unitholders:
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The first matter voted upon was the approval of the Merger Agreement and the transactions
contemplated thereby, including the Merger. With respect to the first matter voted upon, 29,829,241
of the outstanding common units of the Partnership and the outstanding preferred units of the
Partnership (voting on an as-converted to common units basis), voting
together as a single class,
voted For, 339,373 of such units voted Against and 28,769 of such units abstained. All of the
outstanding preferred units of the Partnership voted For such matter;
The second matter voted upon was the approval of the Amended and Restated K-Sea Transportation
Partners L.P. Long-Term Incentive Plan. With respect to the second matter voted upon, 29,664,938 of
the outstanding common units of the Partnership and the outstanding preferred units of the
Partnership (voting on an as-converted to common units basis), voting
together as a single class,
voted For, 456,786 of such units voted Against and 75,658 of such units abstained; and
The third matter voted upon was an advisory vote on the compensation to be received by the
executive officers of GP LLC in connection with the Merger. With respect to third matter voted
upon, 28,567,002 of the outstanding common units of the Partnership and the outstanding preferred
units of the Partnership (voting on an as-converted to common units basis), voting together as a
single class, voted For, 614,929 of such units voted Against and 1,015,452 of such units
abstained.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit
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Number
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Description
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2.1
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Agreement and Plan of Merger, dated March 13, 2011, by and among,
K-Sea Transportation Partners L.P., K-Sea General Partner L.P.,
K-Sea General Partner GP LLC, K-Sea IDR Holdings LLC, Kirby
Corporation, KSP Holding Sub, LLC, KSP LP Sub, LLC and KSP Merger
Sub, LLC (incorporated by reference to Exhibit 2.1 to Form 8-K
filed by the Partnership on March 13, 2011)
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3.1
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Fifth Amended and Restated Limited Partnership Agreement of K-Sea
Transportation Partners L.P., dated as of July 1, 2011
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3.2
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Certificate of Amendment to Certificate of Limited Partnership of
K-Sea Transportation Partners L.P., dated as of July 1, 2011
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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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K-SEA TRANSPORTATION PARTNERS L.P.
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By:
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KSP Holding Sub, LLC,
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its general partner
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Date: July 8, 2011
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By:
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/s/ David W. Grzebinski
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David W. Grzebinski
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Manager
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Exhibit Index
(d) Exhibits.
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Exhibit
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Number
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Description
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2.1
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Agreement and Plan of Merger, dated March 13, 2011, by and among,
K-Sea Transportation Partners L.P., K-Sea General Partner L.P.,
K-Sea General Partner GP LLC, K-Sea IDR Holdings LLC, Kirby
Corporation, KSP Holding Sub, LLC, KSP LP Sub, LLC and KSP Merger
Sub, LLC (incorporated by reference to Exhibit 2.1 to Form 8-K
filed by the Partnership on March 13, 2011)
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3.1
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Fifth Amended and Restated Limited Partnership Agreement of K-Sea
Transportation Partners L.P., dated as of July 1, 2011
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3.2
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Certificate of Amendment to Certificate of Limited Partnership of
K-Sea Transportation Partners L.P., dated as of July 1, 2011
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