On May 10, 2019, Buckeye Partners, L.P. (the Partnership or Buckeye), entered
into an Agreement and Plan of Merger (the merger agreement) with Hercules Intermediate Holdings LLC, a Delaware limited liability company (Parent), Hercules Merger Sub LLC, a Delaware limited liability company and a wholly
owned subsidiary of Parent (Merger Sub), Buckeye Pipe Line Services Company, a Pennsylvania corporation (ServiceCo), and Buckeye GP LLC, a Delaware limited liability company and the general partner of the Partnership (the
General Partner). Subject to the terms and conditions of the merger agreement, Merger Sub will be merged with and into the Partnership (the merger), with the Partnership surviving the merger as a subsidiary of Parent.
Since the May 10, 2019 announcement of the merger agreement, six putative class action complaints and two individual complaints have been filed against
Buckeye and the members of the board of directors of the General Partner (the Board). The eight complaints are captioned as follows:
Harry Curtis, individually and on behalf of all others similarly situated, v. Buckeye Partners, L.P.,
et al.
, Case No.
4:19-cv-2147
(filed on June 13, 2019 in the United States District Court for the Southern District of Texas, Houston Division, the Curtis
Action),
Michael Kent, individually and on behalf of all others similarly situated, v. Buckeye Partners, L.P., et al.
, Case No.
1:19-cv-01128
(filed on
June 18, 2019 in the United States District Court for the District of Delaware, the Kent Action),
John Greer v. Buckeye Partners, L.P., et al.
, Case No.
1:19-cv-05741
(filed on June 19, 2019 in the United States District Court for the Southern District of New York, the Greer Action),
Anthony Luers v.
Buckeye Partners, L.P., et al.
, Case No.
1:19-cv-05767
(filed on June 20, 2019 in the United States District Court for the Southern District of New York, the
Luers Action),
Michael Weston, individually and on behalf of all others similarly situated, v. Buckeye Partners, L.P., et al.
, Case No.
1:19-cv-01208
(filed on June 26, 2019 in the United States District Court for the District of Delaware, the Weston Action),
Heather McManus, individually and on behalf of all others similarly situated, v. Buckeye Partners, L.P., et al.
,
Case No.
1:19-cv-06000
(filed on June 26, 2019 in the United States District Court for the Southern District of New York, the McManus Action),
John
Ingalls, individually and on behalf of all others similarly situated, v. Buckeye Partners, L.P., et al.
, Case No.
1:19-cv-06098
(filed on June 28, 2019 in the
United States District Court for the Southern District of New York, the Ingalls Action) and
Michael Riss, on behalf of himself and all others similarly situated, v. Buckeye Partners, L.P., et al.
, Case No.
1:19-cv-01241
(filed on June 28, 2019 in the United States District Court for the District of Delaware, the Riss Action, collectively with the Curtis Action,
the Kent Action, the Greer Action, the Luers Action, the Weston Action, the MaManus Action and the Ingalls Action, the Federal Merger Litigation).
The Curtis Action alleges, among other things, that in pursuing the merger, the Board breached its express and implied contractual duties pursuant to the
Amended and Restated Agreement of Limited Partnership of the Partnership dated as of November 19, 2010, as amended, and its fiduciary duties to the unitholders of the Partnership in agreeing to enter into the merger agreement by means of an
allegedly unfair process and for an allegedly unfair price. Each of the Federal Merger Litigation further alleges that (i) the Partnerships definitive proxy statement filed with the Securities and Exchange Commission on June 25, 2019
(the proxy statement), omits material information with respect to the merger, rendering it false and misleading and, as a result, that the Partnership and the members of the Board violated Section 14(a) of the Exchange Act, and Rule
14a-9
promulgated thereunder, and (ii) the members of the Board, as alleged control persons of the Partnership, violated Section 20(a) of the Exchange Act in connection with the filing of the
allegedly materially deficient proxy statement. The Federal Merger Litigation seeks various remedies, including, among other things, injunctive relief to prevent the consummation of the merger unless certain allegedly material information is
disclosed, an order directing that the Board disseminates a proxy statement that does not contain any untrue statements of material fact and that states all material facts required or necessary to make the statements contained therein not
misleading, an order rescinding the consummation of the merger or an award of rescissory damages (in the event the merger is consummated), a declaration that the defendants violated Sections 14(a) and/or 20(a) of the Exchange Act, as well as Rule
14a-9
promulgated thereunder, an order directing defendants to account for all damages sustained, and an award of damages and an award of attorneys and experts fees and expenses.
The Partnership believes that the claims asserted in the Federal Merger Litigation are without merit and no supplemental disclosure is required under
applicable law. However, in order to avoid the risk of the Federal Merger Litigation delaying or adversely affecting the merger and to minimize the costs, risks and uncertainties inherent in litigation, and without admitting any liability or
wrongdoing, the Partnership has determined to voluntarily supplement the proxy statement as described in this Current Report on Form
8-K.
Nothing in this Current Report on Form
8-K
shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, the Partnership specifically denies all allegations in
the Federal Merger Litigation that any additional disclosure was or is required.