SEC Form PREM14A filed by Martin Midstream Partners L.P. Limited Partnership

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of

the Securities Exchange Act of 1934

 

 

Filed by the Registrant ☒

Filed by a Party other than the Registrant ☐

Check the appropriate box:

 

☒	Preliminary Proxy Statement

 

☐	Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

 

☐	Definitive Proxy Statement

 

☐	Definitive Additional Materials

 

☐	Soliciting Material under §240.14a-12

MARTIN MIDSTREAM PARTNERS L.P.

(Name of Registrant as Specified In Its Charter)

N/A

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check all boxes that apply):

 

☐	No fee required

 

☐	Fee paid previously with preliminary materials

 

☒	Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11

 

 

 

PRELIMINARY PROXY MATERIALS DATED OCTOBER 25, 2024

— SUBJECT TO COMPLETION

 

 

Martin Midstream Partners L.P.

4200 B Stone Road

Kilgore, Texas 75662

MERGER PROPOSAL — YOUR VOTE IS VERY IMPORTANT

[●], 2024

Dear Unitholders:

You are cordially invited to attend a special meeting of the common unitholders of Martin Midstream Partners L.P. a Delaware limited partnership (the “Partnership”), which we will hold at [●] (local time), on [●], 2024, at the Partnership’s office located at 4200 B Stone Road, Kilgore, Texas 75662. Formal notice of the special meeting, a proxy statement and a proxy card accompany this letter.

At the special meeting, the limited partners of the Partnership (the “Unitholders”) will be asked to consider and vote upon a proposal to approve the Agreement and Plan of Merger, dated as of October 3, 2024 (the “Merger Agreement”), by and among Martin Resource Management Corporation, a Texas corporation (“Parent”), MRMC Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“Merger Sub”), the Partnership and Martin Midstream GP LLC, a Delaware limited liability company and the general partner of the Partnership (the “General Partner”), and the merger of Merger Sub with and into the Partnership, with the Partnership surviving as a wholly owned subsidiary of Parent (the “Merger”). If the Merger is completed, and upon the satisfaction of the conditions set forth in the Merger Agreement, each issued and outstanding common unit representing a limited partner interest in the Partnership (each, a “Common Unit”) other than Common Units owned by Parent and its subsidiaries, including the General Partner (each, a “Public Common Unit”), will be converted into the right to receive $4.02 in cash without any interest (the “Merger Consideration”).

The proposed Merger is a “going-private” transaction under the rules of the U.S. Securities and Exchange Commission (the “SEC”). As of the close of business on [●], the record date for the special meeting, approximately [●]% of the Common Units were owned collectively by Parent (indirectly through certain of its subsidiaries), Ruben S. Martin, III (the Chairman of the Board of Directors of the General Partner (the “GP Board”), Senterfitt Holdings Inc. (“Senterfitt”), a Texas corporation wholly owned by Mr. Martin, and Robert D. Bondurant (the President and Chief Executive Officer of the General Partner) (together, the “Support Parties”). Mr. Martin is also the President and Chief Executive Officer and a Director of Parent, and Mr. Bondurant is also a Director of Parent. Each of the Support Parties has entered into a Support Agreement (collectively, the “Support Agreements”) with the Partnership pursuant to which such Support Party has agreed to vote or cause the Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement.

The GP Board delegated to the Conflicts Committee of the GP Board, consisting of three independent directors who meet the qualifications set forth in the Third Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of November 23, 2021 and the Conflicts Committee Charter for membership on the Conflicts Committee, the power and authority, among other things, to determine whether the transaction is fair and reasonable to, and in the best interest of, the Partnership and the holders of the Common Units (other than the General Partner, Parent and their respective affiliates (other than the Partnership and its subsidiaries), including any officer, director, equityholder or member thereof) and to review, evaluate and negotiate (or to supervise and direct the negotiations on behalf of the Partnership with respect to) the terms and conditions of the transaction (as described more fully in the accompanying proxy statement). The GP Board, after considering various factors, including the unanimous determination and recommendation of the Conflicts Committee, has unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the holders of the Public Common Units (other than Senterfitt, Ruben S. Martin, III and the other directors and

officers of Parent) (the “Partnership Unaffiliated Unitholders”) and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) authorized and directed that approval of the Merger Agreement and the Merger be submitted to a vote of the Unitholders and (iv) recommended approval of the Merger Agreement and the Merger by the Unitholders. Accordingly, the GP Board recommends that the Unitholders vote “FOR” the approval of the Merger Agreement and the Merger.

The accompanying proxy statement describes the Merger Agreement, the Merger and related agreements and provides specific information concerning the special meeting. In addition, you may obtain information about us from documents filed with the SEC. We urge you to read the entire proxy statement, including the annexes, carefully, as it sets forth the details of the Merger Agreement and other important information related to the Merger.

In considering the recommendation of the GP Board, you should be aware that certain of the General Partner’s directors and executive officers have interests in the Merger that are different from, or in addition to, the interests of our Unitholders generally as further described in the accompanying proxy statement.

Your vote is very important, regardless of the number of Common Units you own. The affirmative vote of the holders of at least a majority of the issued and outstanding Common Units is required to approve the Merger Agreement and the Merger. Your failure to vote your Common Units will have the same effect as a vote “AGAINST” the approval of the Merger Agreement and the Merger.

If you own Common Units of record, you will find enclosed a proxy card or cards and an envelope in which to return the card(s). Whether or not you plan to attend this meeting, please mark, sign, date and return your enclosed proxy card(s), or vote via the Internet or over the phone, as soon as possible so that your Common Units can be voted at the meeting in accordance with your instructions. You can revoke your proxy before the special meeting and issue a new proxy as you deem appropriate. You will find the procedures to follow if you wish to revoke your proxy in the accompanying proxy statement.

If you hold your Common Units in “street name” through a broker, bank or other nominee, you should follow the directions provided by your broker, bank or other nominee regarding how to instruct your broker, bank or other nominee to vote your Common Units. If you do not provide instructions, your Common Units will not be voted, which will have the same effect as voting “AGAINST” the proposal to approve the Merger Agreement and Merger.

If you have any questions or need assistance voting your Common Units, please contact our proxy solicitation agent:

Innisfree M&A Incorporated

501 Madison Avenue, 20^th Floor

New York, New York 10022

Unitholders may call toll free: (877) 750-8334

Banks and Brokers may call collect: (212) 750-5833

Thank you for your cooperating and we look forward to the successful completion of the Merger.

Sincerely yours,

Robert D. Bondurant

President and Chief Executive Officer of Martin

Midstream GP LLC, on behalf of Martin

Midstream Partners L.P.

Neither the SEC nor any state securities commission has approved or disapproved of the Merger; passed upon the merits or fairness of the Merger; or passed upon the adequacy or accuracy of the disclosure in the accompanying proxy statement. Any representation to the contrary is a criminal offense.

The obligations of the Partnership, Parent and Merger Sub to complete the Merger are subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, a copy of which is included as part of the accompanying proxy statement.

The accompanying proxy statement is dated [●], 2024 and, together with the enclosed form of proxy, is first being mailed to the Partnership’s Unitholders on [●], 2024.

PRELIMINARY PROXY MATERIALS DATED OCTOBER 25, 2024

— SUBJECT TO COMPLETION

 

 

Martin Midstream Partners L.P.

4200 B Stone Road

Kilgore, Texas 75662

NOTICE OF SPECIAL MEETING OF UNITHOLDERS

TO BE HELD ON [●], 2024

Notice is hereby given that Martin Midstream Partners L.P., a Delaware limited partnership (the “Partnership”) will hold a special meeting of its common unitholders at the Partnership’s office located at 4200 B Stone Road, Kilgore, Texas 75662, on [●], 2024, beginning at [●] (local time) (the “Special Meeting”), for the purpose of considering and voting on the following matters:

 

•

Merger Proposal: To consider and vote on a proposal to approve the Agreement and Plan of Merger, dated as of October 3, 2024 (the “Merger Agreement”), by and among Martin Resource Management Corporation, a Texas corporation (“Parent”), MRMC Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (“Merger Sub”), the Partnership, and Martin Midstream GP LLC, a Delaware limited liability company and the general partner of the Partnership (the “General Partner”), a copy of which is attached as Annex A to the proxy statement accompanying this notice, as such agreement may be amended from time to time, and the merger of Merger Sub with and into the Partnership, with the Partnership surviving as a wholly owned subsidiary of Parent (the “Merger”); and

 

•

Adjournment Proposal: To consider and vote on a proposal to approve the adjournment of the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes to approve the Merger Agreement and the Merger, at the time of the Special Meeting.

These items of business are more fully described in the accompanying proxy statement.

The Merger Agreement provides that, at the effective time of the Merger, each issued and outstanding common unit representing a limited partner interest in the Partnership (each, a “Common Unit”) other than Common Units owned by Parent and its subsidiaries, including the General Partner (each, a “Public Common Unit”) will be converted into the right to receive $4.02 in cash without any interest (the “Merger Consideration”). The Merger Consideration and treatment of the Partnership’s Common Units and the Partnership’s restricted units, phantom units and phantom unit appreciation rights under the Martin Midstream Partners L.P. 2017 Restricted Unit Plan (the “Partnership Restricted Unit Plan”) and the Martin Midstream Partners L.P. 2021 Phantom Unit Plan (the “Partnership Phantom Unit Plan”), are more fully described in the accompanying proxy statement.

The Conflicts Committee (the “Conflicts Committee”) of the Board of Directors of the General Partner (the “GP Board”), consisting of three independent directors that satisfy the requirements for membership on the Conflicts Committee that are set forth in the Partnership Agreement (as defined below) and the Conflicts Committee Charter, has unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the holders of the Public Common Units (other than Senterfitt (as defined below), Ruben S. Martin, III and the other directors and officers of Parent) (the “Partnership Unaffiliated Unitholders”) and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders,

(ii) approved (such approval constituting “Special Approval” for all purposes under the Third Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of November 23, 2021 (the “Partnership Agreement”), including Section 7.9(a) thereof) the Merger Agreement, the Support Agreements (as defined below) and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) recommended that the GP Board approve the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iv) recommended that the GP Board submit the Merger Agreement and the Merger to a vote of the limited partners of the Partnership (the “Unitholders”) and (v) recommended, and recommended that the GP Board resolve to recommend, approval of the Merger Agreement and the Merger by the Unitholders. In determining to make its recommendation, the Conflicts Committee considered, among other things, the opinion of Houlihan Lokey, Inc. (“Houlihan Lokey”), the financial advisor to the Conflicts Committee, to the effect that, as of October 3, 2024, and based upon and subject to the assumptions, qualifications, limitations and other matters set forth therein, the Merger Consideration to be received by the Partnership Unaffiliated Unitholders pursuant to the Merger Agreement was fair, from a financial point of view, to the Partnership Unaffiliated Unitholders. The full text of the written opinion of Houlihan Lokey is attached to the accompanying proxy statement as Annex F.

The GP Board, after considering various factors, including the unanimous determination and recommendation of the Conflicts Committee, has unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) authorized and directed that approval of the Merger Agreement and the Merger be submitted to a vote of the Unitholders and (iv) recommended approval of the Merger Agreement and the Merger by the Unitholders. Accordingly, the GP Board recommends that the Unitholders vote “FOR” the Merger Proposal and vote “FOR” the Adjournment Proposal.

Only Unitholders of record as of the close of business on [●], 2024 are entitled to notice of the Special Meeting and to vote at the Special Meeting or at any adjournment or postponement thereof. A list of Unitholders entitled to vote at the Special Meeting will be available in the Partnership’s office located at 4200 B Stone Road, Kilgore, Texas 75662, during regular business hours for a period of 10 days before the Special Meeting, and at the place of the Special Meeting during the meeting.

Approval of the Merger Agreement and the Merger is a condition to the consummation of the Merger and requires the affirmative vote of holders of at least a majority of the issued and outstanding Common Units. Concurrently with the execution of the Merger Agreement, (i) the Partnership, Parent, Martin Resource LLC, a Delaware limited liability company (“Resource”), Cross Oil Refining & Marketing, Inc., a Delaware corporation (“Cross”), and Martin Product Sales LLC, a Texas limited liability company (“Martin Product,” and, together with Parent, Resource, and Cross the “Parent Group Support Entities”) entered into a support agreement included as Annex B in the accompanying proxy statement (the “Parent Group Support Agreement”), pursuant to which (a) Parent has agreed to cause Resource to vote or cause the 4,203,823 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement, (b) Parent has agreed to cause Cross to vote or cause the 889,444 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement, and (c) Parent has agreed to cause Martin Product to vote or cause the 1,021,265 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement; (ii) the Partnership and Senterfitt Holdings Inc. (“Senterfitt”), a Texas corporation wholly owned by Mr. Martin, entered into a support agreement included as Annex C in the accompanying proxy statement (the “Senterfitt Support Agreement”), pursuant to which Senterfitt has agreed to vote or cause the 3,726,607 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement; (iii) the Partnership and Robert D. Bondurant, entered into a support agreement included as Annex D in the accompanying proxy statement (the “Bondurant Support Agreement”), pursuant to which Mr. Bondurant has agreed to vote or cause the 149,296 Common Units he owns to be voted in favor of the Merger and the approval of the Merger Agreement; and (iv) the Partnership and Ruben S. Martin, III, entered into a support agreement included as Annex E in the accompanying proxy statement (the “Martin Support Agreement” and, together with the Parent Group Support Agreement, the

Senterfitt Support Agreement and the Bondurant Support Agreement, the “Support Agreements”), pursuant to which Mr. Martin has agreed to vote or cause the 159,350 Common Units he owns to be voted in favor of the Merger and the approval of the Merger Agreement. The Support Agreements entered into by each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin (together, the “Support Parties”) to vote their Common Units in favor of the Merger Agreement will not be sufficient to approve the Merger Agreement and the Merger on behalf of the holders of the Common Units, without also obtaining additional votes of other holders of the Common Units. As of [●], the record date for the special meeting, the Support Parties collectively owned approximately [●]% of the outstanding Common Units.

Unitholders will also vote on a proposal to adjourn the Special Meeting, if necessary, to solicit additional proxies if there are not sufficient votes to approve the Merger Agreement and the Merger, at the time of the Special Meeting.

Your vote is very important. Your failure to vote your Common Units will have the same effect as a vote “AGAINST” the approval of the Merger Agreement and the Merger and, if a quorum is present at the Special Meeting, the adjournment of the Special Meeting.

You can vote your Common Units by marking, signing and dating the enclosed proxy card and returning it in the prepaid envelope provided. Most Unitholders can also submit their proxies over the Internet or by telephone. If Internet and telephone submission are available to you, you can find instructions on the enclosed proxy card. You can revoke a proxy at any time prior to its exercise at the Special Meeting by voting a subsequent proxy or by following the instructions in the enclosed proxy statement.

If you hold your Common Units in “street name” through a broker, bank or other nominee, you should follow the directions provided by your broker, bank or other nominee regarding how to instruct your broker, bank or other nominee to vote your Common Units. If you do not provide instructions, your Common Units will not be voted, which will have the same effect as voting “AGAINST” the proposal to approve the Merger Agreement and Merger and, if a quorum is present at the Special Meeting, the adjournment of the Special Meeting.

The accompanying proxy statement is dated [●], 2024 and is first being mailed to Unitholders on or about [●], 2024.

Neither the Securities and Exchange Commission nor any state securities commission has; approved or disapproved the Merger; passed upon the merits of fairness of the Merger; or passed upon the adequacy or accuracy of the disclosure in this proxy statement. Any representation to the contrary is a criminal offense.

The obligations of the Partnership, Parent and Merger Sub to complete the Merger are subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, a copy of which is included as part of the accompanying proxy statement.

 

YOUR VOTE IS IMPORTANT!

WHETHER OR NOT YOU EXPECT TO ATTEND THE SPECIAL MEETING IN PERSON, WE URGE YOU TO SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE (i) BY TELEPHONE, (ii) VIA THE INTERNET OR (iii) BY MARKING, SIGNING AND DATING THE ENCLOSED PROXY CARD AND RETURNING IT IN THE PREPAID ENVELOPE PROVIDED. You may revoke your proxy or change your voting instructions at any time before the Special Meeting.

This proxy statement incorporates important business and financial information about the Partnership from documents filed with the Securities and Exchange Commission (the “SEC”) that are not included in or delivered with this proxy statement. You can obtain any of the documents filed with or furnished to the SEC by the Partnership at no cost from the SEC’s website at https://www.sec.gov. You may also request copies of these documents, including documents incorporated by reference into this proxy statement, at no cost by contacting the Partnership at the following address:

Martin Midstream Partners L.P.

4200 B Stone Road

Kilgore, Texas 75662

Attention: Secretary

Phone: (903) 983-6200

You will not be charged for any of these documents that you request. See “Where You Can Find More Information.”

We urge you to read the accompanying proxy statement, including all documents incorporated by reference into the accompanying proxy statement, and its annexes carefully and in their entirety. If you have any questions concerning the Merger Proposal, the Adjournment Proposal, the Special Meeting or the accompanying proxy statement or would like additional copies of the accompanying proxy statement or need help voting your Common Units, please contact the Partnership’s proxy solicitor:

Innisfree M&A Incorporated

501 Madison Avenue, 20^th Floor

New York, New York 10022

Unitholders may call toll free: (877) 750-8334

Banks and Brokers may call collect: (212) 750-5833

If you hold your Common Units in “street name” through a broker, bank or other nominee, you should follow the directions provided by your broker, bank or other nominee regarding how to instruct your broker, bank or other nominee to vote your Common Units, and please contact such broker, bank or other nominee for additional information.

TABLE OF CONTENTS

 

SUMMARY TERM SHEET			1
Parties to the Merger:			1
Relationship of the Parties to the Merger			2
The Merger			2
Merger Consideration			3
Effects of the Merger			3
Treatment of General Partner Interest			4
The Partnership Special Meeting			4
The Conflicts Committee and GP Board Recommendations and Reasons for the Merger			5
Houlihan Lokey Opinion to the Conflicts Committee			7
Interests of the Directors and Executive Officers of the General Partner in the Merger			7
Position of the Buyer Filing Parties as to the Fairness of the Merger			8
Wells Fargo Opinion to the Parent			8
Conditions to Completion of the Merger			9
Regulatory Approvals Required for the Merger			9
No Solicitation by the General Partner or the Partnership of Alternative Proposals			10
General Partner Recommendation and Partnership Adverse Recommendation Change			11
Termination of the Merger Agreement			11
Termination Fee; Expenses			13
Effect of Termination; Remedies			15
Financing of the Merger			15
Expenses Relating to the Merger			16
Material U.S. Federal Income Tax Consequences of the Merger			16
No Appraisal Rights			16
Delisting and Deregistration of Common Units			16
Organizational Structure Prior to the Merger			17
QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING			18
SPECIAL FACTORS			27
Effects of the Merger			27
Background of the Merger			28
Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties			47
Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal			49
Unaudited Financial Projections of the Partnership			59
Houlihan Lokey Opinion to the Conflicts Committee			63
Wells Fargo Opinion to the Parent			70
The Support Agreements			75
Interests of the Directors and Executive Officers of the General Partner in the Merger			75
Position of the Buyer Filing Parties as to the Fairness of the Merger			76
Purpose and Reasons of the Buyer Filing Parties for the Merger			79
Primary Benefits and Detriments of the Merger			80
Ownership of the Partnership After the Merger			82
Regulatory Approvals and Clearances Required for the Merger			82
Financing of the Merger			83
Fees and Expenses			84
Certain Legal Matters			84
Delisting and Deregistration of Common Units			84
No Appraisal Rights			84
Accounting Treatment of the Merger			84
Tax Consequence of the Merger to Unitholders			85

 

i

PROVISIONS FOR PARTNERSHIP UNAFFILIATED UNITHOLDERS			88
IMPORTANT INFORMATION REGARDING THE PARTNERSHIP			89
Historical Selected Financial Information			89
Book Value Per Common Unit			90
Market Price and Cash Distribution Information			90
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS			92
PARTIES TO THE MERGER			93
THE PARTNERSHIP SPECIAL MEETING			94
Date, Time and Place of the Special Meeting			94
Matters to be Considered at the Special Meeting			94
Recommendation of the Conflicts Committee			94
Recommendation of the GP Board			95
Who Can Vote at the Special Meeting			95
Quorum			95
Vote Required for Approval			95
Voting by Directors and Executive Officers of the General Partner			96
Voting by Buyer Filing Parties			96
Voting of Common Units by Holders of Record			96
Voting of Common Units Held in Street Name			97
Revocability of Proxies; Changing Your Vote			98
Solicitation of Proxies			98
Adjournments			98
Assistance			99
PROPOSAL NO. 1. THE MERGER PROPOSAL			100
The Merger Proposal			100
The Merger Agreement			100
The Merger			101
Effective Time; Closing			101
Conditions to Completion of the Merger			101
No Solicitation by the General Partner or the Partnership of Alternative Proposals			103
General Partner Recommendation and Partnership Adverse Recommendation Change			104
Partnership Unitholder Approval			105
The Merger Consideration			107
Treatment of Restricted Units, Phantom Units and Phantom Unit Appreciation Rights			107
Distributions			107
Surrender of Units			108
Adjustments to Prevent Dilution			108
Withholding			108
Filings			108
Termination			109
Effect of Termination; Remedies			111
Termination Fees; Expenses			111
Conduct of Business Pending the Merger			112
Indemnification; Directors’ and Officers’ Insurance			114
Conflicts Committee			115
Amendment and Supplement			115
Waiver and Consent			115
Remedies; Specific Performance			115
Representations and Warranties			116
Additional Agreements			117
No Golden Parachute or Other Compensation Payable to the Directors or Officers of the General Partner by the Parent, the General Partner or the Partnership in Connection with the Merger			117

 

ii

COMMON UNIT OWNERSHIP			118
Common Unit Ownership of Certain Beneficial Owners and Management			118
Common Unit Ownership of Buyer Filing Parties and Certain Other Persons			119
Common Stock Ownership of Parent by Management			119
CERTAIN PURCHASES AND SALES OF COMMON UNITS AND PRIOR PUBLIC OFFERINGS			121
UNITHOLDER PROPOSALS			123
DELISTING AND DEREGISTRATION			124
OTHER MATTERS			125
Householding of Special Meeting Materials			125
INFORMATION CONCERNING THE BUYER FILING PARTIES			126
Business and Background of the Buyer Filing Parties			126
Business and Background of Buyer Filing Parties Control Persons			127
Prior Contracts and Transactions			130
PROPOSAL NO. 2. THE ADJOURNMENT PROPOSAL			133
WHERE YOU CAN FIND MORE INFORMATION			134
ANNEX A – Merger Agreement			A-1
ANNEX B – Parent Group Support Agreement			B-1
ANNEX C – Senterfitt Support Agreement			C-1
ANNEX D – Bondurant Support Agreement			D-1
ANNEX E – Martin Support Agreement			E-1
ANNEX F – Opinion of Houlihan Lokey to the Conflicts Committee			F-1
ANNEX G – Opinion of Wells Fargo to the Parent Board			G-1

 

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QUESTIONS AND ANSWERS ABOUT THE MERGER AND THE SPECIAL MEETING

Set forth below are questions that you, as a Unitholder, may have regarding the Merger Proposal, the Adjournment Proposal and the Special Meeting, and brief answers to those questions. However, this section may not provide all of the information that is important to you. Accordingly, you are urged to read carefully this proxy statement, the other documents referred to in this proxy statement in their entirety, including the Merger Agreement, which is attached as Annex A to this proxy statement, each of the Support Agreements entered into between the Partnership and each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin, which are attached as Annex B, Annex C, Annex D and Annex E, respectively, to this proxy statement, the opinion of Houlihan Lokey to the Conflicts Committee, which is attached as Annex F to this proxy statement, the opinion of Wells Fargo to the Parent Board, which is attached as Annex G to this proxy statement, and the documents incorporated by reference into this proxy statement. You may obtain a list of the documents incorporated by reference into this proxy statement in the section titled “Where You Can Find More Information.”

 

Q:	Why am I receiving this proxy statement?

 

A:

The Partnership and the General Partner, together with Parent and Merger Sub, have agreed to a merger, pursuant to which Merger Sub will merge with and into the Partnership, with the Partnership surviving as a wholly owned subsidiary of Parent. At the effective time of the Merger, each Public Common Unit will be converted into the right to receive the Merger Consideration. After the Merger, the Partnership’s Common Units will cease to be publicly traded. In order to complete the Merger, the affirmative vote of holders of at least a majority of the issued and outstanding Common Units is required to approve the Merger Agreement and the Merger. The Partnership is holding a special meeting of its Unitholders to obtain this Unitholder Approval.

This document is being delivered to you as a proxy statement by which the GP Board is soliciting proxies from you to vote on the approval of the Merger Agreement and the Merger at the Special Meeting or at any adjournment or postponement of the Special Meeting.

Your vote is extremely important, and we encourage you to submit your proxy as soon as possible. For more information on how to vote, please see the section of this proxy statement entitled “The Partnership Special Meeting.”

 

Q:	What will happen in the Merger?

 

A:

In the Merger, Merger Sub will merge with and into the Partnership. The Partnership will survive as a wholly owned subsidiary of Parent. If the Merger is completed, each Public Common Unit will be converted into the right to receive the Merger Consideration and the Common Units will cease to be listed on the Nasdaq, will be deregistered under the Exchange Act, and will cease to be publicly traded.

 

Q:	What will I receive in the Merger for my Common Units?

 

A:	If the Merger is completed, each Public Common Unit will be converted into the right to receive the Merger Consideration, $4.02 in cash, to be paid without interest. See “Proposal No. 1. The Merger Proposal.”

 

Q:	How does the Merger Consideration of $4.02 per Common Unit compare to the market price of the Common Units prior to the execution of the Merger Agreement?

 

A:

The Merger Consideration represents a 34.00% premium to the $3.00 closing price per Common Unit on the last trading day prior to Parent’s initial offer made on May 24, 2024 to acquire all of the Common Units held by Partnership Unaffiliated Unitholders. The Merger Consideration represents an 11.33% premium to the trailing 30-trading day volume-weighted average price of the Common Units on October 3, 2024, the date that the Merger Agreement was executed.

 

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Q:	How will I receive the Merger Consideration to which I am entitled?

 

A:	Promptly after the Effective Time, the Paying Agent will mail or provide to each holder of record of Common Units certain transmittal materials and instructions for use in effecting the surrender of Common Units to the Paying Agent.

 

Q:	What will I receive for any restricted units, phantom units and phantom unit appreciation rights that I hold?

 

A:

The Merger Agreement provides that immediately prior to the Effective Time, all restricted units, phantom units and phantom unit appreciation rights outstanding immediately prior to the Effective Time will fully vest. Each holder of a restricted unit or phantom unit will receive an amount equal to the Merger Consideration with respect to each such unit that becomes vested pursuant to the terms of the Merger Agreement. Each holder of a phantom unit appreciation right will receive an amount equal to the Merger Consideration less the date of grant value (as determined in accordance with the applicable award agreement) with respect to each phantom unit appreciation right that becomes vested pursuant to the terms of the Merger Agreement.

 

Q:	What happens if the Merger is not completed?

 

A:

If the Merger Agreement is not approved by Unitholders or if the Merger is not completed for any other reason, Unitholders will not receive any form of consideration for their Common Units in connection with the Merger. Instead, the Partnership will remain a publicly traded limited partnership and the Common Units will continue to be listed and traded on the Nasdaq.

 

Q:	Will the Partnership continue to pay quarterly distributions for completed calendar quarters prior to the completion of the Merger?

 

A:

Yes, subject to certain requirements. Under the Merger Agreement, until the closing of the Merger, the General Partner will cause the Partnership to declare and pay regular quarterly cash distributions to the holders of the Common Units consistent with past practice, including with respect to setting of record dates. See “Proposal No. 1. The Merger Proposal—Distributions.”

 

Q:	What am I being asked to vote on?

 

A:	Unitholders are being asked to vote on the following proposals:

 

•

Merger Proposal: To approve the Merger Agreement, a copy of which is attached as Annex A to this proxy statement, as such agreement may be amended from time to time, and the Merger; and

 

•

Adjournment Proposal: To approve the adjournment of the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes to approve the Merger Agreement and the Merger, at the time of the Special Meeting.

The approval of the Merger Proposal by Unitholders holding a majority of the issued and outstanding Common Units is a condition to the obligations of the Partnership and Parent to complete the Merger. The approval of the Adjournment Proposal is not a condition to the obligations of the Partnership or Parent to complete the Merger.

 

Q:	Does the Conflicts Committee recommend that the Partnership Unaffiliated Unitholders approve the Merger Agreement and the Merger?

 

A:	Yes. The Conflicts Committee, consisting of three independent directors that satisfy the requirements for membership on the Conflicts Committee that are set forth in the Partnership Agreement and the Conflicts

 

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Committee Charter, has unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved (such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including Section 7.9(a) thereof) the Merger Agreement, the Support Agreements and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) recommended that the GP Board approve the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iv) recommended that the GP Board submit the Merger Agreement and the Merger to a vote of the Unitholders and (v) recommended, and recommended that the GP Board resolve to recommend, approval of the Merger Agreement and the Merger by the Unitholders. Therefore, the Conflicts Committee recommends that the Unitholders vote “FOR” the Merger Proposal. See “Special Factors— Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal—Reasons for the Conflict Committee’s Recommendation.”

 

Q:	Does the GP Board recommend that Unitholders approve the Merger Agreement and the Merger?

 

A:

Yes. The GP Board, after considering various factors, including the unanimous determination and recommendation of the Conflicts Committee, has unanimously and in good faith determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and are in the best interests of the Partnership and the Partnership Unaffiliated Unitholders. Therefore, the GP Board recommends that the Partnership Unaffiliated Unitholders vote “FOR” the Merger Proposal. See “Special Factors—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal—Reasons for the GP Board’s Recommendation.” In considering the recommendation of the GP Board with respect to the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, you should be aware that directors and executive officers of the General Partner have interests in the Merger that may be different from, or in addition to, your interests as a Unitholder. You should consider these interests in voting on the Merger Proposal. These different interests are described under “Special Factors—Interests of the Directors and Executive Officers of the General Partner in the Merger.”

 

Q:	Will the Partnership be required to submit the Merger Proposal to the Unitholders even if the Conflicts Committee or the GP Board has effected a Partnership Adverse Recommendation Change with respect to the approval of the Merger Agreement?

 

A:

Yes. Unless the Merger Agreement is terminated, the Partnership is required to submit the Merger Proposal to the Unitholders regardless of whether the Conflicts Committee or the GP Board recommends that the Unitholders reject the Merger Proposal or otherwise takes any action constituting an adverse recommendation change under the Merger Agreement. In the event the Conflicts Committee makes an adverse recommendation under the Merger Agreement, Parent may also terminate the Merger Agreement and collect a $2.5 million termination fee from the Partnership.

For more information regarding the ability of the Partnership to terminate the Merger Agreement, and the Conflicts Committee’s or the GP Board’s ability to change its recommendation with respect to the Merger Proposal, see “Proposal No. 1. The Merger Proposal—Termination” and “Proposal No. 1. The Merger Proposal—General Partner Recommendation and Partnership Adverse Recommendation Change.”

 

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Q:	What Unitholder vote is required for the approval of each proposal?

 

A:	The following are the vote requirements for the proposals:

 

•

Merger Proposal. The Merger Proposal requires the affirmative vote of holders of at least a majority of the issued and outstanding Common Units. Abstentions, failures to vote, or failures to instruct your broker, bank or other nominee to vote, and broker non-votes (if any) will have the same effect as votes “AGAINST” the Merger Proposal.

 

•

Adjournment Proposal. If a quorum is present at the Special Meeting, the Adjournment Proposal requires the affirmative vote of holders of at least a majority of the issued and outstanding Common Units entitled to vote and be present in person or by proxy at such meeting; provided that, if a quorum is not present at the Special Meeting, the affirmative vote of holders of at least a majority of the issued and outstanding Common Units entitled to vote at such meeting (including issued and outstanding Common Units deemed owned by the General Partner) represented either in person or by proxy is required to approve the Adjournment Proposal. If a quorum is present, abstentions, failures to vote, or failures to instruct your broker, bank or other nominee to vote, and broker non-votes (if any) will have the same effect as votes “AGAINST” the Adjournment Proposal. If a quorum is not present, abstentions will have the same effect as votes “AGAINST” the Adjournment Proposal, but failures to vote, or failures to instruct your broker, bank or other nominee to vote, and broker non-votes (if any) will have no effect on the Adjournment Proposal.

 

Q:	How do the Support Parties intend to vote?

 

A:	As of the close of business on the Record Date, the Support Parties owned an aggregate of [●] Common Units, representing approximately [●]% of the outstanding Common Units, entitled to vote at the Special Meeting.

Pursuant to the terms of the Support Agreements entered into between the Partnership and each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin in connection with entry into the Merger Agreement, the Support Parties have agreed to appear at the Special Meeting or otherwise cause their respective Common Units to be counted as present thereat for the purpose of establishing a quorum and vote (or consent), or cause to be voted at such meeting, in person or by proxy, all of their Common Units in favor of the Merger, the approval of the Merger Agreement and any other matter necessary or desirable for the consummation of the transactions contemplated by the Merger Agreement, including the Merger. The Support Parties’ agreements to vote their respective Common Units in favor of the Merger Agreement will not be sufficient to approve the Merger Agreement and the Merger on behalf of the holders of the Common Units, without also obtaining additional votes of other holders of the Common Units. The Partnership encourages you to read each of the Support Agreements carefully and in their entirety.

 

Q:	What constitutes a quorum for the Special Meeting?

 

A:

At least a majority of the issued and outstanding Common Units (including issued and outstanding Common Units deemed owned by the General Partner) must be represented in person or by proxy at the Special Meeting in order to constitute a quorum. Any abstentions and broker non-votes (if any) will be considered to be present at the meeting for purposes of determining whether a quorum is present at the Special Meeting. Pursuant to the Support Agreements entered into between the Partnership and each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin, the Support Parties have agreed to appear at the Special Meeting for quorum purposes.

 

Q:	When is this proxy statement being mailed?

 

A:	This proxy statement and the proxy card are first being sent to Unitholders on or about [●], 2024. The proxy statement and the proxy card will be mailed to all Unitholders as of the Record Date of [●], 2024. Only one

 

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proxy statement will be delivered to multiple Unitholders sharing an address unless the Partnership has received contrary instructions from one or more of the Unitholders. For further information, see “Other Matters—Householding of Special Meeting Materials.”

 

Q:	What is a proxy?

 

A:

A proxy is your legal designation of another person to vote your Common Units. This written document describing the matters to be considered and voted on at the Special Meeting is called a proxy statement. The document used to designate a proxy to vote your Common Units is called a proxy card, a copy of which is enclosed with this proxy statement if you are a holder of record.

 

Q:	Who will solicit and pay the cost of soliciting proxies?

 

A:

The GP Board is soliciting your proxy in connection with the Special Meeting, and the Partnership will bear the costs of soliciting proxies. The Partnership has engaged Innisfree M&A Incorporated (the “Proxy Solicitor”) to assist in the solicitation of proxies for the Special Meeting. Innisfree M&A Incorporated will be paid a fee of up to $30,000, plus certain expenses and other costs, by the Partnership for these and other advisory services in connection with the Special Meeting. In addition, the Partnership has agreed to indemnify Innisfree M&A Incorporated, its subsidiaries and their respective directors, officers, employees and agents against certain claims, liabilities, losses, damages and expenses. Proxies may also be solicited by certain of the General Partner’s directors, officers and employees by telephone, electronic mail, letter, facsimile or in person, but no additional compensation will be paid to them.

Forms of proxies and proxy materials may also be distributed through brokers, banks and other nominees to the beneficial owners of Common Units, in which case these parties will be reimbursed for their reasonable out-of-pocket expenses.

 

Q:	When and where is the Special Meeting?

 

A:	The Special Meeting will be held at the Partnership’s office located at 4200 B Stone Road, Kilgore, Texas 75662, on [●], 2024, at [●] (local time).

 

Q:	How do I vote my Common Units at the Special Meeting or submit my proxy?

 

A:	There are four ways you may cast your vote or cause your Common Units to be voted.

 

•

In Person. If you are a Unitholder of record, you may vote in person at the Special Meeting. Common Units held by a broker, bank or other nominee may be voted in person by you only if you obtain a legal proxy from the record holder (which is your broker, bank or other nominee) giving you the right to vote Common Units;

 

•

Via the Internet. If you are a Unitholder of record, you may submit your proxy electronically via the Internet by accessing the Internet address provided on each proxy card and following the instructions provided;

 

•

By Telephone. If you are a Unitholder of record, you may submit your proxy by using the toll-free telephone number listed on the enclosed proxy card and following the instructions provided; or

 

•

By Mail. You may submit your proxy by filling out, signing and dating the enclosed proxy card (if you are a Unitholder of record) or voting instruction form (if your Common Units are held by a broker, bank or other nominee) and returning it by mail in the prepaid envelope provided.

Even if you plan to attend the Special Meeting in person, you are encouraged to submit your proxy as described above so that your vote will be counted if you later decide not to attend the Special Meeting.

 

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If you are a holder of record, the deadline for submitting your proxy by telephone or electronically through the Internet is 11:59 p.m. Eastern Time on [●], 2024 (the “telephone/internet deadline”).

If your Common Units are held by a broker, bank or other nominee, also known as holding units in “street name,” you should receive instructions from the broker, bank or other nominee that you must follow in order to have your Common Units voted. Please review such instructions to determine whether you will be able to vote via the Internet or by telephone and the deadline for voting.

If the Special Meeting is adjourned to solicit additional votes in favor of the Merger Proposal, the deadline for submitting your proxy by telephone or electronically through the Internet deadline may be extended. The failure to vote your Common Units held of record or to instruct your brokerage firm, bank or other nominee to vote your Common Units will have the same effect as voting “AGAINST” approval of the Merger Proposal.

 

Q:	Where can I find the voting results of the Special Meeting?

 

A:	The preliminary voting results are expected to be announced at the Special Meeting. In addition, promptly following the conclusion of the Special Meeting, the Partnership will file the final voting results with the SEC on a Current Report on Form 8-K.

 

Q:	If my Common Units are held in “street name” by my broker, bank or other nominee, will my broker, bank or other nominee automatically vote my Common Units for me?

 

A:

No. If your Common Units are held in an account at a broker, bank or through another nominee, you must instruct the broker, bank or other nominee on how to vote your Common Units by following the instructions that they provide to you with these materials. Most banks and brokers offer the ability for Unitholders to submit voting instructions by mail by completing a voting instruction form, by telephone and via the Internet.

Broker non-votes occur when (i) a broker, bank or other nominee has discretionary authority to vote on one or more proposals to be voted on at a meeting of unitholders, but is not permitted to vote on other proposals without instructions from the beneficial owner of the units and (ii) the beneficial owner fails to provide the broker, bank or other nominee with such instructions. Under applicable rules, brokers, banks and other nominees holding units in “street name” do not have discretionary voting authority with respect to any of the Proposals, including the Merger Proposal, and therefore we do not expect there to be any broker non-votes at the Special Meeting. Accordingly, if a beneficial owner of Common Units held in “street name” does not give voting instructions to the broker, bank or other nominee, then (i) those units will not be counted as present in person or by proxy at the Special Meeting and (ii) it will have the same effect as voting “AGAINST” the Merger Proposal.

 

Q:	How will my Common Units be represented at the Special Meeting?

 

A:

If you submit your proxy by telephone, the Internet website or by signing and returning your proxy card, the officers named in your proxy card will vote your Common Units in the manner you requested if you correctly submitted your proxy. If you sign your proxy card and return it without indicating how you would like to vote your Common Units, your proxy will be voted as the GP Board recommends, which is:

 

•

Merger Proposal: “FOR” the Merger Proposal; and

 

•

Adjournment Proposal: “FOR” the Adjournment Proposal.

 

Q:	Who may attend the Special Meeting?

 

A:	Unitholders as of the Record Date (or their authorized representatives), including unitholders of record and beneficial owners of Common Units registered in the “street name” of a broker, bank or other nominee, and

 

23

the Partnership’s invited guests may attend the Special Meeting. If you are a Unitholder of record, please be prepared to provide proper identification, such as a driver’s license. If you hold your Common Units in “street name,” you will need to provide proof of ownership, such as a recent account statement or letter from your broker, bank or other nominee, along with proper identification.

 

Q:	Is my vote important?

 

A:

Yes, your vote is very important. If you do not submit a proxy or vote in person at the Special Meeting, it will be more difficult for the Partnership to obtain the necessary quorum to hold the Special Meeting. In addition, an abstention or your failure to submit a proxy or to vote in person will have the same effect as a vote “AGAINST” the Merger Proposal. If you hold your Common Units through a broker, bank or other nominee, your broker, bank or other nominee will not be able to cast a vote on the Merger Proposal without instructions from you, which will have the same effect as a vote “AGAINST” the Merger Proposal. The GP Board recommends that Unitholders vote “FOR” the Merger Proposal.

 

Q:	Can I revoke my proxy or change my voting instructions?

 

A:	Yes. If you are a Unitholder of record, you may revoke your proxy or change your voting instructions at any time before the telephone/Internet deadline or before the polls close at the Special Meeting, as applicable, by:

 

•

sending a written notice, no later than the telephone/internet deadline, to Martin Midstream Partners L.P. at 4200 B Stone Road, Kilgore, Texas 75662, Attention: Secretary, that bears a date later than the date of your proxy and is received prior to the Special Meeting and states that you revoke your proxy;

 

•

submitting a valid, later-dated proxy by mail that is received prior to the Special Meeting;

 

•

submitting a valid, later-dated proxy by telephone or Internet before the telephone/Internet deadline; or

 

•

attending the Special Meeting and voting by ballot in person (your attendance at the Special Meeting will not, by itself, revoke any proxy that you have previously given).

If you hold your Common Units through a broker, bank or other nominee, you must follow the directions you receive from your broker, bank or other nominee in order to revoke your proxy or change your voting instructions.

Only your last submitted proxy will be considered. Please cast your vote “FOR” each of the proposals listed in this proxy statement, following the instructions provided, as promptly as possible.

 

Q:	What happens if I sell my Common Units after the Record Date, but before the Special Meeting?

 

A:

The Record Date for the Special Meeting is set earlier than both the date of the Special Meeting and the date that the Merger is expected to be completed. If you sell or otherwise transfer your Common Units after the Record Date, but before the date of the Special Meeting, you will retain your right to vote at the Special Meeting. However, you will not have the right to receive the Merger Consideration to be received by the Unitholders in the Merger. In order to receive the Merger Consideration, you must hold your Common Units up to the completion of the Merger.

 

Q:	What does it mean if I receive more than one proxy card or voting instruction form?

 

A:

Your receipt of more than one proxy card or voting instruction form may mean that you have multiple accounts with the Partnership’s transfer agent or with a brokerage firm, bank or other nominee. If submitting your proxy or providing voting instructions by mail, please sign and return all proxy cards or voting instruction forms to ensure that all of your Common Units are voted. Each proxy card or voting instruction form represents a distinct number of Common Units, and it is the only means by which those particular Common Units may be voted by proxy.

 

24

Q:	Am I entitled to appraisal rights if I vote against the approval of the Merger Proposal?

 

A:	No. Appraisal rights are not available in connection with the Merger under the Merger Agreement, the Partnership Agreement or applicable Delaware law.

 

Q:	Is completion of the Merger subject to any conditions?

 

A:

Yes. In addition to the receipt of Unitholder Approval, completion of the Merger requires the receipt of the necessary governmental clearances and the satisfaction or, to the extent permitted by applicable law, waiver of the other conditions specified in the Merger Agreement. For further discussion of the conditions to the Merger, see “Proposal No. 1 The Merger Proposal—Conditions to Completion of the Merger.”

 

Q:	When do you expect to complete the Merger?

 

A:

The Partnership and Parent are working towards completing the Merger promptly. The Partnership and Parent currently expect to complete the Merger by the end of 2024, subject to receipt of Unitholder Approval and other usual and customary closing conditions. However, no assurance can be given as to when, or if, the Merger will occur.

 

Q:	What are the material U.S. federal income tax consequences of the Merger to the Unitholders?

 

A:

If you are a U.S. Unitholder (as defined in the section titled “Special Factors—Tax Consequences of the Merger to Unitholders—Material U.S. Federal Income Tax Consequences of the Merger”), the receipt of cash in exchange for Common Units pursuant to the Merger will generally be a taxable transaction for U.S. federal income tax purposes and the resulting tax liability, if any, will depend on your particular situation. Accordingly, you should consult your tax advisors regarding the particular tax consequences to you of the exchange of Common Units for cash pursuant to the Merger in light of your particular circumstances (including the application and effect of any state, local or foreign income and other tax laws).

 

Q:	What do I need to do now?

 

A:	Carefully read and consider the information contained in and incorporated by reference into this proxy statement, including its annexes. Then, please submit your proxy for your Common Units in accordance with the instructions described above.

If you hold Common Units through a broker, bank or other nominee, please instruct your broker, bank or nominee to submit your proxy for your Common Units by following the instructions that they provide to you with these materials.

 

Q:	Should I send in my evidence of ownership now?

 

A:

No. After the Merger is completed, you will be sent a letter of transmittal with detailed written instructions for exchanging your Common Units for the Merger Consideration. If your Common Units are held in “street name” by your broker, bank or other nominee, you may receive instructions from your broker, bank or other nominee as to what action, if any, you need to take to effect the surrender of your “street name” Common Units in exchange for the Merger Consideration.

 

Q:	What is householding and how does it affect me?

 

A:

We have adopted a procedure approved by the SEC called “householding.” Under this procedure, Unitholders who have the same address and have consented to our mailing of proxy materials and other unitholder information only to one account in such household will receive only one paper copy of the proxy materials, as applicable, unless one or more of these Unitholders notifies us that they wish to continue receiving individual copies. This procedure helps reduce our printing costs and postage fees.

 

25

A number of brokerage firms with account holders who are Unitholders may also use householding. Once you have received notice from your bank or broker that it will be householding materials to your address, householding generally will continue until you are notified otherwise or until you revoke your consent.

If, at any time, you no longer wish to participate in “householding” and you prefer to receive separate proxy materials, please notify your broker or write to the following address:

Martin Midstream Partners L.P.

4200 B Stone Road

Kilgore, Texas 75662

Attention: Secretary

Phone: (903) 983-6200

For further discussion of householding matters, see “Other Matters—Householding of Special Meeting Materials.”

 

Q:	Who should I call with questions?

 

A:

Unitholders should call Innisfree M&A Incorporated, the Partnership’s proxy solicitor, at (877) 750-8334, with any questions about the Merger or the Special Meeting, or to obtain additional copies of this proxy statement, proxy cards or voting instruction forms. If your Common Units are held in the name of a broker, bank or other nominee, please follow the instructions on the voting instruction form furnished to you by such broker, bank or other nominee, and please contact such broker, bank or other nominee for additional information.

 

26

SPECIAL FACTORS

This section of the proxy statement describes the material aspects of the proposed Merger. This section may not contain all of the information that is important to you. You should carefully read this entire proxy statement and the documents incorporated herein by reference, including the full text of the Merger Agreement, each of the Support Agreements, Houlihan Lokey’s Opinion to the Conflicts Committee and Wells Fargo’s Opinion to the Parent Board for a more complete understanding of the Merger. Copies of the Merger Agreement, the Parent Group Support Agreement, the Senterfitt Support Agreement, the Bondurant Support Agreement, the Martin Support Agreement, Houlihan Lokey’s Opinion and Wells Fargo’s Opinion are attached hereto as Annex A, Annex B, Annex C, Annex D, Annex E, Annex F and Annex G, respectively. In addition, important business and financial information about the Partnership is included in or incorporated into this proxy statement by reference. See “Where You Can Find More Information.”

Effects of the Merger

Pursuant to the Merger Agreement, Merger Sub, a wholly owned subsidiary of Parent, will merge with and into the Partnership, with the Partnership surviving the Merger and continuing to exist as a Delaware limited partnership, and each Public Common Unit will be converted into the right to receive the Merger Consideration. If the Merger is completed, (i) holders of the Common Units other than Parent and its subsidiaries (including the Partnership Unaffiliated Unitholders) will no longer have an equity interest in the Partnership (other than holders that will indirectly own an equity interest in the Partnership through ownership of an equity interest in Parent), (ii) the Common Units will no longer be listed on the Nasdaq, (iii) the Common Units will be deregistered under the Exchange Act as promptly as practicable following the Effective Time and (iv) Parent, as the parent of General Partner and the sole member of Merger Sub, will own all of the limited partner interests and General Partner Interest of the Partnership.

The limited liability company interests in Merger Sub issued and outstanding immediately prior to the Effective Time will be cancelled and cease to exist, and no consideration will be delivered in respect thereof. At the Effective Time, the books and records of the Partnership will be revised to reflect (i) the cancellation and extinguishment of all Common Units that were converted into the right to receive the applicable Merger Consideration and that, immediately following the Effective Time, Parent or its subsidiaries will be the only holders of the Common Units and (ii) that the existence of the Partnership will continue without dissolution.

The Merger Agreement provides that immediately prior to the Effective Time, all restricted units, phantom units and phantom unit appreciation rights outstanding immediately prior to the Effective Time will fully vest. Each holder of a restricted unit or phantom unit will receive an amount equal to the Merger Consideration with respect to each such unit that becomes vested pursuant to the terms of the Merger Agreement. Each holder of a phantom unit appreciation right will receive an amount equal to the Merger Consideration less the date of grant value (as determined in accordance with the applicable award agreement) with respect to each phantom unit appreciation right that becomes vested pursuant to the terms of the Merger Agreement.

The Partnership’s General Partner Interest and the Common Units owned by Parent, in each case that are issued and outstanding immediately prior to the Effective Time, will be unaffected by the Merger and will remain outstanding and no consideration will be paid or delivered in respect thereof.

As a result and upon consummation of the Merger, the Partnership will cease to be a publicly traded partnership and the Common Units will no longer be traded on the Nasdaq. The current unitholders of the Partnership (other than the General Partner and Parent) will no longer have an equity interest in the Partnership (other than holders that will indirectly own an equity interest in the Partnership through ownership of an equity interest in Parent). The Merger will have the federal tax consequences described under “Special Factors—Tax Consequences of the Merger to Unitholders.”

 

27

In addition, upon consummation of the Merger, Parent, as the parent of the General Partner and the sole member of Merger Sub, will own all of the limited partner interests and General Partner Interest of the Partnership. As of the Record Date, Ruben S. Martin, III (the Chairman of the GP Board and the President and Chief Executive Officer and a Director of Parent) and Robert D. Bondurant (the President and Chief Executive Officer of the General Partner and a Director of Parent) along with the General Partner’s other directors and executive officers owned, directly and indirectly, an aggregate of [●]% of the equity interests in Parent and as a result will have an indirect equity interest in the Partnership after the Merger.

Further, in connection with the Merger, certain directors and executive officers of the General Partner will receive benefits and be subject to obligations that are different from, or in addition to, the benefits and obligations of the Partnership’s Unaffiliated Unitholders generally, as described in more detail under see “Special Factors—Interests of the Directors and Executive Officers of the General Partner in the Merger.”

The Partnership’s net book value (calculated as total assets minus total liabilities) as of September 30, 2024 was approximately negative $61.3 million, and the Partnership’s net earnings for the three months ended September 30, 2024 was negative $3.3 million. If the Merger is completed, the Partnership’s Unaffiliated Unitholders will have no interest in the Partnership’s net book value or net earnings. As of the Record Date, the Buyer Filing Parties owned an aggregate of [●] Common Units, representing approximately [●]% of the outstanding Common Units. If the Merger is consummated, the Buyer Filing Parties’ aggregate interest in the Partnership’s net book value and net earnings will increase to 100%, and the direct and indirect owners of Parent will have an indirect beneficial interest in the Partnership’s net book value and net earnings attributable in proportion to each such person’s or entity’s ownership interest in Parent. Parent and its affiliates will also be entitled to any future increase in the Partnership’s value and all income generated by the Partnership’s operations going forward.

Background of the Merger

The Parent Board and Parent management, which are responsible for overseeing Parent’s business, as well as the GP Board, regularly review and assess operational and strategic opportunities to increase value for Parent’s and the Partnership’s respective equityholders. In connection with these reviews, these boards of directors and the management team, from time to time, evaluated potential transactions that would further their respective strategic objectives and create value for the Parent stockholders and the Unitholders, as applicable. These alternatives included potential acquisitions with third parties, potential acquisitions or other transactions involving Parent and the Partnership, and other potential strategic alternatives.

In recent years, Parent has from time to time considered the external environment for master limited partnerships (“MLPs”) generally, and for the Partnership specifically, including the reduced accessibility of debt and equity capital markets for MLPs; the increasing cost of capital for MLPs, particularly micro-cap MLPs such as the Partnership; the increased desire of investors for companies legally structured as traditional corporations for governance and liquidity reasons; the passage of the Tax Cuts and Jobs Act of 2017, which lowered the U.S. federal corporate income tax rate from 35% to 21% and thereby reduced the relative tax benefits of the MLP pass-through structure; rising interest rates and inflationary pressures; and the perceived effects of such market dynamics on the trading prices for the Common Units. These market trends have led to numerous transactions involving MLPs, including buy-ins of MLPs by their corporate sponsors, acquisitions of MLPs by third parties, conversions of MLPs to corporations for income tax and state law purposes and simplifications of MLPs in which incentive distribution rights are modified or eliminated to improve the MLPs’ cost of capital. The overall result of these transactions has been a significant reduction in the number of outstanding MLPs in recent years.

In the Fall of 2023, due to the continued decline of the unit price of the Common Units and the reduced investor interest in the Common Units reflected by reduced trading volume, Parent began considering a potential transaction to acquire the Partnership, and in November 2023, Parent engaged Baker Botts L.L.P. (“Baker Botts”) to serve as its counsel in connection with a potential transaction.

 

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On January 3, 2024, management of Parent had an internal meeting to consider further the unit price and trading volume of the Common Units, the Partnership financial statements and performance, the capitalization of Parent, a potential loan from certain officers and/or directors of Parent who are also officers and/or directors of the Partnership, including Mr. Martin and Mr. Bondurant (the “Management Loan”), as well as cost-reducing opportunities and tax implications of the Partnership being a private company. Later that afternoon, Chris Booth, the Executive Vice President, Chief Legal Officer and General Counsel of Parent and the General Partner, contacted Byron R. Kelley, Chairman of the Conflicts Committee, to discuss the possibility of the Proposed Transaction and to suggest that the Conflicts Committee commence the process to interview and engage independent financial and legal advisors with respect thereto.

On January 4, 2024, Mr. Kelley, on behalf of the Conflicts Committee, contacted Munsch Hardt Kopf & Harr, P.C. (“Munsch Hardt”) to discuss engaging Munsch Hardt as independent legal counsel to represent the Conflicts Committee in connection with considering the Proposed Transaction. The Conflicts Committee determined to engage Munsch Hardt because of Munsch Hardt’s knowledge, expertise and experience and the Conflicts Committee’s satisfaction with Munsch Hardt’s prior representation of the Conflicts Committee with respect to several transactions.

On January 11, 2024, the Conflicts Committee met by videoconference to discuss the retention of independent financial advisors to assist the Conflicts Committee with the Proposed Transaction, and discussed meeting with Munsch Hardt on January 12, 2024 to discuss potential independent financial advisors to interview and the timing for the interviews.

On January 12, 2024, the Conflicts Committee met by videoconference with Munsch Hardt to discuss preliminary considerations with respect to the Proposed Transaction, including the Conflicts Committee members’ duties under the Partnership Agreement and under Delaware law in connection with a going private transaction, the process for such transaction, as well as the scope of authority of the Conflicts Committee, in each case if a proposal was received from Parent. Each member of the Conflicts Committee confirmed his independence for purposes of meeting the standards imposed by the Partnership Agreement to be a member of the Conflicts Committee.

At that same meeting, Munsch Hardt recommended that the Conflicts Committee retain Potter Anderson & Corroon LLP (“Potter Anderson”) as the Conflicts Committee’s independent special Delaware counsel in connection with the transaction, because of Potter Anderson’s extensive knowledge, expertise and experience with respect to public merger and acquisition transactions, MLP governance and transactions, and conflicts committee engagements. The Conflicts Committee approved such course of action. Additionally, Munsch Hardt and the Conflicts Committee discussed the engagement of an independent financial advisor that would assist the Conflicts Committee in its evaluation of the potential transaction. The Conflicts Committee determined to interview potential financial advisors.

On January 23, 2024, at a special meeting of the GP Board, which was held by videoconference, because two of the five members of the GP Board are officers of Parent, and because of the possible and actual conflicts of interests, the members of the GP Board unanimously adopted resolutions confirming Mr. Kelley, C. Scott Massey, and James M. Collingsworth as members of the Conflicts Committee in accordance with the Partnership Agreement and the Charter of the Conflicts Committee and authorizing the Conflicts Committee to (i) make such investigation of the Proposed Transaction and the alternative of maintaining the status quo, as the Conflicts Committee deemed necessary or appropriate, (ii) review, evaluate and negotiate (or to supervise and direct the negotiations on behalf of the Partnership with respect to) the terms and conditions, and determine the advisability of, the Proposed Transaction and related agreements and arrangements, (iii) determine whether the Proposed Transaction is fair and reasonable to, and in the best interest of, the Partnership and the holders of the Common Units (other than the General Partner, Parent and their respective affiliates (other than the Partnership and its subsidiaries), including any officer, director, equityholder or member thereof), (iv) determine whether to approve the Proposed Transaction (with such approval constituting “Special Approval” for all purposes under the

 

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Partnership Agreement, including, but not limited to, Section 7.9(a) thereof), and to make a recommendation to the GP Board whether to approve the Proposed Transaction and, if appropriate, to recommend that the Unitholders approve the Proposed Transaction, and (v) make other recommendations to the GP Board and/or the Unitholders regarding the Proposed Transaction as the Conflicts Committee determined to be appropriate. In discharging its duties, the Conflicts Committee was granted all power, authority, and privileges of the GP Board necessary to perform such duties, including, but not limited to, the power and authority (i) to engage in discussions with the management, representatives and advisors of the General Partner, the Partnership, Parent, and their respective affiliates, including any officer, director, equityholder or member thereof, and the other potential parties to the Proposed Transaction, (ii) to select and retain, at the expense of the Partnership, an independent financial advisor, independent legal counsel, and other advisors as necessary or appropriate to assist it with the performance and fulfillment of such duties, (iii) to enter into contracts providing for the retention, compensation, reimbursement of expenses and indemnification of such advisors as the Conflicts Committee may in its sole discretion deem necessary or appropriate, and (iv) to incur, for the account of the Partnership, such other costs and expenses as are necessary or appropriate in connection with the performance of the Conflicts Committee’s duties. See “Special Factors—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal.”

In January 2024, Parent interviewed several potential financial advisors and entered into an engagement letter with Wells Fargo Securities, LLC (“Wells Fargo”) in February 2024 to serve as Parent’s financial advisor in connection with the transaction. Parent selected Wells Fargo due to, among other factors, its experience in the midstream industry, including with respect to other similar transactions for MLPs, reputation and familiarity with Parent and the Partnership.

On January 25, 2024, representatives of Parent, Baker Botts, Wells Fargo and Alston & Bird LLP, counsel to Wells Fargo, discussed the transaction considerations, process and an illustrative timeline for the Proposed Transaction.

Also on January 25, 2024, the Conflicts Committee and Munsch Hardt met via videoconference, and after reviewing the materials provided in advance by each, including their relationship disclosures, interviewed Houlihan Lokey and another leading investment bank, each with experience advising midstream and energy based MLPs in similar transactions, as well as deep technical capabilities for evaluating businesses like the Partnership. After deliberation, the Conflicts Committee determined to engage Houlihan Lokey, subject to the successful negotiation of the terms of its engagement. The Conflicts Committee selected Houlihan Lokey to act as its financial advisor on the basis of Houlihan Lokey’s qualifications and expertise, knowledge of the oil and gas industry, reputation in the investment community, independence and experience in going-private transactions, as well as familiarity with the Partnership and its business and experience with the Conflicts Committee.

On January 30, 2024, the Conflicts Committee discussed and approved Houlihan Lokey’s proposed fee structure. Additionally, the Conflicts Committee discussed with both Munsch Hardt and Houlihan Lokey the timing and status of the Proposed Transaction, and elected to wait to enter into an engagement agreement with Houlihan Lokey until the financing for the Proposed Transaction became more definite.

In February 2024 and March 2024, Parent developed an internal model with respect to Parent that considered, among other things, Parent’s capital and ownership structure, and tax implications with respect to various financing scenarios that were being considered for the Proposed Transaction. In February 2024 and March 2024, representatives of Parent began preliminary discussions with representatives of Regions Bank and the Wells Fargo capital markets team regarding the potential to provide financing for the Proposed Transaction.

On April 3, 2024, representatives of Parent met with Regions Bank to present the internal model with respect to Parent and a five-year outlook for Parent after the Proposed Transaction. In the following weeks, representatives of Parent participated in several calls with Regions Bank, to answer questions regarding

 

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assumptions in the model and to discuss potential changes to Parent’s existing revolving credit facility to finance the Proposed Transaction.

On April 10, 2024, representatives of Parent met with, and provided the Parent model to, representatives of the commodity lending team of Wells Fargo. In the following weeks, representatives of Parent reviewed model assumptions with, and provided additional information regarding Parent’s businesses to, such Wells Fargo team.

In April 2024, following discussions with its advisors, including a summary of the legal considerations associated with a potential transaction presented by Baker Botts, Parent determined that, among other things, the Partnership’s then-current market valuation and lack of investor interest in MLPs generally made a take-private transaction attractive to Parent.

On May 15, 2024, representatives of Parent participated on a call with, and provided the Parent model to, the asset based lending team of Wells Fargo, National Association (“Wells Fargo Lending”), and in the following week, provided additional information regarding Parent to the Wells Fargo Lending team.

On May 23, 2024, management of Parent participated in a business update discussion regarding Parent and the Partnership with representatives of Wells Fargo.

On May 24, 2024, representatives of Parent participated in informal discussions with representatives of Regions Bank and Wells Fargo Lending regarding the potential to provide financing for the Proposed Transaction.

Later on May 24, 2024, the Parent Board met by video conference with representatives of Wells Fargo and Baker Botts, at which meeting Wells Fargo reviewed information regarding the market for the Common Units, and following approval of the Parent Board, representatives of Parent submitted a written proposal to the GP Board, to the attention of Mr. Kelley, to acquire all of the outstanding Common Units not owned by Parent and its subsidiaries at a purchase price of $3.05 per Common Unit (the “Parent Initial Proposal”), which then represented an approximate 19.1% premium to the average closing price of the Common Units on the NASDAQ Global Select Market for the trailing 90 trading days ended May 23, 2024. Later that day, the Conflicts Committee met with Munsch Hardt and Houlihan Lokey by videoconference to discuss the Parent Initial Proposal. Conflicts Committee members provided their initial thoughts, and Houlihan Lokey discussed certain observations with respect to the Parent Initial Proposal. The Conflicts Committee asked Munsch Hardt to contact Mr. Booth in order to schedule an initial meeting between the Conflicts Committee, Houlihan Lokey and Munsch Hardt, and Parent and its advisors, to discuss the Parent Initial Proposal in further detail. Also later that day, the Partnership issued a press release announcing the Parent Initial Proposal. In addition, Parent (together with Resource, Cross and Martin Product) and Mr. Martin (together with Senterfitt) filed amendments to their respective Schedule 13Ds with respect to the Partnership disclosing the Parent Initial Proposal.

Also on May 24, 2024, the Conflicts Committee executed an engagement letter agreement with Houlihan Lokey, and at the request of the Conflicts Committee, Munsch Hardt sent initial financial and legal diligence requests lists, and the request to be granted access to Parent’s virtual data room, to representatives of Parent and requested that Parent arrange an initial meeting between Houlihan Lokey and Wells Fargo.

Also on May 24, 2024, a representative of Invesco Ltd., the beneficial owner of 18.5% of the Common Units as of December 31, 2023 (based on its Schedule 13G/A filed on February 12, 2024), sent an email to Sharon Taylor, the Chief Financial Officer of Parent and the General Partner, indicating that the representative had seen the announcement regarding the Parent Initial Proposal and believed the proposed offer was well below the fair value for the Partnership.

On May 28, 2024, representatives of Parent held a call with representatives of Wells Fargo and Baker Botts to discuss the status of the Parent Initial Proposal and the transaction process and arranging a call to discuss the Parent Initial Proposal with the Conflicts Committee and its representatives.

 

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On May 29, 2024, representatives of Houlihan Lokey and Wells Fargo held an introductory call to discuss the transaction process and potential next steps. Over the next few days, the Conflicts Committee, Houlihan Lokey, and Munsch Hardt received preliminary diligence materials from Parent.

On May 30, 2024, Houlihan Lokey received from Parent the initial financial model for the Partnership and forwarded such documentation to the Conflicts Committee for review.

On June 3, 2024, Parent opened a virtual data room and granted access to the Conflicts Committee, Houlihan Lokey and Munsch Hardt.

On June 4, 2024, Parent provided diligence materials with respect to the business of the Partnership to the Conflicts Committee and its advisors.

On June 5, 2024, the Conflicts Committee held a meeting by videoconference, attended by representatives of Parent, Houlihan Lokey and Munsch Hardt, as well as Baker Botts and Wells Fargo, at which representatives of Parent discussed with the Conflicts Committee the Proposed Transaction. Among other things, members of Parent management presented on the history and operations of the Partnership, the interrelationship between Parent and the Partnership, explained the strategic rationale for the Proposed Transaction, and reviewed financial performance, the history of the Common Unit trading prices and distributions for the Common Units, the limited and expensive access to capital of the Partnership, and other challenges facing the Partnership. In addition, Parent noted in its presentation materials that Parent did not anticipate future drop downs or other acquisition opportunities for the Partnership.

On June 6, 2024, Parent sent the Conflicts Committee and Houlihan Lokey additional responses to Houlihan Lokey’s supplemental diligence requests.

On June 7, 2024, at a meeting of the Conflicts Committee, which was held by videoconference and attended by Munsch Hardt and Houlihan Lokey, Houlihan Lokey discussed certain diligence materials provided by Parent, the transaction process and next steps. In addition, the Conflicts Committee and Houlihan Lokey discussed the marine business and its impact on the financial model. Houlihan Lokey and Munsch Hardt discussed the status of diligence and additional diligence to be conducted by Houlihan Lokey on behalf of the Conflicts Committee. Houlihan Lokey then discussed timing of its analysis of diligence materials. The Conflicts Committee, Munsch Hardt and Houlihan Lokey discussed the Conflicts Committee’s potential responses to the Parent Initial Proposal.

On June 14, 2024, at a meeting of the Conflicts Committee, which was held by videoconference and attended by Munsch Hardt and Houlihan Lokey, the Conflicts Committee and Houlihan Lokey again discussed the diligence responses that had been received to date from Parent, as well as the expected timeline of the Conflicts Committee’s process. Houlihan Lokey then discussed its preliminary evaluation materials with the Conflicts Committee. The Conflicts Committee and Houlihan Lokey discussed additional diligence to be conducted by Houlihan Lokey on behalf of the Conflicts Committee.

Later that day, on June 14, 2024, the Conflicts Committee and representatives of Houlihan Lokey, and Munsch Hardt met by videoconference with representatives of Parent, Wells Fargo and Baker Botts in order to discuss the financial model and additional diligence items.

On June 18, 2024, Parent provided an updated financial model to Houlihan Lokey, which Houlihan Lokey sent to Munsch Hardt, and which Munsch Hardt then sent to the Conflicts Committee.

On June 21, 2024, at a meeting of the Conflicts Committee that was held by videoconference and attended by Munsch Hardt and Houlihan Lokey, Houlihan Lokey provided the group with an update on the status of the diligence process. Houlihan Lokey also provided an update on the Partnership’s unit prices and trading volume since announcement of the Parent Initial Proposal.

 

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Also on June 21, 2024, Mr. Martin received a letter from third parties Nut Tree Capital Management LP (“Nut Tree”) and Caspian Capital LP (“Caspian”), whereby Nut Tree and Caspian set forth a non-binding offer to purchase the Partnership, through a transaction or series of transactions that would result in the holders of the Common Units receiving $4.00 per Common Unit (the “Nut Tree Caspian Proposal”). Nut Tree and Caspian indicated that they were open to discussing alternatives to their proposed transaction, which would include Nut Tree and Caspian’s acquisition of the General Partner. In their letter, Nut Tree and Caspian also expressed that they were prepared to engage in an expedited due diligence process, and that the proposed purchase price could be subject to increase and was not subject to any financing condition.

On June 24, 2024, Parent transmitted the Nut Tree Caspian Proposal to Munsch Hardt and Munsch Hardt transmitted such letter to the Conflicts Committee.

On June 24, 2024, representatives of Parent and Baker Botts discussed the Nut Tree Caspian Proposal and Parent’s response to such proposal, including the impact of such a transaction, which would, unlike the Proposed Transaction, constitute a change of control of the Partnership under (i) the terms of the indenture governing the Partnership’s 11.500% Senior Secured Second Lien Notes due 2028, which would result in the requirement of the Partnership to offer to repurchase such notes at 101% of the aggregate principal amount thereof, and (ii) the terms of the Partnership’s revolving credit facility, which, if not waived by the applicable lenders, would result in an event of default thereunder. In addition, representatives of Parent and Baker Botts discussed the impact of the change of control from the Nut Tree Caspian Proposal on the employment agreements with executive management of the General Partner, which would result in the Partnership being responsible under the Omnibus Agreement between the Partnership and Parent for payments to such executive management equal to two to three times such executives’ annual salary and bonus, which payments were not triggered under the Proposed Transaction.

On June 25, 2024, in response to the Nut Tree Caspian Proposal, Parent sent a letter to the GP Board, directed to the attention of Mr. Kelley, noting the foregoing negative impacts of the Nut Tree Caspian Proposal on the Partnership and reiterating its position, as indicated in the Parent Initial Proposal, that it had no interest in selling any of its or its subsidiaries’ interests in the Partnership or the General Partner or pursuing other strategic alternatives involving the Partnership or the General Partner, and further explaining why the Proposed Transaction was more compelling than the Nut Tree Caspian Proposal. Parent expressed that, if the Partnership were to engage in a transaction with Nut Tree and Caspian, the Partnership would be required to undertake material diligence efforts, post-closing support of Parent would be required, and such change would significantly impact the Partnership’s business relationships and its public and private debt, as Parent would have no interest in extending the term of existing commercial agreements or otherwise further obligating itself to the Partnership.

On June 27, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, to discuss (i) the compensation of the Conflicts Committee members and (ii) the Nut Tree Caspian Proposal. The Conflicts Committee members discussed and agreed with the additional compensation proposed be paid to them, of a retainer of $25,000 plus a monthly (or partial month) fee of $5,000 commencing as of May 24, 2024 in addition to their existing retainer paid for their service as directors but in lieu of any meeting fees. The compensation was to be paid for their services in connection with their evaluation of the Proposed Transaction, to be payable to the Conflicts Committee members regardless of the occurrence of the Proposed Transaction (or any similar transaction). The Conflicts Committee then discussed the Nut Tree Caspian Proposal with representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, as well as their proposed response and the Conflicts Committee’s lack of authority to pursue alternative transactions (including the Nut Tree Caspian Proposal), and what impact such letter should have on their process in connection with the Proposed Transaction. The Conflicts Committee decided to send a response letter to Nut Tree and Caspian and authorized Houlihan Lokey to communicate with them.

Later that day, Munsch Hardt, on behalf of the Conflicts Committee, sent a response letter to a representative of Parent, and asked the representative of Parent to forward such response to Nut Tree and Caspian. The representative of Parent forwarded the response letter to Nut Tree and Caspian, which letter acknowledged the Conflicts Committee’s receipt of the Nut Tree Caspian Proposal.

 

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On July 1, 2024, the Conflicts Committee met by videoconference with representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson to discuss the Parent Initial Proposal, Houlihan Lokey’s preliminary financial analysis and next steps with respect to the Parent Initial Proposal. Representatives of Munsch Hardt provided a summary of the terms of the Proposed Transaction and, together with representatives of Potter Anderson, described for the Conflicts Committee the contractual independence standards set forth in the Partnership Agreement, and confirmed with the members of the Conflicts Committee that they each remain independent under such standards. Representatives of Munsch Hardt and Potter Anderson then discussed the duties of the Conflicts Committee as modified by the Partnership Agreement in connection with the Proposed Transaction, and described the “Special Approval” provisions of Section 7.9 of the Partnership Agreement. Thereafter, representatives of Houlihan Lokey discussed its preliminary financial analysis with the Conflicts Committee. Following such discussion, the Conflicts Committee and representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson discussed the pros and cons of engaging in a transaction at this time, the Parent Initial Proposal and a potential counterproposal to Parent, with the additional requirement that approval of the Proposed Transaction be obtained by the vote of the holders of a majority of the Common Units who are unaffiliated with Parent (the “Majority of the Minority Provision”).

Later that day, on July 1, 2024, at the direction of the Conflicts Committee, representatives of Houlihan Lokey participated, on behalf of the Conflicts Committee, in a meeting with Nut Tree and Caspian to discuss the terms of the Nut Tree Caspian Proposal. Certain representatives from Latham & Watkins LLP, and Olshan Frome Wolosky LLP, legal advisors to Nut Tree and Caspian, were also present. Representatives of Nut Tree and Caspian presented to Houlihan Lokey the terms of the Nut Tree Caspian Proposal and their valuation assumptions, and stated that Nut Tree and Caspian were only interested in a transaction if Nut Tree and Caspian could acquire the General Partner as well as all of the Common Units. Representatives of Houlihan Lokey informed Nut Tree and Caspian that they should directly contact Parent to discuss the Nut Tree Caspian Proposal.

After the Houlihan Lokey meeting with Nut Tree and Caspian, also on July 1, 2024, the Conflicts Committee held a second meeting by videoconference to discuss Houlihan Lokey’s meeting with Nut Tree and Caspian, and a potential counterproposal to Parent. The Conflicts Committee and representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson discussed the fact that the Nut Tree Caspian Proposal, including the various alternative structures that were discussed, would require the consent of Parent and/or the General Partner. Thereafter, the Conflicts Committee further discussed with representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson potential responses to the Parent Initial Proposal. The Conflicts Committee decided to submit a counterproposal (the “First Counterproposal”) that Parent acquire the Public Common Units for a purchase price of $4.75 per Common Unit in cash, with the Majority of the Minority Provision. On July 2, 2024, representatives of Houlihan Lokey met with representatives of Wells Fargo by videoconference in order to preview the First Counterproposal.

On July 2, 2024, Munsch Hardt sent to Parent the First Counterproposal. The First Counterproposal was conditioned upon a Majority of the Minority Provision. Following receipt of the First Counterproposal, representatives of Parent discussed the First Counterproposal and the Nut Tree Caspian Proposal with representatives of Wells Fargo and Baker Botts. Representatives of Wells Fargo noted that the Partnership Common Units had not had a reported closing sale price on the Nasdaq stock market in excess of $3.36 during the prior 18-month period. In addition, representatives of Baker Botts advised representatives of Parent that the Majority of the Minority Provision is frequently requested by conflicts committees in negotiations regarding transactions similar to the Proposed Transaction but that such transactions typically did not include such provision.

On July 2, 2024, representatives of Parent and Wells Fargo discussed certain financial aspects relating to the Partnership and the Common Units and the ability of Parent to increase the purchase price for the Proposed Transaction, including the financing of such purchase price through an increase of Parent’s existing credit facility.

On July 3, 2024, representatives of Parent met internally to further discuss the Nut Tree Caspian Proposal.

 

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On July 5, 2024, a representative of Parent submitted to Mr. Kelley a non-binding proposal to acquire all Public Common Units for a cash purchase price of $3.25 per Common Unit (the “Parent Second Proposal”). The Parent Second Proposal was conditioned on the requirement that the applicable Partnership Unitholder approval would consist only of a vote of the holders of a majority of the outstanding Common Units (the “Simple Majority Provision”), rather than the Majority of the Minority Provision. That same day, prior to sending the Parent Second Proposal, representatives of Wells Fargo and Houlihan Lokey held a call to preview the Parent Second Proposal. In the Parent Second Proposal, Parent also reiterated its interest only in acting as a buyer in the Proposed Transaction, and its lack of interest in selling any of its interests in the Partnership or the General Partner, or pursuing other strategic alternatives.

On July 8, 2024, the Conflicts Committee met with representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson by videoconference in order to discuss the Parent Second Proposal. Representatives of Houlihan Lokey summarized the terms of the Parent Second Proposal and reported on Houlihan Lokey’s discussion with Wells Fargo prior to receipt of the Parent Second Proposal. The Conflicts Committee and representatives of Houlihan Lokey discussed the points made in the Parent Second Proposal, as well as the need to undertake diligence regarding the potential impact of Hurricane Beryl, which had recently made landfall on the Texas Gulf Coast, on the operations of the Partnership. The Conflicts Committee discussed the timing and the range of potential responses, as well as the merits of continuing to require the Majority of the Minority Provision. The Conflicts Committee decided to meet on July 10, 2024 to obtain a diligence update with respect to the impact of Hurricane Beryl and to formulate the response to the Parent Second Proposal.

On July 10, 2024, the Conflicts Committee met with representatives of Munsch Hardt, Houlihan Lokey and Potter Anderson by videoconference in order to formulate a response to the Parent Second Proposal. Representatives of Munsch Hardt and Potter Anderson discussed with the Conflicts Committee the benefits and negative impacts of requiring the Majority of the Minority Provision. Representatives of Houlihan Lokey reported on the diligence process and discussed with the Conflicts Committee the materials previously provided with respect to its financial analysis. After that discussion, Munsch Hardt, at the direction of the Conflicts Committee, sent a letter from the Conflicts Committee to a representative of Parent setting forth the terms of a non-binding counterproposal that Parent acquire all Public Common Units for a cash purchase price of $4.35 per Common Unit, which counterproposal was conditioned upon a Majority of the Minority Provision (the “Second Counterproposal”). Following receipt of the Second Counterproposal, representatives of Parent and Wells Fargo discussed financial aspects relating to the Partnership and the Common Units and representatives of Wells Fargo again noted that the Partnership Common Units had not had a reported closing sale price on the Nasdaq stock market in excess of $3.37 during the prior 18-month period. Also on July 10, 2024, representatives of Houlihan Lokey met with representatives of Wells Fargo in order to preview the Second Counterproposal.

On July 11, 2024, Nut Tree and Caspian sent a letter to a representative of Parent, who forwarded the letter to the Conflicts Committee. The letter, which Nut Tree and Caspian also made public through Bloomberg News, reiterated the non-binding proposal sent by Nut Tree and Caspian on June 21, 2024, to purchase the Partnership in a form that would result in holders of the Common Units receiving $4.00 per Common Unit in cash (the “Second Nut Tree Caspian Letter”), indicating that such proposal offered a significant 31% premium over the $3.05 per Common Unit offer made by Parent in the Parent Initial Proposal, and 23% over the closing price of the Common Units on July 9, 2024. Later that morning, representatives of Parent, Baker Botts and Wells Fargo discussed the public letter and the Second Nut Tree Caspian Letter. Following such discussion, Parent issued a press release reiterating its statement in the Parent Initial Proposal that Parent was interested only in acquiring all of the outstanding Public Common Units and had no interest in selling its interests in the Partnership or the General Partner or in pursuing any other strategic alternative involving the Partnership or the General Partner. Parent also indicated that it was not able to further comment at this time on its proposal, as it remained in active discussions with the Conflicts Committee.

On July 12, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Munsch Hardt, Houlihan Lokey and Potter Anderson, to discuss the Second Nut Tree Caspian

 

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Letter. Representatives of Munsch Hardt summarized the terms thereof, as well as the related investor communications and analyst commentary regarding the Second Nut Tree Caspian Letter. Representatives of Munsch Hardt and Potter Anderson again discussed with the Conflicts Committee the Conflicts Committee’s authority and duties, and the possible actions or responses available to the Conflicts Committee with respect to the Second Nut Tree Caspian Letter, as well as the positive and negative impacts thereof in light of Parent’s position that it had no interest in selling its interests in the Partnership or the General Partner or in pursuing any other strategic alternative involving the Partnership or the General Partner. Representatives of Potter Anderson provided the Conflicts Committee with an overview of Delaware law with respect to treatment of control premiums and certain considerations with respect to comparing an offer to acquire the equity interests of a company by a third party and an offer to acquire the equity interests of a company by a controlling owner. Next, the Conflicts Committee discussed the positive and negative impacts of their possible actions or responses to the Second Nut Tree Caspian Letter, in light of the price differential between the Parent Second Proposal and the proposal set forth in the Second Nut Tree Caspian Letter, which proposal was contingent upon Nut Tree and Caspian’s acquisition of the General Partner, as well as all of the Common Units.

At that same meeting on July 12, 2024, representatives of Houlihan Lokey discussed with the Conflicts Committee the response Houlihan Lokey received from Wells Fargo when Houlihan Lokey previewed the Second Counterproposal with Wells Fargo, and updated the Conflicts Committee on what Houlihan Lokey had learned with respect to the impact of Hurricane Beryl on the Partnership’s operations. The Conflicts Committee and representatives of Houlihan Lokey then discussed the Second Nut Tree Caspian Letter, making observations regarding, among other things, the viability of refinancing the Partnership’s existing debt and appropriate responses thereto. The Conflicts Committee then discussed the viability of the proposal set forth in the Second Nut Tree Caspian Letter in light of numerous other factors, including, among other things, the need for consent of Parent and/or the General Partner in connection with such proposal. Representatives of Houlihan Lokey then confirmed that in their discussions with Nut Tree and Caspian on July 1, 2024, on behalf of the Conflicts Committee, representatives of Nut Tree and Caspian stated that they would require the acquisition of the General Partner as well as all of the Common Units, and could revise their proposal to clarify that point to the extent unclear. Representatives of Houlihan Lokey confirmed that the $4.00 unit price stated in the Second Nut Tree Caspian Letter was for the Common Units only. The Conflicts Committee and representatives of Houlihan Lokey and Munsch Hardt then discussed what response, if any, to make with respect to the Second Nut Tree Caspian Letter, following which discussion the Conflicts Committee ultimately decided to send a written response to Nut Tree and Caspian requesting that Nut Tree and Caspian confirm their position.

On July 15, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Munsch Hardt, Houlihan Lokey and Potter Anderson, to further discuss the Conflicts Committee’s response to the Second Nut Tree Caspian Letter, and determined that it should include a request for written confirmation as to whether the proposal was contingent upon their acquisition of the General Partner (as well as all of the Common Units), which was referenced as a potential transaction structure in the Second Nut Tree Caspian Letter.

Later that day, at the direction of and on behalf of the Conflicts Committee, Houlihan Lokey transmitted a letter from the Conflicts Committee to Nut Tree and Caspian directing them to contact Parent with respect to the sale of the General Partner and noting that it was the Conflicts Committee’s understanding from Nut Tree and Caspian’s conversation with representatives of Houlihan Lokey in response to the Second Nut Tree Caspian Letter that such proposal was contingent upon its acquisition of the General Partner, in addition to all of the Common Units, and asking Nut Tree and Caspian to communicate with Houlihan Lokey should they desire to clarify or improve their proposal. Additionally, Munsch Hardt sent additional diligence requests to Parent.

On July 16, 2024, Munsch Hardt transmitted additional diligence requests to Parent. That same day, and on July 18, 2024, the Conflicts Committee received additional diligence responses from Parent.

On July 19, 2024, a representative of Parent received another letter from Nut Tree and Caspian (the “Third Nut Tree Caspian Letter”), which was then transmitted to the Conflicts Committee. That same day, Nut Tree and

 

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Caspian made the Third Nut Tree Caspian Letter public. The Third Nut Tree Caspian Letter reiterated the terms of its offer in the Nut Tree Caspian Proposal and the Second Nut Tree Caspian Letter and made certain remarks about the Conflicts Committee process. That same day, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, to discuss the Third Nut Tree Caspian Letter. First, the Conflicts Committee and representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson discussed the interdependence of Parent and the Partnership and how such interdependence would make a change of control transaction with Nut Tree and Caspian or other alternative bidders highly unlikely without the consent of Parent. Next, the group discussed Parent’s control of the General Partner, and the Conflicts Committee mandate (which did not include the authority to negotiate alternative transactions, which the Board could theoretically expand to include such authority, but due to the control of the General Partner by Parent, Parent could preclude such expansion of authority), and that the various responses by Parent could reasonably be expected to have an adverse effect on the market price for the Common Units, which could lead to a lower negotiated price for the Partnership Unaffiliated Unitholders.

At that same meeting, the Conflicts Committee and representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson then discussed certain inaccuracies included in the Third Nut Tree Caspian Letter, and potential responses thereto. After discussion, the Conflicts Committee authorized Houlihan Lokey to send an email to Nut Tree and Caspian responding to the issues set forth in the Third Nut Tree Caspian Letter, including Nut Tree and Caspian’s failure to confirm in response to the Conflicts Committee’s July 15 letter to Nut Tree and Caspian, whether the proposal set forth in the Second Nut Tree Caspian Letter was contingent upon Nut Tree and Caspian’s acquisition of the General Partner, in addition to all of the Common Units, and their willingness to enter into a nondisclosure or standstill agreement, and to offer Houlihan Lokey’s availability for a meeting with Nut Tree and Caspian.

Later that same day, on July 19, 2024, representatives of Houlihan Lokey and Wells Fargo discussed an update on the diligence process and transaction timing. Representatives of Wells Fargo informed Houlihan Lokey that Parent’s counterproposal to the Second Counterproposal had been delayed due to Parent’s focus on its earnings release and finalizing financing for the transaction.

Also on July 19, 2024, Houlihan Lokey sent additional diligence requests to Parent and requested a meeting with Parent for early the following week, to be focused on the latest earnings release and updates to the financial model.

On July 22, 2024, Houlihan Lokey, at the direction of and on behalf of the Conflicts Committee, sent an email to Nut Tree and Caspian responding to the Third Nut Tree Caspian Letter by again requesting responses from Nut Tree and Caspian as to whether (i) the proposal set forth in the Second Nut Tree Caspian Letter was conditioned on the purchase of the General Partner, in addition to all of the Common Units, or consent of the General Partner and/or Parent, (ii) the proposal set forth in the Second Nut Tree Caspian Letter was conditioned on any action by counterparties to commercial contracts, and (iii) Nut Tree and Caspian would be willing to enter into a confidentiality agreement and being restricted from trading in debt and equity securities of the Partnership.

On July 23, 2024, representatives of Parent and Wells Fargo continued to discuss certain financial aspects regarding the transaction and the ability of Parent to increase the purchase price of the Proposed Transaction, including the financing of such purchase price through an increase of Parent’s existing credit facility.

On July 23, 2024, representatives of Houlihan Lokey had a videoconference meeting with representatives of the Partnership in order to discuss the Partnership’s latest earning release and any potential updates to the financial model, which the Partnership provided later that day.

Later on July 23, 2024, representatives of Houlihan Lokey had a videoconference meeting with Wells Fargo during which, at the direction of the Parent Board, Wells Fargo verbally communicated to Houlihan Lokey a non-binding proposal by Parent to acquire all of the Public Common Units for a cash purchase price of $3.70 per

 

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Common Unit (the “Parent Third Proposal”), which would be conditioned on the Simple Majority Provision. Following such meeting, Parent sent Munsch Hardt a letter providing for the Parent Third Proposal, which letter was forwarded to the Conflicts Committee.

On July 24, 2024, in response to Houlihan Lokey’s July 22, 2024 email to Nut Tree and Caspian, Latham & Watkins, on behalf of Nut Tree and Caspian, sent an email (the “July 24 Nut Tree Caspian Email”) to Houlihan Lokey stating that Nut Tree and Caspian had been seeking and continued to seek to engage, and desired to arrange a meeting, with the Conflicts Committee to discuss the Third Nut Tree Caspian Letter and the view of Nut Tree and Caspian on the value of the Partnership. The email also communicated Nut Tree’s and Caspian’s recommendation to the Conflicts Committee that any transaction with Parent require a Majority of the Minority Provision and that Nut Tree and Caspian remained ready to enter into a reasonable confidentiality agreement at an appropriate time.

That same day, the Conflicts Committee held a meeting, which was held by videoconference and attended by representatives of Houlihan Lokey and Munsch Hardt, to discuss its response to the Parent Third Proposal. Representatives of Munsch Hardt described the history of the offers and counteroffers that had been exchanged between Parent and the Conflicts Committee with respect to the Proposed Transaction and then discussed the terms of the Parent Third Proposal, including the purchase price, Parent’s continued rejection of the Majority of the Minority Provision, and Parent’s reiteration that Parent was interested only in acquiring all of the Public Common Units, and had no interest at this time in selling any of its or its subsidiaries’ interests in the Partnership or the General Partner, or pursuing other strategic alternatives involving the Partnership or the General Partner. Representatives of Houlihan Lokey and Munsch Hardt then described the July 24 Nut Tree Caspian Email received by Houlihan Lokey which they forwarded to Munsch Hardt, and which Munsch Hardt then distributed to the Conflicts Committee and other attendees of the meeting. The Conflicts Committee and representatives of Houlihan Lokey and Munsch Hardt discussed Nut Tree’s and Caspian’s continued failure to address the Conflicts Committee’s requests for additional information and clarification, including questions regarding the General Partner Interest in the Partnership and material contracts, and Nut Tree’s and Caspian’s request for a meeting with the Conflicts Committee. The Conflicts Committee and representatives of Houlihan Lokey and Munsch Hardt then discussed a potential response to the July 24 Nut Tree Caspian Email. The Conflicts Committee discussed with representatives of Houlihan Lokey and Munsch Hardt that the Conflicts Committee did not have the authority to pursue consummation of an alternative proposal to the Proposed Transaction, but did have authority to consider alternative proposals as part of the Conflicts Committee’s evaluation of the Proposed Transaction. As a result, the Conflicts Committee instructed and authorized Houlihan Lokey to send an email to Nut Tree and Caspian, in response to the July 24 Nut Tree Caspian Email, in order to schedule a meeting between Nut Tree and Caspian and Houlihan Lokey (on the Conflicts Committee’s behalf) so that Houlihan Lokey could obtain additional information regarding Nut Tree’s and Caspian’s view of the value of the Partnership. Representatives of Houlihan Lokey then discussed diligence updates with the Conflicts Committee, as well as changes to the financial model.

At that same meeting on July 24, 2024, the Conflicts Committee discussed with representatives of Houlihan Lokey and Munsch Hardt how to respond to the Parent Third Proposal, in light of the July 24 Nut Tree Caspian Email, and the financial information presented by Houlihan Lokey. They decided to continue to evaluate the Parent Third Proposal, but to not respond until (i) Houlihan Lokey met with Nut Tree and Caspian in order to understand Nut Tree’s and Caspian’s view of the value of the Partnership, and had the opportunity to report that information back to the Conflicts Committee, and (ii) Houlihan Lokey presented an updated financial analysis to the Conflicts Committee, which was anticipated to take place early the week of July 29, 2024. In connection with this discussion, the Conflicts Committee and representatives of Houlihan Lokey and Munsch Hardt also discussed potential responses by the Conflicts Committee to Parent’s continued rejection of the Conflicts Committee’s proposition that the Proposed Transaction require a Majority of the Minority Provision, and determined that the Conflicts Committee would again propose such requirement in their future response to the Parent Third Proposal.

 

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Later that same day, on July 24, 2024, at the direction of and on behalf of the Conflicts Committee, Houlihan Lokey responded to Nut Tree and Caspian, informing Nut Tree and Caspian that the Conflicts Committee had authorized Houlihan Lokey to meet with Nut Tree and Caspian, and asked for their availability in order to schedule that meeting.

On July 29, 2024, a representative of Parent received another letter from Nut Tree and Caspian, which was then transmitted to the Conflicts Committee and which Nut Tree and Caspian made public, indicating, among other things, that Nut Tree and Caspian were increasing their offer to acquire all Common Units of the Partnership from $4.00 to $4.50 per Common Unit (the “Second Nut Tree Caspian Proposal”) and asking to meet directly with the Conflicts Committee. The letter also expressed disappointment that the Conflicts Committee had not met with Nut Tree and Caspian directly, offering instead a meeting with Houlihan Lokey.

On July 30, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, to discuss its response to the Parent Third Proposal and the Second Nut Tree Caspian Proposal. Representatives of Houlihan Lokey discussed presentation materials regarding diligence and financial model updates to the previous preliminary financial analysis, and highlighted that there had been minor changes to the financial model since Houlihan Lokey’s July 1, 2024 presentation materials previously discussed with the Conflicts Committee as a result of, among other things, Houlihan Lokey’s receipt of revised company projections and second quarter financials, diligence materials and the impact of Hurricane Beryl. Representatives of Houlihan Lokey then discussed the Partnership’s Common Unit performance since the Parent Initial Proposal, including a recent spike in the trading price of the Common Units, and it was noted that this spike in trading price presumably resulted from publication of the Second Nut Tree Caspian Proposal. Representatives of Houlihan Lokey also noted that the market price discount to $4.50 per unit suggested substantial doubt regarding the feasibility of a transaction with Nut Tree and Caspian. Representatives of Houlihan Lokey then summarized the preliminary premiums paid data from precedent MLP transactions and compared the offer set forth in the Parent Third Proposal to those precedent transactions.

At that same meeting, following Houlihan Lokey’s presentation, representatives of Potter Anderson and Munsch Hardt again discussed with the Conflicts Committee the scope of authority granted to the Conflicts Committee by the Board, as well as the duties of the Conflicts Committee and the possible actions or responses available to the Conflicts Committee with respect to the Proposed Transaction and the Second Nut Tree Caspian Proposal. They again discussed that the proposal from Nut Tree and Caspian was not a viable or actionable proposal because Parent continued to maintain its position that it was only interested in acquiring all of the Public Common Units and was not interested in selling any of its or its subsidiaries’ interests in the Partnership or the General Partner, or pursuing an alternative transaction at this time, and due to the effect a change of control would have on the public and private debt of the Partnership, interrelated contracts and business relationship the Partnership has with Parent, including the termination of contracts material to the business of the Partnership. Representatives of Potter Anderson also discussed with the Conflicts Committee the anti-takeover protections included in the Partnership Agreement. The Conflicts Committee discussed timing of the Proposed Transaction, and discussed with representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson that the Conflicts Committee’s focus remained on the best interest of the Partnership and the Partnership Unaffiliated Unitholders, and that it was for the Conflicts Committee to consider whether this was the right time to effect the Proposed Transaction. The Conflicts Committee reaffirmed its belief that it was an appropriate time to effect the Proposed Transaction subject to acceptable terms. In addition, the Conflicts Committee and representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson discussed the Second Nut Tree Caspian Proposal, and representatives of Houlihan Lokey discussed their observations. The group discussed Nut Tree’s and Caspian’s continued failure to address the Conflicts Committee’s requests for additional information and clarification of certain material terms of the Second Nut Tree Caspian Proposal with the Partnership. Representatives of Houlihan Lokey confirmed that Nut Tree and Caspian previously informed Houlihan Lokey that Nut Tree and Caspian were only interested in a transaction if Nut Tree and Caspian could acquire the General Partner as well as all of the Common Units. The group then discussed how to respond to the Second Nut Tree Caspian Proposal and that the Conflicts Committee did not have the authority to pursue consummation of an alternative transaction but did

 

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have authority to consider alternative proposals as part of the Conflicts Committee’s evaluation of the Proposed Transaction. Ultimately, the Conflicts Committee determined that it would not respond to the Second Nut Tree Caspian Proposal at this time. The Conflicts Committee then determined to wait to respond to the Parent Third Proposal, in order to allow the market to stabilize following the public Second Nut Tree Caspian Proposal.

On July 31, 2024, the Conflicts Committee met with representatives of Potter Anderson and Munsch Hardt by videoconference in order to discuss the duties of the members of the Conflicts Committee with respect to the Proposed Transaction and with respect to the nonactionable proposals from Nut Tree and Caspian. The Conflicts Committee asked representatives of Potter Anderson various questions regarding their duties, and discussed Nut Tree’s and Caspian’s unwillingness to purchase the Public Common Units without also purchasing the General Partner and all of the Common Units held by Parent and its subsidiaries.

On August 2, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, to discuss its response to the Parent Third Proposal. Representatives of Houlihan Lokey discussed their presentation materials, which included updated information with respect to implied premiums and valuation metrics, performance of the Common Units since the Parent Initial Proposal, and updates to equity research in regards to the Partnership. After discussion, the Conflicts Committee determined that it would respond to the Parent Third Proposal with a counter-offer at $4.25 per Common Unit in cash, and requiring a Majority of the Minority Provision (the “Third Counterproposal”). On that same day, at the direction of and on behalf of the Conflicts Committee, representatives of Houlihan Lokey held a meeting with representatives of Wells Fargo in order to preview the Third Counterproposal and to discuss timing moving forward. Also on August 2, 2024, Houlihan Lokey, at the direction of and on behalf of the Conflicts Committee, sent a letter to Wells Fargo setting forth the terms of the Third Counterproposal.

On August 5, 2024, representatives of Parent, Baker Botts and Wells Fargo discussed the Third Counterproposal and the possibility of a call between Mr. Martin, as President and Chief Executive Officer of Parent, and Mr. Kelley.

On August 8, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, to discuss the upcoming meeting between Mr. Kelley and Mr. Martin for the purpose of negotiating an acceptable per unit price for the Proposed Transaction. The Conflicts Committee discussed and confirmed its view that effecting the Proposed Transaction at this time remained prudent. The Conflicts Committee confirmed that, from its perspective, the Second Nut Tree Caspian Proposal remained non-actionable. The Conflicts Committee and representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson then discussed the range of acceptable Common Unit prices for purposes of Mr. Kelley’s upcoming meeting with Mr. Martin. The Conflicts Committee authorized Mr. Kelley to forego the requirement of a Majority of the Minority Provision, subject to a per unit price in excess of $4.00.

Later that day, Mr. Kelley and Mr. Martin met by telephone in order to negotiate terms with respect to the Proposed Transaction. During that meeting, Mr. Kelley and Mr. Martin agreed that the Proposed Transaction would take place at a price of $4.02 per Common Unit in cash, subject to Mr. Martin obtaining approval by the board of directors of Parent, and conditioned upon a Simple Majority Provision.

Thereafter, also on August 8, 2024, the Conflicts Committee met by videoconference, which was attended by representatives of Houlihan Lokey and Munsch Hardt, to discuss the meeting that Mr. Kelley had with Mr. Martin earlier that day. Mr. Kelley updated the Conflicts Committee as to the negotiation and of the agreement with respect to the Proposed Transaction subject to a definitive agreement.

On August 9, 2024, representatives of Houlihan Lokey met with representatives of Wells Fargo in order to discuss timing of next steps with respect to the Proposed Transaction. Representatives of Wells Fargo informed representatives of Houlihan Lokey that Parent had upcoming meetings to advance the financing, and expressed that Baker Botts would be sending an initial draft of the Merger Agreement.

 

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On August 12, 2024, Parent submitted a non-binding proposal to acquire all Public Common Units for a cash purchase price of $4.02 per Common Unit (the “Parent Fourth Proposal”). The Parent Fourth Proposal included the condition of a Simple Majority Provision.

On August 13, 2024, representatives of Parent discussed with Regions Bank Parent’s model and various assumptions within the model, as well as the increased purchase price with respect to the Proposed Transaction, to discuss the possible consideration of the financing of the Proposed Transaction by the credit committee of Regions Bank.

On August 13, 2024, representatives of Baker Botts and Parent discussed the key terms to be included in the initial draft of the Merger Agreement.

In August 2024, a representative from Caspian sent a handwritten letter to Mr. Martin, asking for the opportunity to meet with him to discuss any potential misunderstanding regarding the proposals from Nut Tree and Caspian and noting optimism about the Partnership.

From August 13, 2024 to August 20, 2024, Baker Botts prepared a draft of the Merger Agreement and, on August 20, 2024, Baker Botts sent a draft of the Merger Agreement to Parent.

On August 14, 2024, Parent revised its model to reflect a Management Loan in the amount of $5.0 million.

From August 20, 2024 to August 22, 2024, representatives of Baker Botts and Parent held several calls to finalize an initial draft of the Merger Agreement.

On August 22, 2024, Baker Botts sent the initial draft of the Merger Agreement to Munsch Hardt. The initial draft Merger Agreement provided, among other items, (i) that the Partnership could not solicit any proposal that could constitute an acquisition proposal (a “no-shop” provision), (ii) that the GP Board or the Conflicts Committee could only change its recommendation with respect to the Merger in certain circumstances, including if the GP Board or the Conflicts Committee, as the case may be, determined in good faith (after consultation with outside legal counsel) that in response to a superior proposal the failure to take such action would constitute a breach of its duties under applicable law, as modified by the Partnership Agreement, or the Partnership Agreement; (iii) for a “force the vote” provision that required the Partnership to hold the Special Meeting even if the Conflicts Committee made a Partnership Adverse Recommendation Change; (iv) for a Simple Majority Provision; (v) that the Partnership would be liable, in certain circumstances, for a termination fee equal to 3.5% of the aggregate consideration payable to Unitholders or, in certain other circumstances, an expense reimbursement of up to $5.0 million; (vi) for the HSR fee to be split equally between Parent and the Partnership; and (vii) that if the Merger Agreement were terminated in certain circumstances, Parent’s liability would be limited to an expense reimbursement up of to $5.0 million (without a corresponding termination fee by Parent). The Merger Agreement also contemplated delivery of a Support Agreement whereby Parent and its subsidiaries would agree to vote the Common Units held by such entities in favor of the Merger. Additionally, the Merger Agreement did not include any financing condition with respect to the Proposed Transaction and did not provide for the payment of the quarterly distribution for any completed quarter if the Closing occurred prior to the record date for such quarter.

On August 29, 2024, representatives of Parent had a call with representatives of Regions Bank and Wells Fargo Lending to review the Parent model, which had been updated to reflect actual results of Parent through July 2024. Such parties continued to have calls to review the model and discuss potential terms to complete the financing necessary for the Proposed Transaction.

On August 30, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Munsch Hardt, Houlihan Lokey and Potter Anderson, to discuss the initial draft of the Merger Agreement. Representatives of Munsch Hardt provided the Conflicts Committee with background information on

 

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the draft Merger Agreement, and then described certain material provisions, as well as proposed revisions to the draft Merger Agreement. The Conflicts Committee also discussed, with information provided by representatives of Munsch Hardt, Houlihan Lokey and Potter Anderson, the ranges of termination fees and expense reimbursement from precedent for related transactions. The Conflicts Committee unanimously approved of Munsch Hardt transmitting a revised draft of the Merger Agreement to Baker Botts on September 3, 2024 reflecting the revisions discussed during the meeting.

On September 3, 2024, Munsch Hardt sent a revised draft of the Merger Agreement to Baker Botts, pursuant to which, among other things, (i) the provision regarding the circumstances in which a Partnership Adverse Recommendation Change could be made was revised to include an Intervening Event Concept, (ii) the non-solicitation provision was revised to add a carveout (the “Non-Solicitation Carveout”) to allow the Partnership to discuss and negotiate Acquisition Proposals (as defined in the Merger Agreement) with third parties if the Conflicts Committee determined in good faith that (A) such Acquisition Proposal constitutes or could reasonably be expected to lead to or result in a Superior Proposal and (B) failure to take such action would be inconsistent with its duties under applicable law, as modified by the Partnership Agreement, (iii) the definitions of Acquisition Proposal and Superior Proposal were revised to apply to acquisitions of 25% (instead of 15%) and 51% (instead of 75%) or more of the Partnership’s outstanding Common Units, assets or Adjusted EBITDA, respectively, (iv) a provision was added requiring the distribution of regular quarterly cash distributions in amount no less than $0.005 per Common Unit including for the quarter immediately preceding the quarter in which the Closing occurs, (v) Parent’s right to terminate the Merger Agreement for the Partnership’s breach of the non-solicitation provision or its failure to hold the unitholder meeting following a Partnership Adverse Recommendation Change was deleted, (vi) a termination fee payable by Parent (the “Parent Termination Fee”) in the amount of $2.5 million was added in the event that Parent materially breached the Merger Agreement or otherwise failed to close under the Merger Agreement following a notice from the Partnership that all closing conditions have been satisfied,(vii) the Partnership Termination Fee was changed from 3.5% of the aggregate Merger Consideration to $2.5 million, (viii) the Partnership would be required, until the Effective Time, to declare and pay quarterly cash distributions to the Unitholders, (iv) certain conduct of business restrictions on the Partnership were removed, (x) Parent would be required to pay the entire HSR fee, and (xi) an expanded Parent financing representation was added. In addition, the revised draft of the Merger Agreement added Support Agreements from Senterfitt, Mr. Martin and Mr. Bondurant.

On September 5, 2024, Munsch Hardt sent drafts of the Support Agreements to Baker Botts requiring each of the Support Parties to vote all Units beneficially owned or held of record by them.

On September 6, 2024, representatives of Baker Botts and Parent held a call to discuss material issues presented in Munsch Hardt’s revised draft of the Merger Agreement.

On September 10, 2024, Baker Botts sent a revised draft of the Merger Agreement to Munsch Hardt, pursuant to which, among other things, the Merger Agreement was to revised (i) to add carveouts to the Intervening Event definition regarding Parent and the Partnership entering into the Merger Agreement, events generally affecting the industries in which the Partnership operates and general economic conditions, (ii) to delete the Non-Solicitation Carveout, (iii) to revise the applicable percentage in the Superior Proposal definition from 51% to 70%, (iv) to add back a right for Parent to terminate the Merger Agreement for the Partnership’s breach of the non-solicitation provision or its failure to hold the unitholder meeting following a Partnership Adverse Recommendation Change, (v) to make the Parent Termination Fee payable only in the event that Parent failed to close under the Merger Agreement following a notice from the Partnership that all closing conditions have been satisfied, removing the payment of such fee for a material breach of the Merger Agreement and removing the requirement that Parent also pay the $5.0 million reimbursement of the Partnership’s expenses in such circumstance, (vi) to limit the financing representation provided by Parent and (vii) to provide that the HSR fee would be split equally between Parent and the Partnership. The revised draft of the Merger Agreement reflected Parent’s acceptance of the $2.5 million amount for each of the Partnership Termination Fee and Parent Termination Fee and provided that neither party could recover both the applicable termination fee and the reimbursement of expenses.

 

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On September 13, 2024, Munsch Hardt sent a draft of the Merger Agreement, including additional revisions, to the Conflicts Committee for review in advance of the September 16, 2024 Conflicts Committee meeting.

On September 16, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, to discuss the draft Merger Agreement. Representatives of Munsch Hardt and Houlihan Lokey summarized for the Conflicts Committee the additional information they have learned as it relates to the process and timing of Parent obtaining financing for the Proposed Transaction. The Conflicts Committee and representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson discussed the financing and elected to seek additional information from Parent with respect thereto before sending a revised draft of the Merger Agreement back to Parent. Representatives of Munsch Hardt then led the group in a discussion of the revised draft of the Merger Agreement, as well as proposed revisions to the draft Merger Agreement. The group discussed certain provisions, including but not limited to the termination provisions and the related fees and expenses that have been proposed (and ranges of such fees and expenses in precedent transactions), particularly in light of additional information with respect to Parent’s financing. The Conflicts Committee approved of waiting to respond to the latest Parent draft of the Merger Agreement until after the Conflicts Committee had received answers from Parent as it related to additional diligence requests.

Later that day, Munsch Hardt sent follow-up diligence requests to Parent and Houlihan Lokey sent follow-up diligence requests to Wells Fargo, in each case related to the status of the financing of the transaction.

On September 17, 2024, a representative of Parent contacted Munsch Hardt in order to provide responses to the follow-up diligence requests regarding the status of Parent’s financing. Representatives of Munsch Hardt communicated such responses to the Conflicts Committee later that day.

On September 20, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson. During this meeting, there was discussion of the revised draft of the Merger Agreement, including the termination fee provisions and the status of Parent’s financing. In light of the status of Parent’s financing, the group discussed the termination fee provisions set forth in the draft Merger Agreement and discussed the ranges of such termination fees that have been included in precedent for related transactions. Representatives of Houlihan Lokey and Munsch Hardt then both shared that they had communications with Wells Fargo and a representative of Parent, respectively, regarding the status and nature of the financing and, after discussion of those communications with the Conflicts Committee, the Conflicts Committee decided to have Mr. Kelley arrange for a meeting with Mr. Martin to negotiate the Parent Termination Fee, rather than including the Parent Termination Fee in a revised version of the Merger Agreement. Representatives of Munsch Hardt also discussed with the Conflicts Committee certain other provisions of the Merger Agreement, and the Conflicts Committee unanimously approved of Munsch Hardt transmitting a revised draft of the Merger Agreement to Baker Botts shortly after the Committee meeting. The Conflicts Committee also unanimously approved of Mr. Kelley meeting with Mr. Martin, in order to negotiate the Parent Termination Fee.

Following that Conflicts Committee meeting, on the same day, a representative of Munsch Hardt called a representative of Baker Botts in order to preview that Munsch Hardt would be sending a revised draft of the Merger Agreement over shortly and to indicate that the amount of the Parent Termination Fee would be left blank and was to be negotiated between the Chairman of the Conflicts Committee and Mr. Martin early the following week, assuming the other terms to the Merger Agreement are agreed upon. Representatives of Munsch Hardt and Baker Botts also briefly discussed timing and discuss next steps with respect to the Proposed Transaction.

On September 20, 2024, Munsch Hardt sent a revised draft of the Merger Agreement to Baker Botts, pursuant to which the Merger Agreement was revised to, among other things, reinsert the Non-Solicitation Carveout and to delete the amount of the Parent Termination Fee in the event of a failure to close and noted that such amount was to be discussed by the parties, particularly given the circumstances in which Parent would not

 

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have a binding letter of commitment with respect to the proposed increase to its revolving credit facility to fund the Merger Consideration. Later that afternoon, Baker Botts sent revised drafts of the Support Agreements to Munsch Hardt.

Also on September 20, 2024, Baker Botts transmitted revised drafts of the Support Agreements to Munsch Hardt, which revised drafts, among other things, provided that the obligations of the Unitholders thereunder are several, rather than joint.

On September 23, 2024, Houlihan Lokey met with Parent management by videoconference in order to go over confirmatory due diligence in advance of potentially issuing Houlihan Lokey’s fairness opinion later in the week. Parent management noted that the environment for refiners had weakened over the past several weeks.

On September 24, 2024, representatives of Baker Botts and Parent held a call to discuss the material issues in the revised draft of the Merger Agreement, and later that afternoon, representatives of Baker Botts and Munsch Hardt had a call to discuss the Merger Agreement and particularly Munsch Hardt’s inclusion of the Non-Solicitation Carveout given the Partnership’s inability to consummate an alternative transaction with a third party without Parent’s consent.

Also on September 24, 2024, Mr. Kelley called Mr. Booth, as Mr. Martin was unavailable, in order to negotiate the Parent Termination Fee, but they did not come to an agreement. Mr. Kelley and Mr. Booth agreed to meet by telephone again on September 26, 2024, to discuss the Parent Termination Fee.

On September 25, 2024, Munsch Hardt sent an email to Baker Botts, requesting that Baker Botts incorporate a revision to the definition of “Partnership Unaffiliated Unitholders” set forth in the Merger Agreement, to exclude Senterfitt and the officers and directors of Parent and its Subsidiaries from such definition, and informing Baker Botts that the Conflicts Committee would accept the removal of the Non-Solicitation Carveout. Munsch Hardt also informed Baker Botts that Mr. Kelley and Mr. Booth were in discussions with respect to the Parent Termination Fee.

On September 25, 2024, representatives of Parent held a call with Nut Tree and Caspian in connection with Nut Tree’s and Caspian’s indication of willingness to provide financing options. Representatives of Nut Tree and Caspian also told representatives of Parent that they were unable to hold Common Units in the name of Nut Tree or Caspian but did have an economic interest in the aggregate of approximately 12% of the Common Units. Representatives of Parent told Nut Tree and Caspian that Parent would reach out if such financing options were of interest to Parent.

On September 26, 2024, Mr. Booth discussed with Mr. Kelley the amount of the Parent Termination Fee, including Parent’s financing plans and the lack of a binding letter of commitment with respect to the proposed increase to its existing credit facility to fund the Merger Consideration. Mr. Kelley and Mr. Booth discussed and agreed upon a Parent Termination Fee of $6.0 million.

Later that afternoon, Baker Botts sent a revised draft of the Merger Agreement to Munsch Hardt (i) removing the Non-Solicitation Carveout and related provisions and (ii) adding the $6.0 million for the Parent Termination Fee. Baker Botts also sent Munsch Hardt a draft of the Press Release. Munsch Hardt forwarded both the revised draft of the Merger Agreement and the draft of the Press Release to the Conflicts Committee.

On September 27, 2024, Regions Bank confirmed to Parent that it had received credit approval with respect to the potential financing for the Proposed Transaction.

On September 30, 2024, Wells Fargo Lending confirmed to Parent that it had received credit approval with respect to the potential financing for the Proposed Transaction.

 

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Between September 30, 2024 and October 3, 2024, Baker Botts and Munsch Hardt incorporated final changes into the Merger Agreement, Support Agreements, Press Release, and other transaction documents.

On the morning of October 1, 2024, the Parent Board held a meeting to discuss the Merger Agreement and the financing of the Merger Consideration and the related transaction costs, including the potential amendment to the revolving credit facility to, among other things, increase the revolving commitments to be up to $180.0 million and add a Term Loan of up to $20.0 million, the potential guarantee by Mr. Martin of some or all of the Term Loan, and the potential $5.0 million Management Loan (collectively, the “Financing Matters”). At the meeting, representatives of Wells Fargo reviewed Wells Fargo’s preliminary financial analysis regarding the transaction and Parent’s plan to finance the Proposed Transaction, and representatives of Baker Botts provided an overview of the transaction approval process.

On October 1, 2024, Parent provided an updated financial model to Houlihan Lokey.

On October 2, 2024, Baker Botts transmitted to Munsch Hardt a draft of the Form 8-K to be filed after signing the Merger Agreement.

Also on October 2, 2024, representatives of Munsch Hardt and Houlihan Lokey participated in a videoconference with representatives of Parent to discuss the status of Parent’s financing approvals, Parent’s communication with Nut Tree and Caspian on September 25, 2024, changes in operating covenants set forth in the draft Merger Agreement, and updates to the financial model. In addition, representatives Munsch Hardt and Houlihan Lokey discussed with Parent next steps, and timing as it relates to review and potential approval of the proposed Merger Agreement.

On the morning of October 3, 2024, the Parent Board held a meeting with representatives of Wells Fargo and Baker Botts to discuss and approve the Merger Agreement and the Financing Matters. The Parent Board, by unanimous approval, in good faith, (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to Parent, its stockholders and the beneficiaries of Parent’s employee stock ownership trusts, and (B) in the best interests of Parent, its stockholders and the beneficiaries of Parent’s employee stock ownership trusts, and (ii) approved the adoption of the Merger Agreement, the execution, delivery and performance of the Merger Agreement, Parent’s Support Agreement and the consummation of the transactions contemplated thereby, including the Merger. At the meeting, Wells Fargo reviewed its financial analysis of the Merger Consideration and, at the request of the Parent Board, rendered an oral opinion to the Parent Board, which was subsequently confirmed by delivery of a written opinion dated October 3, 2024, to the effect that, as of October 3, 2024, and based upon and subject to the assumptions, qualifications, limitations and other matters set forth therein, the Merger Consideration to be paid by Parent pursuant to the Merger Agreement was fair, from a financial point of view, to Parent.

On October 3, 2024, the Conflicts Committee held a meeting by videoconference, which was attended by representatives of Houlihan Lokey, Munsch Hardt and Potter Anderson, to discuss the Proposed Transaction, including the terms and conditions of the draft Merger Agreement and the Support Agreements. At the meeting, Munsch Hardt summarized the terms of the Proposed Transaction, and the process leading up to the current draft of the proposed Merger Agreement, including the evolution of Parent’s proposals and the Partnership’s counterproposals with respect to the Merger, including negotiations regarding the Merger Consideration and other material terms of the Merger Agreement and the Support Agreements. Additionally, representatives of Munsch Hardt described the history of proposals received from Nut Tree and Caspian, which the Conflicts Committee ultimately determined were not viable or actionable, due to Parent’s repeated position that it was only interested in acquiring all of the Public Common Units and that Parent was not interested in selling any of its or its subsidiaries’ interests in the Partnership or the General Partner or pursuing other strategic alternatives involving the Partnership or the General Partner, Nut Tree and Caspian were only interested in a transaction if Nut Tree and Caspian could acquire the General Partner as well as all of the Common Units (including those

 

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which Parent had stated repeatedly were not for sale), and due to the effect a change of control would have on the public and private debt of the Partnership, interrelated contracts and business relationship the Partnership has with Parent, including the termination of contracts material to the business of the Partnership. The Conflicts Committee however confirmed that it took into consideration in the process of negotiations with Parent and in determining the final Merger Consideration the values set forth by Nut Tree and Caspian in their proposals, as well as the information relating to such values as referenced in the proposals. The Conflicts Committee noted that in the September 25, 2024 telephone call, Nut Tree and Caspian advised Parent that they were unable to hold Common Units in the name of Nut Tree or Caspian but did have an economic interest in the aggregate of approximately 12% of the Common Units. Representatives of Munsch Hardt then described the key terms and provisions of the Merger Agreement and the Support Agreements, and discussed with the Conflicts Committee the history of negotiations of such agreements. During this discussion, representatives of Munsch Hardt noted, along with other terms of the Merger Agreement, the limitations on the Partnership’s ability to solicit or entertain additional acquisition proposals, the conditions for closing, the representations and covenants of the parties, circumstances in which the Partnership or Parent could terminate the Merger Agreement, and potential liabilities of the parties if the Merger Agreement were to be terminated in various circumstances (including termination fees and the payment of expenses). The Conflicts Committee members discussed among themselves and with their advisors and confirmed the merits of doing a transaction now as compared to maintaining the status quo. The Conflicts Committee also discussed the control that Parent has, through its control of the General Partner and its approval rights for the Merger as well as any other similar or alternative transaction. The Conflicts Committee and its advisors also discussed the terms of the Support Agreements and the parties thereto.

At that same meeting, a discussion ensued among the Conflicts Committee and its advisors regarding the reasons for the Merger (see “Special Factors — Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal”). Next, representatives of Munsch Hardt and Potter Anderson described the contractual independence standards set forth in the Partnership Agreement and the Conflicts Committee Charter, and confirmed with the members of the Conflicts Committee that they each remained independent under such standards. Each Conflicts Committee member verbally confirmed his continuing independence. Representatives of Munsch Hardt and Potter Anderson then again discussed the duties of the Conflicts Committee in connection with the Merger, and described the Special Approval provisions of Section 7.9 of the Partnership Agreement. At the request of the Conflicts Committee, representatives of Houlihan Lokey then reviewed and discussed its financial analysis which reflected the updated projections provided by Parent on October 1, 2024. Thereafter, at the request of the Committee, representatives of Houlihan Lokey provided its oral opinion, confirmed by delivery of a written opinion dated October 3, 2024 shortly after the conclusion of the Conflicts Committee meeting, that as of the date of such opinion, and based upon and subject to the assumptions, qualifications, limitations and other matters set forth therein, and in reliance thereon, it was Houlihan Lokey’s opinion that the Consideration to be received by the Partnership Unaffiliated Unitholders pursuant to the Merger Agreement, is fair, from a financial point of view, to the Partnership Unaffiliated Unitholders. The Conflicts Committee then, based upon all of the information made available to the Conflicts Committee at or prior to the meeting (including, without limitation, its express reliance on Houlihan Lokey’s Opinion to the Conflicts Committee) and after an evaluation of, among other things, the proposed terms and conditions of the Merger Agreement and the Support Agreements, unanimously, in good faith, (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved (such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including Section 7.9(a) thereof) the Merger Agreement, the Support Agreements, and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) recommended that the GP Board approve the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iv) recommended that the GP Board submit the Merger Agreement and the Merger to a vote of the Unitholders, and (v) recommended, and recommended that the GP Board resolve to recommend, approval of the Merger Agreement and the Merger by the Unitholders.

 

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Following the receipt of the recommendation of the Conflicts Committee, the GP Board, unanimously and in good faith, (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) authorized and directed that approval of the Merger Agreement and the Merger be submitted to a vote of the Unitholders, and (iv) recommended approval of the Merger Agreement and the Merger by the Unitholders.

Later that afternoon on October 3, 2024, the parties executed the Merger Agreement and the Support Agreements, and the Partnership issued a press release and filed a Form 8-K announcing entry into the Merger Agreement and the Support Agreements, and attaching a press release announcing the Merger Agreement and the Support Agreements. In addition, Parent (together with Resource, Cross and Martin Product) and Mr. Martin (together with Senterfitt) filed amendments to their respective Schedule 13Ds with respect to the Partnership disclosing the execution of the Merger Agreement and the Support Agreements.

On October 22, 2024, Nut Tree and Caspian issued as a press release, expressing their opposition to the Merger and intent to file a proxy statement and solicit proxies to vote against the Merger Proposal. The press release noted that Nut Tree and Caspian had a combined economic exposure in the Partnership of approximately 13.2% of the outstanding Common Units through certain cash-settled derivative agreements.

Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties

Under Section 7.9(a) of the Partnership Agreement, whenever a potential conflict of interest exists or arises between the General Partner or any of its affiliates, on the one hand, and the Partnership, the Operating Partnership, any other Group Member, any Partner or any Assignee (each as defined in the Partnership Agreement), on the other, any resolution or course of action by the General Partner or its affiliates in respect of such conflict of interest will be permitted and deemed approved by the General Partner and all of the Partnership’s limited partners and will not constitute a breach of the Partnership Agreement, of the Operating Partnership Agreement (as defined in the Partnership Agreement), of any agreement contemplated in the Partnership Agreement or the Operating Partnership Agreement, or of any duty stated or implied by law or equity, if the resolution or course of action is, or by operation of the Partnership Agreement is deemed to be, fair and reasonable to the Partnership. The General Partner will be authorized but not required in connection with its resolution of such conflict of interest to seek Special Approval of such resolution, and the General Partner may also adopt a resolution or course of action that has not received Special Approval. Special Approval is defined in the Partnership Agreement as approval by a majority of the members of the Conflicts Committee. Any such approval by the Conflicts Committee will be subject to the presumption that, in making its decision, the Conflicts Committee acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the Partnership, and in any proceeding brought by any Unitholder or by or on behalf of such Unitholder or any other Unitholders or the Partnership challenging such approval, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption.

The Conflicts Committee determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, and approved, such approval constituting “Special Approval” for all purposes under the Partnership Agreement, the Merger Agreement, the Support Agreements and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger.

The GP Board determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are fair and reasonable to the Partnership and the

 

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Partnership Unaffiliated Unitholders and in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, and approved the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger.

Under Section 7.9(b) of the Partnership Agreement, whenever the General Partner or any of its affiliates is permitted or required to make a decision (i) in its “sole discretion” or “discretion,” that it deems “necessary or appropriate” or “necessary or advisable” or under a grant of similar authority or latitude, except as otherwise provided in the Partnership Agreement, the General Partner or such affiliate will be entitled to consider only such interests and factors as it desires and will have no duty or obligation to give any consideration to any interest of, or factors affecting, the Partnership, the Operating Partnership, any Group Member, any Limited Partner or any Assignee (each as defined in the Partnership Agreement), (ii) it may make such decision in its sole discretion (regardless of whether there is a reference to “sole discretion” or “discretion”) unless another express standard is provided for, or (iii) in “good faith” or under another express standard, the General Partner or such affiliate will act under such express standard and will not be subject to any other or different standards imposed by the Partnership Agreement, the Operating Partnership Agreement (as defined in the Partnership Agreement), the limited liability company agreement or partnership agreement of any Group Member (as defined in the Partnership Agreement) any other agreement contemplated by the Partnership Agreement or under the Delaware Revised Uniform Limited Partnership Act or any other law, rule or regulation.

Pursuant to Section 7.9(a) of the Partnership Agreement, any conflict of interest and any resolution of such conflict of interest will be conclusively deemed fair and reasonable to the Partnership if such conflict of interest or resolution is (i) approved by Special Approval, (ii) on terms no less favorable to the Partnership than those generally being provided to or available from unrelated third parties or (iii) fair to the Partnership, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership). The General Partner (including the Conflicts Committee in connection with Special Approval) will be authorized in connection with its determination of what is “fair and reasonable” to the Partnership and in connection with its resolution of any conflict of interest to consider (A) the relative interests of any party to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interest; (B) any customary or accepted industry practices and any customary or historical dealings with a particular person; (C) any applicable generally accepted accounting practices or principles; and (D) such additional factors as the General Partner (including the Conflicts Committee) determines in its sole discretion to be relevant, reasonable or appropriate under the circumstances. In any proceeding brought by any Unitholder by or on behalf of such Unitholder or any other Unitholders or the Partnership alleging that such a resolution by the General Partner (and not by the Conflicts Committee, whose resolution will be conclusive as provided above) is not fair to the Partnership, such Unitholder will have the burden of proof of overcoming such conclusion. Nothing contained in the Partnership Agreement, however, is intended to nor will it be construed to require the General Partner (including the Conflicts Committee) to consider the interests of any person other than the Partnership. In the absence of bad faith by the General Partner, the resolution, action or terms so made, taken or provided by the General Partner with respect to such matter will not constitute a breach of the Partnership Agreement or any other agreement contemplated by the Partnership Agreement or a breach of any standard of care or duty imposed by the Partnership Agreement or any other agreement contemplated by the Partnership Agreement, or, to the extent permitted by law, under the Delaware Revised Uniform Limited Partnership Act or any other law, rule or regulation.

Under Section 7.10(b) of the Partnership Agreement, the General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the opinion of such persons as to matters that the General Partner reasonably believes to be within such person’s professional or expert competence will be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion.

Section 7.10(d) of the Partnership Agreement provides that any standard of care and duty imposed by the Partnership Agreement or under the Delaware Revised Uniform Limited Partnership Act or any applicable law,

 

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rule or regulation will be modified, waived or limited, to the extent permitted by law, as required to permit the General Partner to act under the Partnership Agreement or any other agreement contemplated by the Partnership Agreement and to make any decision pursuant to the authority prescribed in the Partnership Agreement, so long as such action is reasonably believed by the General Partner to be in, or not inconsistent with, the best interests of the Partnership.

Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal

The Conflicts Committee

The Conflicts Committee consists of three independent directors that satisfy the requirements for membership on the Conflicts Committee that are set forth in the Partnership Agreement and the Conflicts Committee Charter: Byron R. Kelley (Chairman of the Conflicts Committee), James M. Collingsworth and C. Scott Massey. The Partnership Agreement requires that members of the Conflicts Committee not be (a) security holders, officers or employees of the General Partner; (b) directors, officers or employees of any affiliate of the General Partner or (c) holders of any ownership interest in the Partnership, Martin Operating Partnership, L.P., or any subsidiary of any such entity other than the Common Units and who also meet the independence standards established by the Nasdaq to serve on an audit committee of a board of directors.

In connection with the Merger, on January 23, 2024, the GP Board delegated to the Conflicts Committee the power and authority, among other things, (i) to make such investigation of the Proposed Transaction and the alternative of maintaining the status quo, as the Conflicts Committee deemed necessary or appropriate, (ii) to review, evaluate and negotiate (or to supervise and direct the negotiations on behalf of the Partnership with respect to) the terms and conditions, and determine the advisability, of the Proposed Transaction and related agreements and arrangements, (iii) to determine whether the Proposed Transaction is fair and reasonable to, and in the best interest of, the Partnership and the holders of the Common Units (other than the General Partner, Parent and their respective affiliates (other than the Partnership and its subsidiaries), including any officer, director, equityholder or member thereof), (iv) to determine whether to approve the Proposed Transaction (with such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including, but not limited to, Section 7.9(a) thereof), and to make a recommendation to the GP Board whether to approve the Potential Transaction and, if appropriate, to recommend that the Unitholders approve the Proposed Transaction (it being understood that (A) any Proposed Transaction was subject to receipt by the Partnership, the GP Board or the Conflicts Committee, in the first instance, of an offer or proposal by Parent or its affiliates in respect of the Proposed Transaction, and (B) the Proposed Transaction was subject to the approval of the GP Board), and (v) to make any other recommendations to the GP Board and/or the Unitholders regarding the Proposed Transaction as the Conflicts Committee shall determine to be appropriate.

The Conflicts Committee conducted an extensive review and evaluation of the Proposed Transaction and negotiated with Parent and its representatives with respect to the Merger and the Merger Agreement. The Conflicts Committee retained Houlihan Lokey as its financial advisor and Potter Anderson and Munsch Hardt as its legal counsel. In the course of reaching its decision to approve the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, the Conflicts Committee considered a number of factors affecting the Partnership Unaffiliated Unitholders in its deliberations, which are described in detail below.

On October 3, 2024, the Conflicts Committee unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved, such recommendation and approval constituting “Special Approval” for all purposes under the Partnership Agreement, including Section 7.9(a) thereof) the Merger Agreement, the Support Agreements and the transactions

 

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contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) recommended that the GP Board approve the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iv) recommended that the GP Board submit the Merger Agreement and the Merger to a vote of the Unitholders and (v) recommended, and recommended that the GP Board resolve to recommend, approval of the Merger Agreement and the Merger by the Unitholders.

Reasons for the Conflicts Committee’s Recommendation

The Conflicts Committee consulted with its financial and legal advisors and considered many factors in making its determination and approvals, and the related recommendation to the GP Board and the Partnership Unaffiliated Unitholders. The Conflicts Committee considered the following factors (the order of which does not necessarily reflect their relative significance) to be generally positive or favorable in making its determination and approvals, and the related recommendation to the GP Board and the Partnership Unaffiliated Unitholders:

 

•

The Merger Consideration is an all-cash amount, and will provide the Partnership Unaffiliated Unitholders with a measure of immediate liquidity and certainty of value.

 

•

The execution risks for the business in the future.

 

•

Following the consummation of the Merger, the Partnership Unaffiliated Unitholders will not have any equity participation in the Partnership, and accordingly will not have continued exposure, with respect to their Common Units, to negative market conditions or to risk associated with the Partnership’s ongoing operations.

 

•

The financial analysis reviewed by Houlihan Lokey with the Conflicts Committee as well as the oral opinion of Houlihan Lokey, which analyses and opinion the Conflicts Committee adopted as its own, rendered to the Conflicts Committee on October 3, 2024 (which was subsequently confirmed in writing by delivery of Houlihan Lokey’s written opinion addressed to the Conflicts Committee dated October 3, 2024), as to the fairness, from a financial point of view, to the Partnership Unaffiliated Unitholders, of the Merger Consideration to be received by the Partnership Unaffiliated Unitholders pursuant to the Merger Agreement.

 

•

The Conflicts Committee believes that the Merger Consideration is likely the highest price that Parent would be willing to pay.

 

•

The Conflicts Committee believes that the Merger presents the best available opportunity to maximize value for the Partnership Unaffiliated Unitholders, which belief is based on consideration of the alternative of maintaining the status quo and the Conflicts Committee’s belief that there are no viable alternative transactions for the Partnership in lieu of a transaction with Parent in light of (i) the controlling position of Parent through its indirect ownership of the Partnership and approximately 15.7% of the Common Units, (ii) Parent’s stated position when it delivered its initial proposal to acquire all of the Public Common Units (and throughout its negotiations with the Conflicts Committee) that it was interested only in acquiring the Public Common Units and was not interested in selling its General Partner Interest in the Partnership or any of the Common Units owned by it or its subsidiaries or pursuing other strategic opportunities involving the Partnership, (iii) the Partnership’s material contracts being significantly concentrated with Parent and entail potentially significant costs to terminate, (iv) the Conflicts Committee’s recognition of overall risks and uncertainties relevant corporate and asset transactions and (v) the change of control provisions of the Partnership’s existing debt that might otherwise be triggered with a party other than Parent.

 

•

The Merger Consideration of $4.02 per Common Unit represents (x) a 34% premium to the closing price of the Common Units on May 23, 2024, and (y) a 41% premium to the 30-day volume-weighted average price of common units as of May 23, 2024.

 

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•

The Partnership’s current access to capital is limited and expensive, and it faces potential future refinancing risks.

 

•

The Partnership is currently limited in its ability to pay distributions and the timing and ability to increase distributions in the future is uncertain.

 

•

The Conflicts Committee believes that investor sentiment increasingly disfavors MLP structures as compared to alternative structures and, as a result, the state of the MLP debt and equity capital markets will continue to present challenges for the Partnership to fund acquisitions and growth capital expenditures, particularly given the Partnership’s size and scale.

 

•

Future drop-downs with respect to the Partnership are not expected for the foreseeable future through at least 2028.

 

•

Parent’s and its affiliates’ historical status as an important customer and supplier of the Partnership, the dependence of the Partnership’s revenue growth on Parent’s growth, and the contractual interdependence of the Partnership and Parent.

 

•

There have been many procedural safeguards involved in the negotiation of the Merger Agreement, including:

 

•

The Conflicts Committee consisted solely of directors who are not officers, employees or controlling unitholders of the Partnership or its affiliates and who satisfied the requirements under the Partnership Agreement and the Charter of the Conflicts Committee for service on the Conflicts Committee.

 

•

The resolutions of the GP Board charging the Conflicts Committee granted authority to the Conflicts Committee, including the authority to determine whether or not to proceed with the Merger and to review, evaluate and negotiate the terms and conditions of the Merger on behalf of the Partnership, and the members of the Conflicts Committee were aware that they were under no obligation to approve, and could reject, the Merger. The GP Board resolved not to approve the proposed Merger without a prior favorable recommendation of the Merger by the Conflicts Committee.

 

•

The members of the Conflicts Committee are members of the GP Board and are familiar with, and understand, the businesses, assets, liabilities, results of operations, financial condition and competitive positions and prospects of the Partnership.

 

•

The members of the Conflicts Committee will not personally benefit from completion of the Merger in a manner different from the Partnership Unaffiliated Unitholders.

 

•

The members of the Conflicts Committee were appropriately compensated for their services, which compensation was set by the Partnership with guidance from certain advisors and consistent with market standards. In addition, the compensation for the members of the Conflicts Committee is in no way contingent on their approving the Merger Agreement or the Merger.

 

•

The terms and conditions of the Merger Agreement and the Merger were determined through arm’s-length negotiations, which included multiple proposals and counterproposals, between the Conflicts Committee and Parent and their respective representatives and advisors.

 

•

Through negotiation, the Conflicts Committee was able to significantly improve the Merger Consideration from Parent’s initial proposal on May 24, 2024 of $3.05 in cash for each Common Unit, or a 1.7% premium to the closing price of Common Units on May 23, 2024 and a 7.2% premium to the 30-day volume-weighted average price as of May 23, 2024.

 

•

The Conflicts Committee retained and was advised by independent, experienced and qualified advisors, consisting of Munsch Hardt and Potter Anderson as legal counsel and Houlihan Lokey as financial advisor.

 

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•

In addition to the active participation of the Conflicts Committee in the negotiations of the Merger Agreement, the Conflicts Committee’s legal and financial advisors were involved throughout the deliberation and negotiation process, and such advisors provided regular updates to the Conflicts Committee, which provided the Conflicts Committee with additional perspectives on the negotiations.

 

•

No member of the Conflicts Committee was requested to serve on the Parent Board following the merger.

 

•

Certain terms of the Merger Agreement, including:

•

Partnership Unaffiliated Unitholders will receive $4.02 in cash per outstanding Common Unit.

 

•

The consummation of the Merger is not contingent on financing.

 

•

The Merger Agreement contains representations and warranties by Parent relating to the availability of funds sufficient to consummate the Merger and pay all amounts required to be paid in connection with the transactions contemplated by the Merger Agreement.

 

•

Parent’s obligation to pay a termination fee of $6.0 million to the Partnership in connection with the termination of the Merger Agreement as a result of, among other things, a failure to effect the Merger resulting from a failed financing.

 

•

Parent’s obligation to reimburse the Partnership’s expenses, in an amount up to $5.0 million, in certain circumstances.

 

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The fact that the Merger is subject to approval by the Unitholders, including a significant portion of the Partnership Unaffiliated Unitholders.

 

•

The requirement that Parent and certain affiliates and subsidiaries would enter into Support Agreements, which ensures that such entities and individuals will vote all of their respective Common Units in favor of the Merger. The Support Agreements also prohibit Parent and certain affiliates and subsidiaries from transferring any interests in the Partnership owned by such persons until the Effective Time or the earlier termination of the Merger Agreement or mutual agreement of the parties to the Support Agreements, subject to certain limited exceptions.

 

•

As of October 3, 2024, Parent beneficially owned approximately 15.7% of the Common Units and thus does not control the outcome of the Partnership vote.

 

•

The limited nature of the operational representations and warranties and covenants given by the Partnership and its subsidiaries.

 

•

Provisions requiring the Partnership to pay regular quarterly cash distributions on the Common Units consistent with past practice, subject to certain specified criteria, and requiring the General Partner to (and Parent to cause its representatives and the GP Board to) designate the record date for the quarterly cash distribution related to the quarter immediately prior to the quarter in which the closing occurs so that such record date precedes the Effective Time so as to permit the payment of such quarterly distribution to the holders of the Common Units.

•

The provisions allowing the Conflicts Committee to change its recommendation of the Merger Agreement in the event of a Superior Proposal from a third party or in connection with an Intervening Event, if the Conflicts Committee makes a good faith determination (after consultation with outside legal counsel) that the failure to change its recommendation would be inconsistent with its duties under applicable law, as modified by the Partnership Agreement, and complies with the terms of the Merger Agreement.

 

•

The Merger Agreement contains only limited conditions and exceptions to the closing conditions.

 

•

Under the terms of the Merger Agreement, prior to the effective time of the Merger, Parent is prohibited from eliminating the Conflicts Committee, revoking or diminishing the authority of the

 

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Conflicts Committee, or from removing any member of the Conflicts Committee (or causing any of its subsidiaries to do the same) without the consent of the Conflicts Committee.

 

•

The Merger Agreement requires Conflicts Committee approval with respect to the mutual agreement by Parent and the Partnership to terminate the Merger Agreement, and any amendment to, waiver of, or consent under the Merger Agreement by the Partnership requires the Conflicts Committee’s approval.

The Conflicts Committee considered the following factors (the order of which does not necessarily reflect their relative significance) to be generally negative or unfavorable in making its determination and approvals, and the related recommendation to the GP Board and the Partnership Unaffiliated Unitholders:

 

•

Regulatory approval under antitrust laws will be required in connection with the Merger.

 

•

Some Unitholders may have a portion of their proceeds treated as ordinary income as a result of the Merger.

 

•

There is a risk associated with the financing required to fund the full amount of the Merger Consideration, and which may be subject to certain covenants at closing.

 

•

There is a risk that the potential benefits to be realized in the Merger might not be fully realized, or might not be realized within the expected time period.

 

•

Litigation may occur in connection with the Merger and any such litigation may result in significant costs and diversion of management focus.

 

•

The fact that the Partnership Unaffiliated Unitholders are not entitled to appraisal rights under the Merger Agreement, the Partnership Agreement, or Delaware law.

 

•

The Conflicts Committee was not authorized to and did not conduct an auction process or other solicitation of interest from third parties for the acquisition of the Partnership. Because Parent indirectly controls the Partnership through its indirect ownership of the General Partner and Parent indicated that it desired to retain its controlling interest in the General Partner, the Conflicts Committee believed that it was unrealistic to expect a third-party acquisition proposal to acquire assets or control of the Partnership without the support of Parent, and it was unlikely that the Conflicts Committee could conduct a meaningful process to solicit interest in the acquisition of assets or control of the Partnership from third parties.

 

•

Certain executive officers and directors of Parent and the Partnership have interests in the Merger that are different from, or in addition to, the interests of the Partnership Unaffiliated Unitholders;

 

•

Although the Merger is subject to approval by holders of a majority of the outstanding Common Units, the vote includes Common Units owned by Parent and its affiliates and subsidiaries, which are entering into Support Agreements obligating such individuals and entities to vote their respective Common Units in favor of the Merger Agreement and the transactions contemplated thereby, including the Merger, and the Merger is not subject to a Majority of the Minority Provision.

 

•

Certain terms of the Merger Agreement, including:

 

•

The provisions limiting the ability of the Conflicts Committee to solicit, negotiate, or to consider unsolicited, offers from third parties for the Partnership or to provide information to such third parties.

 

•

The operating covenants to which the Partnership is subject in the Merger Agreement restrict the Partnership from taking certain actions prior to the closing of the Merger that could be beneficial to the Partnership and the Partnership Unaffiliated Unitholders.

 

•

The Partnership’s obligation to pay a termination fee of $2.5 million to Parent in connection with the termination of the Merger Agreement under certain circumstances.

 

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•

The provisions obligating the Partnership to hold a special meeting of the Unitholders to vote on the Merger even if the Conflicts Committee or the GP Board (upon the recommendation of the Conflicts Committee) changes its recommendation to the Unitholders, unless the Merger Agreement has been validly terminated by Parent.

 

•

The Partnership’s obligation to reimburse Parent’s expenses, in an amount up to $5.0 million, in certain circumstances.

 

•

There are potential negative impacts or consequences of the Merger, including:

 

•

Partnership Unaffiliated Unitholders will not have any equity participation in the Partnership following the Merger, and the Partnership Unaffiliated Unitholders will accordingly cease to participate in the Partnership’s future earnings or growth, if any, or benefit from any increases in the value of the Common Units.

 

•

The Partnership has incurred and will continue to incur significant transaction costs and expenses in connection with the proposed Merger, whether or not the Merger is completed.

 

•

There is risk that the Merger might not be completed in a timely manner, or that the Merger might not be consummated at all, which could negatively affect the trading price of the Common Units or could result in significant costs and disruption to the Partnership’s normal business.

The Conflicts Committee did not retain an unaffiliated representative to act solely on behalf of the Partnership Unaffiliated Unitholders for purposes of negotiating the terms of the Merger Agreement. The Conflicts Committee was charged with representing the interests of the Partnership Unaffiliated Unitholders, it consisted solely of directors who are not officers or controlling equityholders of the Partnership or the Buyer Filing Parties, it engaged independent financial and legal advisors to act on its behalf and it was actively involved in deliberations and negotiations regarding the Merger on behalf of the Partnership Unaffiliated Unitholders.

The Merger is not subject to a Majority of the Minority Provision requiring the approval of the holders of at least a majority of the Common Units who are unaffiliated with Parent.

In the course of reaching its decision to recommend to the GP Board that it approve the Merger Agreement and the Merger, the Conflicts Committee did not consider the liquidation value of the Partnership’s assets. Furthermore, the Conflicts Committee did not consider net book value, which is an accounting concept. In addition, the Conflicts Committee considered historical and current trading prices of the Common Units and the premium that the Merger Consideration represented.

Other than as discussed in “—Background of the Merger” (including the Proposed Transaction and the proposals received from Nut Tree and Caspian), the Conflicts Committee is not aware of any firm offers made by any other person in the past two years to acquire the Partnership, the General Partner Interest in the Partnership or all or substantially all of the assets of the Partnership. As discussed further in “—Background of the Merger,” in making its determination and approvals, and the related recommendation to the GP Board and the Partnership Unaffiliated Unitholders, the Conflicts Committee considered in the process of negotiations with Parent and in determining the final Merger Consideration the values set forth by Nut Tree and Caspian in their proposals, as well as the information relating to such values as referenced in the proposals.

The foregoing discussion of the information and factors considered by the Conflicts Committee is not intended to be exhaustive, but includes material factors the committee considered. In view of the variety of factors considered in connection with its evaluation of the Merger and the complexity of these matters, the Conflicts Committee did not find it useful and did not attempt to quantify or assign any relative or specific weights to the various factors considered in making its determination and recommendation. In addition, each of the members of the Conflicts Committee may have given differing weights to different factors. It should be noted that certain statements and other information presented in this section are forward- looking in nature and, therefore, should be read in light of the factors discussed under the heading “Cautionary Statement Regarding Forward-Looking Statements.”

 

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The Conflicts Committee recommends that the Partnership Unaffiliated Unitholders vote “FOR” the Merger Proposal.

The GP Board

The GP Board consists of five directors, three of whom constitute the Conflicts Committee. As such, some of the directors on the GP Board may have different interests in the Merger than the Partnership Unaffiliated Unitholders. For a discussion of these and other interests of the members of the GP Board in the Merger, see “Special Factors—Interests of the Directors and Executive Officers of the General Partner in the Merger.”

Because of such possible and actual conflicts of interests, in resolutions approved by the GP Board on January 23, 2024, the GP Board delegated to the Conflicts Committee the power and authority, among other things, (i) to make such investigation of the Proposed Transaction and the alternative of maintaining the status quo, as the Conflicts Committee deemed necessary or appropriate, (ii) to review, evaluate and negotiate (or to supervise and direct the negotiations on behalf of the Partnership with respect to) the terms and conditions, and determine the advisability, of the Proposed Transaction and related agreements and arrangements, (iii) to determine whether the Proposed Transaction is fair and reasonable to, and in the best interest of, the Partnership and the holders of the Common Units (other than the General Partner, Parent and their respective affiliates (other than the Partnership and its subsidiaries), including any officer, director, equityholder or member thereof), (iv) to determine whether to approve the Proposed Transaction (with such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including, but not limited to, Section 7.9(a) thereof), and to make a recommendation to the GP Board whether to approve the Potential Transaction and, if appropriate, to recommend that the Unitholders approve the Proposed Transaction (it being understood that (A) any Proposed Transaction was subject to receipt by the Partnership, the GP Board or the Conflicts Committee, in the first instance, of an offer or proposal by Parent or its affiliates in respect of the Proposed Transaction, and (B) the Proposed Transaction was subject to the approval of the GP Board), and (v) to make any other recommendations to the GP Board and/or the Unitholders regarding the Proposed Transaction as the Conflicts Committee shall determine to be appropriate.

On October 3, 2024, the Conflicts Committee unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved (such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including Section 7.9(a) thereof) the Merger Agreement, the Support Agreements, and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) recommended that the GP Board approve the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iv) recommended that the GP Board submit the Merger Agreement and the Merger to a vote of the Unitholders and (v) recommended, and recommended that the GP Board resolve to recommend, approval of the Merger Agreement and the Merger by the Unitholders.

Following the receipt of the recommendation of the Conflicts Committee and after considering the factors discussed below, on October 3, 2024, the GP Board unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) authorized and directed that approval of the Merger Agreement and the Merger be submitted to a vote of the Unitholders and (iv) recommended approval of the Merger Agreement and the Merger by the Unitholders.

 

55

In the course of reaching its decision to approve the Merger Agreement and the Merger, the GP Board considered a number of factors, including, with respect to the Partnership Unaffiliated Unitholders, the recommendation of the Conflicts Committee, in its deliberations. For a more complete discussion of these factors, see “Special Factors—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal—Reasons for the GP Board’s Recommendation.”

The GP Board, on behalf of the General Partner and the Partnership, believes that the Merger (which is a Rule 13e-3 transaction for which a Schedule 13E-3 Transaction Statement was filed with the SEC) is fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders. The GP Board, on behalf of the General Partner and the Partnership, has made the preceding statement for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act.

The GP Board recommends that Unitholders vote “FOR” the Merger Proposal and “FOR” the Adjournment Proposal, if necessary, to solicit additional proxies if there are not sufficient votes to approve the Merger Agreement and the Merger at the time of the Special Meeting.

Reasons for the GP Board’s Recommendation

In determining that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, and recommending that unitholders vote in favor of the Merger Proposal, the GP Board considered a number of factors, including the following material factors (the order of which does not necessarily reflect their relative significance):

 

•

The Merger Consideration is an all-cash amount, which the GP Board believes provides greater value to the Partnership Unaffiliated Unitholders than the long-term value of the Partnership as a publicly traded partnership, after taking into account the risks and challenges facing the Partnership’s current business and financial prospects.

 

•

The receipt of cash consideration eliminates downside risk associated with the continued ownership of the Common Units, including any possible decrease in the future revenues and free cash flow, growth or value of the Partnership following the Merger.

 

•

The Merger Consideration with respect to the Common Units constitutes a 34.00% premium to the market closing price prior to Parent’s initial offer made on May 24, 2024 and an 11.33% premium to the trailing 30-trading day volume-weighted average price on October 3, 2024, the date of the Merger Agreement.

 

•

The GP Board believes that investor sentiment now disfavors MLP structures as compared to alternative structures and, as a result, the state of the MLP debt and equity capital markets will continue to present challenges for the Partnership to fund acquisitions and growth capital expenditures.

 

•

The Partnership is a micro-cap MLP and the Common Units are thinly-traded, resulting in a lack of liquidity for Unitholders with significant holdings, without a negative impact on the price of the Common Units.

 

•

The Merger Consideration provides liquidity to the Partnership Unaffiliated Unitholders.

 

•

The Merger is subject to receipt of Unitholder Approval; recognizing that the Support Parties have agreed to vote or cause the 10,149,785 Common Units they collectively owned as of October 3, 2024, or approximately 26% of the outstanding Common Units as of such date, to be voted in favor of the Merger pursuant to the Parent Group Support Agreement.

 

•

Certain terms of the Merger Agreement, principally:

 

•

provisions requiring the General Partner to declare and cause the Partnership to pay regular quarterly cash distributions on the Common Units consistent with past practice, subject to certain specified criteria;

 

56

•

provisions permitting the GP Board to change its recommendation to the Unitholders if it determines in good faith (after consultation with its financial advisor and outside legal counsel) in response to an intervening event or an unsolicited acquisition proposal that constitutes a Superior Proposal and a failure to make a recommendation change would be inconsistent with its duties under applicable law as modified by the Partnership Agreement; and

 

•

provisions requiring Parent, in certain circumstances, to pay the Parent Termination Fee of $6.0 million (an amount in excess of two times the amount of the Partnership Termination Fee of $2.5 million), including if Parent fails to consummate the Merger within five business days after receiving a closing notice from the Partnership or the Conflicts Committee as contemplated by Merger Agreement, and the Partnership or the Conflicts Committee terminates the Merger Agreement.

The GP Board considered the following factors (the order of which does not necessarily reflect their relative significance) to be generally negative or unfavorable in making its determination and approvals, and the related recommendation to the Unitholders:

 

•

The Conflicts Committee was not authorized to and did not conduct an auction process or other solicitation of interest from third parties for the acquisition of the Partnership. Since Parent indirectly controls the Partnership, it was unrealistic to expect an unsolicited third-party acquisition proposal to acquire assets or control of the Partnership that would be acceptable to Parent, and it was unlikely that the Conflicts Committee could conduct a meaningful process to solicit interest in the acquisition of assets or control of the Partnership that would be acceptable to Parent. Parent stated in the initial written proposal with respect to the Proposed Transaction, and later reiterated its position in response to the Nut Tree Caspian Proposal, that it had no interest in selling any of its or its subsidiaries’ interests in the Partnership or the General Partner or pursuing other strategic alternatives involving the Partnership or the General Partner.

 

•

The Merger is expected to be a taxable transaction for the Partnership Unaffiliated Unitholders.

 

•

The Partnership Unaffiliated Unitholders will not have any equity participation in the Partnership following the Merger, and accordingly, such unitholders will cease to participate in the Partnership’s future earnings or growth, if any, or benefit from any increases, if any, in the value of the Common Units.

 

•

The Unitholders are not entitled to dissenters’ or appraisal rights under the Merger Agreement, the Partnership Agreement or Delaware law.

 

•

Certain terms of the Merger Agreement, principally:

 

•

provisions requiring the Partnership pay a termination fee of $2.5 million or to reimburse Parent for out-of-pocket expenses up to $5.0 million in the event the Merger Agreement is terminated under certain circumstances.

 

•

provisions requiring the Partnership to submit the Merger Agreement to a vote of the limited partners (even if the GP Board has made a recommendation change), unless the Merger Agreement has been validly terminated.

 

•

the Partnership has incurred and will continue to incur transaction costs and expenses in connection with the Merger, whether or not the Merger is completed.

 

•

Parent and some of the executive officers and directors of the General Partner have interests in the Merger that are different from, or in addition to, the interests of the Partnership Unaffiliated Unitholders, generally.

In making its determination, the GP Board also considered:

 

•

the Conflicts Committee’s unanimous approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, such approval constituting “Special Approval” for all

 

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purposes of the Partnership Agreement, and the related recommendations of the Conflicts Committee to the GP Board;

 

•

the GP Board’s understanding of the process and procedures undertaken by the Conflicts Committee in reaching its determination and approval and making related recommendations to the GP Board, which included:

 

•

the GP Board’s determination that the members of the Conflicts Committee met the independence and other requirements for service on the Conflicts Committee that are set forth in the Partnership Agreement and the Conflicts Committee Charter;

 

•

the Conflicts Committee’s engagement of independent financial and legal advisors with positive reputations, knowledge and experience with respect to public merger and acquisition transactions, MLPs, and midstream, downstream and oil and gas companies, as well as substantial experience advising MLPs and other companies with respect to transactions similar to the Proposed Transaction and familiarity with the Partnership and its business;

 

•

the terms of the Merger Agreement, including the Merger Consideration, were determined as a result of arms’ length negotiations between Parent and the Conflicts Committee and their respective representatives that included multiple proposals and counterproposals;

 

•

the Conflict Committee’s receipt of the opinion of Houlihan Lokey to the effect that, as of October 3, 2024 and based upon and subject to the factors, assumptions made, procedures followed, matters considered, qualifications and limitations on the scope of review undertaken by Houlihan Lokey in connection with the preparation of its opinion as set forth therein, the Merger Consideration was fair, from a financial point of view, to the Partnership Unaffiliated Unitholders; and

 

•

the factors considered by the Conflicts Committee, including the material factors considered by the Conflicts Committee described under “—The Conflicts Committee” above.

In addition, under the SEC rules governing “Rule 13e-3 transactions,” the Partnership and the General Partner are engaged in such a transaction and, therefore, are required to express their position as to the fairness of the proposed Merger to the Partnership’s “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act. The GP Board, on behalf of the General Partner and the Partnership, is making the following statements for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The GP Board, on behalf of the General Partner and the Partnership, on the basis of the factors described above, believes that the Merger (which is the Rule 13e-3 transaction for which the Schedule 13E-3 was filed with the SEC) is fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders.

The GP Board did not retain an unaffiliated representative to act solely on behalf of the Partnership Unaffiliated Unitholders for purposes of negotiating the terms of the Merger Agreement. The GP Board believes that it was not necessary to retain an unaffiliated representative to act solely on behalf of the Partnership Unaffiliated Unitholders for purposes of negotiating the terms of the Merger Agreement because the Conflicts Committee was charged with representing the interests of the Partnership Unaffiliated Unitholders, it consisted solely of directors who are not officers or controlling equityholders of the Partnership or the Buyer Filing Parties, it engaged independent financial and legal advisors to act on its behalf and it was actively involved in deliberations and negotiations regarding the Merger on behalf of the Partnership Unaffiliated Unitholders.

The GP Board did not consider the liquidation value of the Partnership’s assets. Furthermore, the GP Board did not consider net book value, which is an accounting concept, as a factor because it believed that net book value is not a material indicator of the value of the Partnership as a going concern but rather is indicative of historical costs. In addition, the GP Board considered historical and current trading prices of the Common Units and the premium that the Merger Consideration represented.

 

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Other than as discussed in “—Background of the Merger” (including the Proposed Transaction and the proposals received from Nut Tree and Caspian), the GP Board is not aware of any firm offers made by any other person in the past two years to acquire the Partnership, the General Partner Interest in the Partnership or all or substantially all of the assets of the Partnership. However, the GP Board, in making its determination and approvals, considered that the Conflicts Committee, in making its determination and approvals, considered, as discussed further in “—Background of the Merger,” in the process of negotiations with Parent and in determining the final Merger Consideration the values set forth by Nut Tree and Caspian in their proposals, as well as the information relating to such values as referenced in the proposals.

The foregoing discussion of the information and factors considered by the GP Board is not intended to be exhaustive, but includes material factors the GP Board considered. In view of the variety of factors considered in connection with its evaluation of the Merger and the complexity of these matters, the GP Board did not find it useful and did not attempt to quantify or assign any relative or specific weights to the various factors considered in making its determination and recommendation. In addition, each of the members of the GP Board may have given differing weights to different factors. Overall, the GP Board believed that the positive factors supporting the Merger outweighed the negative factors it considered. It should be noted that certain statements and other information presented in this section are forward-looking in nature and, therefore, should be read in light of the factors discussed under the heading “Cautionary Statement Regarding Forward-Looking Statements.”

The GP Board recommends that Unitholders vote “FOR” the Merger Proposal and “FOR” the Adjournment Proposal, if necessary, to solicit additional proxies if there are not sufficient votes to approve the Merger Proposal at the time of the Special Meeting.

Unaudited Financial Projections of the Partnership

The Partnership does not, as a matter of course, publicly disclose long-term financial projections because of, among other reasons, the uncertainty and subjectivity of the underlying assumptions and estimates and the unpredictability of its business and competitive markets in which it operates. While the Partnership prepares forecasts annually for internal budgeting and business planning purposes, such forecasts generally focus on the current fiscal year and the immediately following three fiscal years.

The financial projections included in this proxy statement should not be regarded as predictive of actual future results nor should they be construed as financial guidance. The financial projections are not intended to influence or induce any Unitholder to vote in favor of the Merger Proposal but have been included solely because these financial projections were prepared by management of the General Partner on behalf of the Partnership, made available to the Conflicts Committee and used by Houlihan Lokey in connection with the rendering of its opinion to the Conflicts Committee and performing its related financial analyses, as described in the section entitled “Special Factors—Houlihan Lokey Opinion to the Conflicts Committee.” The financial projections were also made available to the Parent Board in connection with its evaluation of the transaction and used by Wells Fargo at the direction of the Parent Board in connection with the rendering of its opinion to the Parent Board and performing its related financial analyses, as described in the section entitled “Special Factors—Wells Fargo Opinion to Parent.”

As further described in “Special Factors—Background of the Merger,” the financial projections included in this proxy statement are the final projections relied on by Houlihan Lokey and Wells Fargo in preparing their respective opinions, but are not the only series of projections that were prepared in connection with the Merger, given the extended negotiation period. At the beginning of the negotiation process, the Conflicts Committee and Houlihan Lokey and the Parent Board and Wells Fargo each received an initial series of financial projections. The Partnership continued to update these financial projections over the course of negotiations prior to execution of the Merger Agreement as new business facts evolved. As these new business facts evolved, the Partnership informed the Conflicts Committee of such facts and Houlihan Lokey updated its financial analyses accordingly throughout the negotiation period.

 

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The Partnership’s financial projections are subjective in many respects. Although presented with numerical specificity, the financial projections reflect and are based on numerous varying assumptions and estimates, all of which are difficult to predict and beyond the Partnership’s control. The financial projections are forward-looking statements that should be read with caution, and there can be no assurance that these financial projections will be realized or that actual results will not be significantly higher or lower than forecasted. In addition, the financial projections were not prepared with a view toward public disclosure or toward complying with generally accepted accounting principles in the United States (“GAAP”), the published guidelines of the SEC regarding projections or the use of non-GAAP financial measures or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. The prospective financial information included in this proxy statement has been prepared by, and is the responsibility of, Partnership’s management. KPMG LLP has neither audited, reviewed, examined, compiled nor applied agreed-upon procedures with respect to the accompanying prospective financial information and, accordingly, KPMG LLP does not express an opinion or any other form of assurance with respect thereto. The KPMG LLP report incorporated by reference in this proxy statement relates to the Partnership’s historical financial information. It does not extend to the prospective financial information and should not be read to do so. The financial projections should be evaluated, if at all, in conjunction with the historical financial statements and other information regarding the Partnership contained in the Partnership’s public filings with the SEC.

Certain financial measures included in the financial projections are not calculated in accordance with GAAP. These non-GAAP financial measures should not be viewed as a substitute for GAAP financial measures and may be different from similarly titled non-GAAP financial measures used by other companies. Furthermore, there are limitations inherent in non-GAAP financial measures because they adjust for charges and credits that are required to be included in a GAAP presentation. Accordingly, these non-GAAP financial measures should be considered together with, and not as an alternative to, financial measures prepared in accordance with GAAP. Financial measures included in the financial projections provided to the Conflicts Committee and used by Houlihan Lokey with the authorization of the Conflicts Committee and provided to the Parent Board and used by Wells Fargo with authorization from the Parent Board are excluded from the definition of “non-GAAP financial measures” under applicable SEC rules and regulations. As a result, the financial measures are not subject to SEC rules regarding disclosures of non-GAAP financial measures, which would otherwise require a reconciliation of a non-GAAP financial measure to a GAAP financial measure. Reconciliations of non-GAAP financial measures were not provided to or relied upon by the Conflicts Committee or the Parent Board or used by Houlihan Lokey or Wells Fargo. Accordingly, no reconciliation of the financial measures included in the financial projections is provided in this proxy statement.

In developing the financial projections for the years 2024 through 2028, the Partnership made numerous material assumptions with respect to its business for the periods covered by the projections.

These assumptions included, but were not limited to, the following:

Revenue for each of the following business lines of the Partnership:

 

•

Terminalling and Storage

 

•

Terminals revenue assumes a flat volume throughput (consistent with historical figures) and assumes storage rates increase at an annual rate of 3.0%

 

•

Tolling revenue assumes a flat daily volume throughput (consistent with historical figures) and assumes reservation fees increase at an annual rate of 3.0%

 

•

Underground storage revenue is consistent with historical figures and assumes an annual rate of 2.0%

 

•

Specialty Products

 

•

Specialty products revenue assumes beginning volumes that are consistent with historical volumes and assumes a volume growth rate of 1.0% to 2.5%

 

60

•

Seasonal spreads reflect forward commodity pricing

 

•

Realized margins consistent with historical figures

 

•

Transportation Services

 

•

Utilization based on historical figures and held flat throughout the forecast

 

•

Rates based on historical figures and assume an annual growth rate of 3.0% and 1.5% for marine and land services, respectively

 

•

Sulfur Services

 

•

Revenue based on historical figures and assumes an annual volume growth rate of 1.0% to 2.0%

 

•

ELSA Project reflects contracted volumes and rates

 

•

Expenses: Operating expenses and allocated selling, general and administrative expenses (“SG&A”) based on historical figures and assume an annual growth rate of 3.0%

 

•

Unallocated SG&A Expenses: Based on historical figures and assumes an annual growth rate of 1.0%

 

•

Maintenance Capital Expenditures: Maintenance capital expenditures of $25.0 million to $30.0 million per year (approximately 25% of the Partnership’s net income before interest expense, income tax expense, and depreciation and amortization (“EBITDA”) and in line with historical averages)

 

•

Growth Capital Expenditures: Growth capital expenditures of $5.0 million to $15.0 million per year and based on management identified opportunities

Important factors that may affect actual results and cause these financial projections not to be achieved include, but are not limited to, risks and uncertainties relating to the Partnership’s business (including the Partnership’s ability to achieve strategic goals, objectives and targets over the applicable periods), industry performance, general business and economic conditions, the regulatory environment and other factors described in or referenced under “Cautionary Statement Regarding Forward-Looking Statements” and those risks and uncertainties detailed in the “Risk Factors” sections of the Partnership’s public filings with the SEC, including the Partnership’s Annual Report on Form 10-K filed with the SEC on February 21, 2024. In addition, the projections also reflect assumptions that are subject to change and do not reflect revised prospects for the Partnership’s business, changes in general business or economic conditions or any other transaction or event that has occurred or that may occur following the time the financial projections were prepared. Accordingly, there can be no assurance that these financial projections will be realized or that the Partnership’s future financial results will not materially vary from these financial projections. In addition, different assumptions could result in different projections, which may or may not be realized. These financial projections are being included in this proxy statement to give Unitholders access to this information, but not to influence their decision whether to vote for or against the Merger Proposal. By including the projections in this proxy statement, no one has made or makes any representation to any Unitholder regarding the information included in the financial projections set forth below. The Partnership has made no representation to Parent in the Merger Agreement concerning these or any financial projections.

THE FINANCIAL PROJECTIONS INCLUDED IN THIS PROXY STATEMENT WERE MADE AVAILABLE TO THE CONFLICTS COMMITTEE IN CONNECTION WITH ITS EVALUATION OF THE MERGER PRIOR TO EXECUTTION OF THE MERGER AGREEMENT AND USED BY HOULIHAN LOKEY IN CONNECTION WITH THE RENDERING OF ITS OPINION TO THE CONFLICTS COMMITTEE AND PERFORMING ITS RELATED FINANCIAL ANALYSES. THE FINANCIAL PROJECTIONS INCLUDED IN THIS PROXY STATEMENT WERE ALSO MADE AVAILABLE TO THE PARENT BOARD IN CONNECTION WITH ITS EVALUATION OF THE MERGER AND USED BY WELLS FARGO AT THE DIRECTION OF THE PARENT BOARD IN CONNECTION WITH THE RENDERING OF ITS OPINION TO THE PARENT BOARD AND PERFORMING ITS RELATED

 

61

FINANCIAL ANALYSES PRIOR TO EXECUTION OF THE MERGER AGREEMENT. THE FINANCIAL PROJECTIONS DO NOT TAKE INTO ACCOUNT ANY CIRCUMSTANCES OR EVENTS OCCURRING AFTER THE DATE THEY WERE PREPARED, AND, EXCEPT AS MAY BE REQUIRED IN ORDER TO COMPLY WITH APPLICABLE SECURITIES LAWS, THE PARTNERSHIP DOES NOT INTEND TO UPDATE OR OTHERWISE REVISE THE FINANCIAL PROJECTIONS, OR THE SPECIFIC PORTIONS PRESENTED, TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN THEY WERE MADE OR TO REFLECT THE OCCURRENCE OF FUTURE EVENTS, EVEN IN THE EVENT THAT ANY OR ALL OF THE ASSUMPTIONS ARE SHOWN TO BE IN ERROR.

Set forth below is a summary of the financial projections prepared by management of the General Partner on behalf of the Partnership, made available to the Conflicts Committee and used by Houlihan Lokey in connection with the rendering of its opinion to the Conflicts Committee and performing its related financial analyses and made available to the Parent Board and used by Wells Fargo in connection with the rendering of its opinion to the Parent Board and performing its related financial analyses:

 

(in millions)		Q4 2024E				2025E				2026E				2027E				2028E
Total Revenue		$	189.6			$	794.1			$	789.3			$	772.9			$	784.9
Adjusted EBITDA (1)		$	27.6			$	119.5			$	119.3			$	117.9			$	119.7
Select Cash Flow Statement Items
Cash Taxes		$	(1.0	)		$	(5.2	)		$	(5.3	)		$	(5.1	)		$	(5.1	)
Maintenance capital expenditures		$	(4.6	)		$	(29.6	)		$	(30.8	)		$	(24.9	)		$	(23.5	)
Growth capital expenditures (2)		$	(0.7	)		$	(5.9	)		$	(10.8	)		$	(12.6	)		$	(15.1	)
Proceeds from asset sales		$	0.5			$	0.3			$	0.3			$	0.3			$	0.6
Phantom Stock (3)		$	0.5			$	1.5			$	(1.6	)		$	0.0			$	0.0
Decrease (Increase) in Net Working Capital(4)		$	17.0			$	1.9			$	(0.1	)		$	(0.5	)		$	(0.5	)
Unlevered Free Cash Flow(5)		$	39.3			$	82.5			$	71.0			$	75.0			$	76.2

 

(1)

Adjusted EBITDA is a non-GAAP financial measure used as a supplemental performance and liquidity measure by the Partnership’s management and by external users of the Partnership’s financial statements, such as investors, commercial banks, research analysts, and others, to assess (i) the financial performance of its assets without regard to financing methods, capital structure, or historical cost basis; (ii) the ability of its assets to generate cash sufficient to pay interest costs, support its indebtedness, and make cash distributions to its unitholders; and (iii) its operating performance and return on capital as compared to those of other companies in the midstream energy sector, without regard to financing methods or capital structure. The Partnership defines Adjusted EBITDA as earnings before interest, income taxes, depreciation and amortization, non-cash unit-based compensation expenses, gains and losses on the disposition of property, plant and equipment, impairment and other similar non-cash adjustments.

(2)	Growth capital expenditures are capital expenditures that the Partnership expects will increase its operating income over the long term.

(3)	Phantom Stock represents changes in the liability associated with the Partnership’s Phantom Unit awards that provide (use) cash.

(4)	Excludes the impact of accrued interest expense on changes in net working capital in the amount of $11.6 million, $0.1 million, $0.0 million, ($12.2) million and $0.0 million in Q4 2024, 2025, 2026, 2027 and 2028, respectively.

(5)

Unlevered Free Cash Flow is a non-GAAP financial measure used as a supplemental performance and liquidity measure by the Partnership’s management to assess cash available for reducing debt, investing in additional capital projects, paying distributions, and similar matters. The Partnership defines Unlevered Free Cash Flow as Adjusted EBITDA less cash taxes and capital expenditures, plus or minus, as the case may be, proceeds from the sale of assets, phantom stock and changes in net working capital. With the approval of Parent, estimates of Unlevered Free Cash Flow used by Wells Fargo in its analyses included the adjustments reflected in footnote 4.

 

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Houlihan Lokey Opinion to the Conflicts Committee

On October 3, 2024, Houlihan Lokey verbally rendered its opinion to the Conflicts Committee (which was subsequently confirmed in writing by delivery of Houlihan Lokey’s written opinion addressed to the Conflicts Committee dated October 3, 2024), as to the fairness, from a financial point of view, to the Partnership Unaffiliated Unitholders, of the Merger Consideration to be received by the Partnership Unaffiliated Unitholders pursuant to the Merger Agreement.

Houlihan Lokey’s opinion was directed to the committee (in its capacity as such) and only addressed the fairness, from a financial point of view, to the Partnership Unaffiliated Unitholders, of the Merger Consideration to be received by the Partnership Unaffiliated Unitholders pursuant to the Merger Agreement and did not address any other aspect or implication of the Merger or any other agreement, arrangement or understanding. The summary of Houlihan Lokey’s opinion in this proxy statement is qualified in its entirety by reference to the full text of its written opinion, which is attached as Annex F to this proxy statement and describes certain of the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by Houlihan Lokey in connection with the preparation of its opinion. However, neither Houlihan Lokey’s opinion nor the summary of its opinion and the related analyses set forth in this proxy statement are intended to be, and do not constitute, advice or a recommendation to the Conflicts Committee, the GP Board, any security holder or any other party or person as to how to act or vote with respect to any matter relating to the Merger or otherwise.

In arriving at its opinion, Houlihan Lokey, among other things:

 

•

reviewed an execution version dated October 3, 2024, of Merger Agreement;

 

•

reviewed certain publicly available business and financial information relating to the Partnership that Houlihan Lokey deemed to be relevant, including certain publicly available research analyst estimates (and adjustments thereto) with respect to the future financial performance of the Partnership;

 

•

reviewed certain information relating to the historical, current and future operations, financial condition and prospects of the Partnership made available to us by representatives of the Partnership, including financial projections prepared by the management of the General Partner and approved for Houlihan Lokey’s use by the Conflicts Committee relating to the Partnership for the fiscal years ending December 31, 2024 through 2028 (referred to in this section as the “Partnership Projections”);

 

•

spoke with certain members of the management of the General Partner and certain of its representatives and advisors regarding the business, operations, financial condition and prospects of the Partnership, the Merger, the Partnership Projections, and related matters;

 

•

compared the financial and operating performance of the Partnership with that of other public companies that Houlihan Lokey deemed to be relevant;

 

•

considered publicly available financial terms of certain transactions that Houlihan Lokey deemed to be relevant;

 

•

reviewed the current and historical market prices and trading volume of the Common Units, and the current and historical market prices and trading volumes of the publicly traded securities of certain other companies that Houlihan Lokey deemed to be relevant; and

 

•

conducted such other financial studies, analyses and inquiries and considered such other information and factors as Houlihan Lokey deemed appropriate.

Houlihan Lokey relied upon and assumed, without independent verification, the accuracy and completeness of all data, material and other information furnished, or otherwise made available, to Houlihan Lokey, discussed with or reviewed by Houlihan Lokey, or publicly available, and did not assume any responsibility with respect to such data, material and other information. In addition, management of the General Partner has advised Houlihan Lokey, and Houlihan Lokey assumed, that the Partnership Projections have been reasonably prepared in good

 

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faith on bases reflecting the best currently available estimates and judgments of such management as to the future financial results and condition of the Partnership for the periods covered thereby. With the consent of the Conflicts Committee, Houlihan Lokey assumed that the Partnership Projections are a reasonable basis on which to evaluate the Partnership and the Merger and Houlihan Lokey used and relied upon the Partnership Projections for purposes of Houlihan Lokey’s analyses and its opinion. Houlihan Lokey expressed no view or opinion with respect to the Partnership Projections or the assumptions on which they are based. Houlihan Lokey relied upon and assumed, without independent verification, that there has been no change in the business, assets, liabilities, financial condition, results of operations, cash flows or prospects of the Partnership since the respective dates of the most recent financial statements and other information, financial or otherwise, provided to Houlihan Lokey that would be material to Houlihan Lokey’s analyses or its opinion, and that there is no information or any facts that would make any of the information reviewed by Houlihan Lokey incomplete or misleading.

Houlihan Lokey relied upon and assumed, without independent verification, that (a) the representations and warranties of all parties to the Merger Agreement and all other related documents and instruments that are referred to therein are true and correct, (b) each party to the Merger Agreement and such other related documents and instruments will fully and timely perform all of the covenants and agreements required to be performed by such party, (c) all conditions to the consummation of the Merger will be satisfied without material waiver thereof, and (d) the Merger will be consummated in a timely manner in accordance with the terms described in the Merger Agreement and such other related documents and instruments, without any amendments or modifications thereto. Houlihan Lokey relied upon and assumed, without independent verification, that (i) the Merger will be consummated in a manner that complies in all respects with all applicable foreign, federal and state statutes, rules and regulations, and (ii) all governmental, regulatory, and other consents and approvals necessary for the consummation of the Merger will be obtained and that no delay, limitations, restrictions or conditions will be imposed or amendments, modifications or waivers made that would result in the disposition of any assets of the Partnership or otherwise have an effect on the Merger, the Partnership, or any expected benefits of the Merger, in each case, that would be material to Houlihan Lokey’s analyses or its opinion.

Furthermore, in connection with its opinion, Houlihan Lokey was not requested to make, and did not make, any physical inspection or independent appraisal or evaluation of any of the assets, properties or liabilities (fixed, contingent, derivative, off-balance-sheet or otherwise) of the Partnership or any other party, nor was Houlihan Lokey provided with any such appraisal or evaluation. Houlihan Lokey did not estimate, and expressed no opinion regarding, the liquidation value of any entity or business or the solvency of any party under any applicable laws relating to bankruptcy, insolvency or similar matter. Houlihan Lokey did not undertake any independent analysis of any potential or actual litigation, regulatory action, possible unasserted claims or other contingent liabilities, to which the Partnership is or may be a party or is or may be subject, or of any governmental investigation of any possible unasserted claims or other contingent liabilities to which the Partnership is or may be a party or is or may be subject.

Houlihan Lokey was not requested to, and did not, (a) initiate any discussions with, or solicit any indications of interest from, third parties with respect to any transaction, the securities, assets, businesses or operations of the Partnership or any other party, or any alternatives to the Merger, (b) identify or introduce to the Conflicts Committee or the Partnership, or screen for creditworthiness, any prospective investors, lenders or other participants in the Merger or any other transaction, (c) coordinate or facilitate due diligence efforts by third parties, (d) assist the Conflicts Committee or the Partnership in the negotiation of confidentiality agreements, or (e) except as otherwise provided in Houlihan Lokey’s engagement letter, assist the Conflicts Committee or the Partnership in the compilation or distribution of information concerning the Partnership. Houlihan Lokey’s opinion was necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to Houlihan Lokey as of, the date thereof. Houlihan Lokey did not undertake, and was under no obligation, to update, revise, reaffirm or withdraw its opinion, or otherwise comment on or consider events occurring or coming to its attention after the date thereof. Houlihan Lokey expressed no opinion as to the price or range of prices at which shares of Common Units may be traded or purchased or sold, or otherwise be transferable, at any time.

 

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Houlihan Lokey’s opinion was furnished for the use of the Conflicts Committee (solely in its capacity as such) in connection with its evaluation of the Merger and may not be used for any other purpose without Houlihan Lokey’s prior written consent. Houlihan Lokey’s opinion is not intended to be, and does not constitute, a recommendation to the Conflicts Committee, any security holder or any other party or person as to how to act or vote with respect to any matter relating to the Merger or otherwise.

Houlihan Lokey was not requested to opine as to, and Houlihan Lokey’s opinion does not express an opinion as to or otherwise address, among other things: (i) the underlying business decision of the Conflicts Committee, the GP Board, or the Partnership or their respective security holders or any other party to proceed with or effect the Merger, (ii) the terms of any arrangements, understandings, agreements or documents related to, or the form, structure or any other portion or aspect of, the Merger or otherwise (other than the Merger Consideration to the extent expressly specified herein), (iii) the fairness of any portion or aspect of the Merger to the holders of any class of securities, creditors or other constituencies of the Partnership, or to any other party, except if and only to the extent expressly set forth in the last sentence of its opinion, (iv) the relative merits of the Merger as compared to any alternative business strategies or transactions that might be available for the Partnership or any other party, (v) the fairness of any portion or aspect of the Merger to any one class or group of the Partnership or any other party’s security holders or other constituents vis-à-vis any other class or group of the Partnership or such other party’s security holders or other constituents (including, without limitation, the allocation of any consideration amongst or within such classes or groups of security holders or other constituents), (vi) the solvency, creditworthiness or fair value of the Partnership, or any other participant in the Merger, or any of their respective assets, under any applicable laws relating to bankruptcy, insolvency, fraudulent conveyance or similar matters, or (vii) the fairness, financial or otherwise, of the amount, nature or any other aspect of any compensation to or consideration payable to or received by any officers, directors or employees of any party to the Merger, any class of such persons or any other party, relative to the Merger Consideration or otherwise. Furthermore, no opinion, counsel or interpretation is intended in matters that require legal, regulatory, accounting, insurance, tax or other similar professional advice. It is assumed that such opinions, counsel or interpretations have been or will be obtained from the appropriate professional sources. Furthermore, Houlihan Lokey relied, with the consent of the Conflicts Committee, on the assessments by the Conflicts Committee, the GP Board, the Partnership and their respective advisors, as to all legal, regulatory, accounting, insurance, tax and other similar matters with respect to the Partnership and the Merger or otherwise.

In performing its analyses, Houlihan Lokey considered general business, economic, industry and market conditions, financial and otherwise, and other matters as they existed on, and could be evaluated as of, the date of its opinion. No company, transaction or business used in Houlihan Lokey’s analyses for comparative purposes is identical to the Partnership or the Merger and an evaluation of the results of those analyses is not entirely mathematical. The estimates contained in the financial forecasts prepared by the management of the General Partner and the implied reference range values indicated by Houlihan Lokey’s analyses are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by the analyses. In addition, any analyses relating to the value of assets, businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold, which may depend on a variety of factors, many of which are beyond the control of the Partnership. Much of the information used in, and accordingly the results of, Houlihan Lokey’s analyses are inherently subject to substantial uncertainty.

Houlihan Lokey’s opinion was only one of many factors considered by the Conflicts Committee in evaluating the Merger. Neither Houlihan Lokey’s opinion nor its analyses were determinative of the Merger Consideration or of the views of the Conflicts Committee or management with respect to the Merger or the Merger Consideration. The type and amount of consideration payable in the Merger were determined through negotiation between Parent and the Partnership, and the decision to enter into the Merger Agreement was solely that of the Conflicts Committee and the GP Board.

 

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Financial Analyses

In preparing its opinion to the Conflicts Committee, Houlihan Lokey performed a variety of analyses, including those described below. The summary of Houlihan Lokey’s analyses is not a complete description of the analyses underlying Houlihan Lokey’s opinion. The preparation of such an opinion is a complex process involving various quantitative and qualitative judgments and determinations with respect to the financial, comparative and other analytical methods employed and the adaptation and application of these methods to the unique facts and circumstances presented. As a consequence, neither Houlihan Lokey’s opinion nor its underlying analyses are readily susceptible to summary description. Houlihan Lokey arrived at its opinion based on the results of all analyses undertaken by it and assessed as a whole and did not draw, in isolation, conclusions from or with regard to any individual analysis, methodology or factor. While the results of each analysis were taken into account in reaching Houlihan Lokey’s overall conclusion with respect to fairness, Houlihan Lokey did not make separate or quantifiable judgments regarding individual analyses. Accordingly, Houlihan Lokey believes that its analyses and the following summary must be considered as a whole and that selecting portions of its analyses, methodologies and factors, without considering all analyses, methodologies and factors, could create a misleading or incomplete view of the processes underlying Houlihan Lokey’s analyses and opinion.

The following is a summary of the material financial analyses performed by Houlihan Lokey in connection with the preparation of its opinion and reviewed with the Conflicts Committee on October 3, 2024. The order of the analyses does not represent relative importance or weight given to those analyses by Houlihan Lokey.

For purposes of its analyses, Houlihan Lokey reviewed a number of financial and operating metrics, including:

 

•

Enterprise Value — generally, the value as of a specified date of the relevant company’s outstanding equity securities (taking into account outstanding options and other securities convertible, exercisable or exchangeable into or for its equity securities) plus the amount of its net debt (the amount of its outstanding indebtedness, non-convertible preferred stock, capital lease obligations and non-controlling interests less the amount of cash and cash equivalents on its balance sheet).

 

•

Adjusted EBITDA — generally, the amount of the relevant company’s earnings before interest, taxes, depreciation and amortization, adjusted for certain non-recurring items, for a specified time period.

Unless the context indicates otherwise, enterprise values and equity values used in the selected companies analysis described below were calculated using the closing price of the Partnership’s Common Units and the common stock and common units of the selected companies listed below as of October 1, 2024. The estimates of the future financial and operating performance of Parent relied upon for the financial analyses described below were based on the Partnership Projections (and adjustments thereto). The estimates of the future financial and operating performance of the selected companies listed below were based on certain publicly available research analyst estimates for those companies.

Selected Companies Analysis. Houlihan Lokey reviewed certain data for selected companies, with publicly traded equity securities, that Houlihan Lokey deemed relevant.

The financial data reviewed included:

 

•

Enterprise Value as a multiple of estimated 2024 Adjusted EBITDA; and

 

•

Enterprise Value as a multiple of estimated 2025 Adjusted EBITDA.

The selected companies and resulting data were as follows:

Tier 1:

 

•

Adams Resources & Energy, Inc.

 

•

Ardmore Shipping Corporation

 

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•

Genesis Energy, L.P.

 

•

Navios Maritime Partners, LP.

 

•

NGL Energy Partners LP

 

•

Tsakos Energy Navigation Limited

 

•

Tier 2:

 

•

Delek Logistics Partners, LP

 

•

Mullen Group, Ltd

 

•

Oil States International, Inc.

 

•

Ranger Energy Services, Inc.

 

•

RPC, Inc.

 

•

Suburban Propane Partners, LP.

 

•

World Kinect Corporation

The low, high, median and mean values for the selected Tier 1 companies in this analysis for (i) the Enterprise Value to estimated 2024 Adjusted EBITDA multiples were 3.4x, 10.7x, 4.6x and 5.7x, respectively, and (ii) the Enterprise Value to estimated 2025 Adjusted EBITDA multiples were 2.8x, 8.5x, 4.7x and 5.1x, respectively. The low, high, median and mean values for the selected Tier 2 companies in this analysis for (i) the Enterprise Value to estimated 2024 Adjusted EBITDA multiples were 3.8x, 9.2x, 5.6x and 6.1x, respectively, and (ii) the Enterprise Value to estimated 2025 Adjusted EBITDA multiples were 2.8x, 8.2x, 5.3x and 5.4x, respectively.

Taking into account the results of the selected companies analysis, Houlihan Lokey applied selected multiple ranges of 4.50x to 5.50x estimated 2024 Adjusted EBITDA and 4.25x to 5.25x estimated 2025 Adjusted EBITDA to corresponding financial data for the Partnership, based on the Partnership Projections (as adjusted for certain working capital for affiliate balances). The selected companies analysis indicated implied per unit value reference ranges of $1.23 to $4.23 per Common Unit based on the selected range of multiples of estimated 2024 Adjusted EBITDA and $0.71 to $3.76 per Common Unit based on the selected range of multiples of estimated 2025 Adjusted EBITDA.

Discounted Cash Flow Analysis.

Houlihan Lokey performed a discounted cash flow analysis of the Partnership by calculating the estimated net present value of the projected unlevered free cash flows of the Partnership excluding corporate taxes, and a discounted cash flow analysis of the Partnership by calculating the estimated net present value of the projected unlevered free cash flows of the Partnership including corporate taxes, in each case based on the Partnership Projections.

In conducting the discounted cash flow analysis, Houlihan Lokey calculated terminal values for the Partnership by applying a range of terminal value Adjusted EBITDA multiples 4.25x to 5.25x. The net present values of the Partnership’s projected future cash flows and terminal values were then calculated using discount rates ranging from 10.25% to 12.25% for the analysis excluding corporate taxes and 9.50% to 11.50% for the analysis including corporate taxes. The discounted cash flow analysis of the Partnership, excluding corporate taxes, indicated an implied per unit value reference range of $2.33 to $5.22 per Common Unit; and the discounted cash flow analysis of the Partnership, including corporate taxes, indicated an implied per unit value reference range of $1.56 to $4.49 per Common Unit.

 

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Other Information

Houlihan Lokey observed certain additional information that was not considered part of its financial analysis for its opinion but was noted for informational purposes, including, among other things, premiums paid data for selected transactions involving a publicly traded partnership taken private primarily by its sponsor and public market trading data.

Other Presentations by Houlihan Lokey

In addition to the presentation made to the Conflicts Committee on October 3, 2024, the date on which Houlihan Lokey rendered its opinion, as described above, Houlihan Lokey also delivered preliminary presentation materials to the Conflicts Committee on or around June 14, 2024, June 21, 2024, July 1, 2024, July 8, 2024, July 12, 2024, July 30, 2024, and August 2, 2024 (the “Preliminary Presentation Materials”). Each of the analyses performed in the Preliminary Presentation Materials was subject to further updating and subject to the final analyses presented to the Conflicts Committee on October 3, 2024 by Houlihan Lokey. Each of these analyses was necessarily based on financial, economic, monetary, market, regulatory and other conditions and circumstances as they existed and as could be evaluated by Houlihan Lokey as of the dates on which Houlihan Lokey performed such analyses. Accordingly, the results of the financial analyses may have differed due to changes in those conditions and other information.

The preliminary discussion materials dated June 14, 2024 and filed as Exhibit (c)(2) to the Schedule 13E-3 filed with the SEC in connection with the Merger included, among other things: (i) an overview of certain trading data for the Partnership, which included, among other things, average daily trading values and volume weighted average prices for Common Units during various periods, as well as overall recent trading activity; and (ii) selected analyst commentary.

The preliminary discussion materials dated June 21, 2024 and filed as Exhibit (c)(3) to the Schedule 13E-3 filed with the SEC in connection with the Merger included among other things: (i) a preliminary estimated timeline and next steps and (ii) an overview of certain trading data for the Partnership, which included, among other things, average daily trading values and volume weighted average prices for Common Units during various periods, as well as overall recent trading activity.

The preliminary discussion materials dated July 1, 2024 and filed as Exhibit (c)(4) to the Schedule 13E-3 filed with the SEC in connection with the Merger included among other things: (i) an overview of the Partnership’s historical and projected financial performance based on the Partnership’s public filings, financial projections provided by and discussions with management of the General Partner; (ii) an overview of certain trading data for the Partnership, which included, among other things, average daily trading values, volume weighted average prices and unitholder returns for Common Units during various periods, as well as overall recent trading activity; (iii) a preliminary selected companies analysis, a preliminary selected transactions analysis and a preliminary discounted cash flow analysis; (iv) preliminary premium paid data; (v) analyst estimates and select commentary regarding the Partnership and (iv) illustrative present value of future the Partnership distributions analysis.

The preliminary discussion materials dated July 8, 2024 and filed as Exhibit (c)(5) to the Schedule 13E-3 filed with the SEC in connection with the Merger included among other things: (i) implied premiums and valuation metrics and (ii) an overview of certain trading data for the Partnership, which included, among other things, average daily trading values and volume weighted average prices for Common Units during various periods, as well as overall recent trading activity.

The preliminary discussion materials dated July 12, 2024 and filed as Exhibit (c)(6) to the Schedule 13E-3 filed with the SEC in connection with the Merger included, among other things: (i) implied premiums and valuation metrics; (ii) an overview of certain trading data for the Partnership, which included, among other things, average daily trading values and volume weighted average prices for Common Units during various periods, as well as overall recent trading activity; and (iii) selected analyst commentary.

 

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The preliminary discussion materials dated July 30, 2024 and filed as Exhibit (c)(7) to the Schedule 13E-3 filed with the SEC in connection with the Merger included among other things: (i) a comparison of the Partnership’s projections dated July 23, 2024 vs June 17, 2024 previously provided by and discussions with the General Partner management; (ii) an overview of certain trading data for the Partnership, which included, among other things, average daily trading values and volume weighted average prices for Common Units during various periods, as well as overall recent trading activity; (iii) a preliminary selected companies analysis, a preliminary selected transactions analysis and a preliminary discounted cash flow analysis; and (iv) preliminary premium paid data.

The preliminary discussion materials dated August 2, 2024 and filed as Exhibit (c)(8) to the Schedule 13E-3 filed with the SEC in connection with the Merger included, among other things: (i) implied premiums and valuation metrics; (ii) an overview of certain trading data for the Partnership, which included, among other things, average daily trading values and volume weighted average prices for Common Units during various periods, as well as overall recent trading activity; and (iii) analyst estimates and selected commentary regarding the Partnership.

Miscellaneous

Houlihan Lokey was engaged by the Conflicts Committee to provide an opinion to the Conflicts Committee as to the fairness, from a financial point of view, to the Partnership Unaffiliated Unitholders, of the Merger Consideration to be received by the Partnership Unaffiliated Unitholders pursuant to the Merger Agreement. The Conflicts Committee engaged Houlihan Lokey based on Houlihan Lokey’s experience and reputation. Houlihan Lokey has acted as financial advisor to the Conflicts Committee in connection with, and has participated in certain of the negotiations leading to, the Merger. Pursuant to its engagement by the Conflicts Committee, Houlihan Lokey will receive a fee of $750,000 for rendering its opinion, no portion of which is contingent upon the successful completion of the Merger or the conclusion contained in its opinion. Houlihan Lokey’s engagement letter also provides for a transaction fee of $2,000,000, which becomes payable upon the consummation of the Merger and against which the opinion fee will be fully credited. The Partnership has also agreed to reimburse Houlihan Lokey for certain expenses and to indemnify Houlihan Lokey and certain related parties for certain potential liabilities arising out of Houlihan Lokey’s engagement.

In the ordinary course of business, certain of Houlihan Lokey’s employees and affiliates, as well as investment funds in which they may have financial interests or with which they may co-invest, may acquire, hold or sell, long or short positions, or trade, in debt, equity, and other securities and financial instruments (including loans and other obligations) of, or investments in, the Partnership or any other party that may be involved in the Merger and their respective affiliates or security holders or any currency or commodity that may be involved in the Merger.

Houlihan Lokey and certain of its affiliates may provide investment banking, financial advisory and/or other financial or consulting services to the Partnership, other participants in the Merger or certain of their respective affiliates or security holders in the future, for which Houlihan Lokey and its affiliates may receive compensation. Furthermore, in connection with bankruptcies, restructurings, distressed situations and similar matters, Houlihan Lokey and certain of its affiliates may have in the past acted, may currently be acting and may in the future act as financial advisor to debtors, creditors, equity holders, trustees, agents and other interested parties (including, without limitation, formal and informal committees or groups of creditors) that may have included or represented and may include or represent, directly or indirectly, or may be or have been adverse to, the Partnership, other participants in the Merger or certain of their respective affiliates or security holders, for which advice and services Houlihan Lokey and its affiliates have received and may receive compensation.

Wells Fargo Opinion to Parent

Parent engaged Wells Fargo as its financial advisor in connection with the proposed Merger. On October 3, 2024, Wells Fargo rendered its oral opinion to the Parent Board (which was subsequently confirmed in writing

 

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by delivery of Wells Fargo’s written opinion addressed to the Parent Board dated the same date) as to, as of October 3, 2024, and subject to the various assumptions made, procedures followed, matters considered, and qualifications and limitations on the scope of the review undertaken by Wells Fargo as set forth in its written opinion, the fairness, from a financial point of view, to Parent of the Merger Consideration to be paid in the Merger pursuant to the Merger Agreement.

The full text of Wells Fargo’s written opinion, which describes, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken, is attached as Annex G to this proxy statement and is incorporated by reference in its entirety in this proxy statement. The summary of Wells Fargo’s opinion contained in this proxy statement is qualified in its entirety by reference to the full text of the opinion. Wells Fargo’s opinion was directed to the Parent Board, in its capacity as such, and addressed only the fairness, from a financial point of view, to Parent of the Merger Consideration to be paid by Parent in the Merger pursuant to the Merger Agreement as of the date of such opinion. Wells Fargo’s opinion did not address any other aspects or implications of the Merger, including the fairness from a financial point of view to the Unitholders of the Merger Consideration to be received by such holders in the Merger. Wells Fargo expressed no view as to, and its opinion did not address, the underlying business decision of Parent to effect or enter into the Merger or the relative merits of the Merger as compared to any alternative business strategies that might exist for Parent. Wells Fargo’s opinion did not in any manner address the prices at which the Common Units or Parent common stock would trade or be transferred following the consummation of the Merger or at any time. Wells Fargo’s opinion is not intended to be and does not constitute advice or a recommendation as to how any securityholder of Parent or the Partnership or any other person, including the General Partner, the Conflicts Committee, or the Partnership, should vote or act on any matters relating to the proposed Merger or otherwise.

For purposes of rendering its opinion, Wells Fargo, among other things:

 

•

reviewed an execution version of the Merger Agreement furnished to Wells Fargo on October 2, 2024;

 

•

reviewed certain publicly available business and financial information relating to the Partnership and the industries in which it operates;

 

•

compared the financial and operating performance of the Partnership with publicly available information concerning certain other companies Wells Fargo deemed relevant, and compared current and historic market prices of the Common Units with similar data for such other companies;

 

•

compared the premiums implied by proposed financial terms of the Merger with the premiums implied by the publicly available financial terms of certain other business combinations that Wells Fargo deemed relevant;

 

•

reviewed certain internal financial analyses and forecasts for the Partnership, including perpetuity growth rates applicable to the Partnership beyond the forecast period (referred to in this section as the “Partnership Projections”), prepared by the management of Parent and the Partnership; and

 

•

considered such other financial analyses and investigations and such other information that Wells Fargo deemed relevant.

In giving its opinion, Wells Fargo assumed and relied upon the accuracy and completeness of all information that was publicly available or was furnished to or discussed with Wells Fargo by Parent or the Partnership or otherwise reviewed by Wells Fargo. Wells Fargo did not independently verify any such information, and pursuant to the terms of its engagement by the Parent, Wells Fargo did not assume any obligation to undertake any such independent verification. In relying on the Partnership Projections, Wells Fargo assumed that they had been reasonably prepared on bases reflecting the best currently available estimates and judgments of the management of Parent and the Partnership as to the future performance and financial condition of the Partnership. Wells Fargo expressed no view or opinion with respect to the Partnership Projections, or the

 

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assumptions upon which they are based and, at the direction of Parent, Wells Fargo used and relied upon such projections for purposes of its analyses and opinion. Wells Fargo assumed that any representations and warranties made by the parties to the Merger Agreement in the Merger Agreement or in other agreements relating to the Merger will be true and accurate in all respects that are material to Wells Fargo’s analyses.

Wells Fargo assumed that, in the course of obtaining any regulatory or third party consents, approvals or agreements in connection with the Merger, no delay, limitation, restriction or condition would be imposed that would have an adverse effect on Parent, the Partnership, or the contemplated benefits of the Merger. Wells Fargo also assumed that the Merger would be consummated in compliance with all applicable laws and regulations and in accordance with the terms of the Merger Agreement without waiver, modification or amendment of any term, condition or agreement thereof that is material to Wells Fargo’s analyses or opinion. In addition, Wells Fargo did not make any independent evaluation, inspection or appraisal of the assets or liabilities (contingent or otherwise) of the Partnership, nor had Wells Fargo been furnished with any such evaluations or appraisals. Wells Fargo did not evaluate the solvency of Parent or the Partnership under any state or federal laws relating to bankruptcy, insolvency or similar matters. Wells Fargo further assumed that the final form of the Merger Agreement, when executed by the parties thereto, would conform to the execution copy reviewed by Wells Fargo in all respects material to its analyses and opinion.

Wells Fargo’s opinion only addresses the fairness, from a financial point of view, to Parent of the Merger Consideration to be paid in the Merger and Wells Fargo expressed no opinion as to the fairness of any consideration paid in connection with the Merger to the holders of any class of securities, creditors or other constituencies of Parent or the Partnership. Furthermore, Wells Fargo expressed no opinion as to any other aspect or implication (financial or otherwise) of the Merger, or any other agreement, arrangement or understanding entered into in connection with the Merger or otherwise, including, without limitation, the fairness of the amount or nature of, or any other aspect relating to, any compensation or consideration to be received by or otherwise payable to any officers, directors or employees of any party to the Merger, or class of such persons, relative to the Merger Consideration or otherwise. Furthermore, Wells Fargo did not express any advice or opinion regarding matters that require legal, regulatory, accounting, insurance, tax, environmental, executive compensation or other similar professional advice and relied upon the assessments of Parent and its advisors with respect to such matters and advice.

Wells Fargo’s opinion was necessarily based upon information made available to Wells Fargo as of the date of its opinion and financial, economic, market and other conditions as they existed and could be evaluated on the date thereof. Wells Fargo did not undertake, and is under no obligation, to update, revise, reaffirm or withdraw its opinion, or otherwise comment on or consider events occurring or coming to its attention after the date thereof, notwithstanding that any such developments could affect the opinion. Wells Fargo’s opinion did not address the relative merits of the Merger as compared to any alternative transactions or strategies that might be available to Parent, nor did it address the underlying business decision of the Board or Parent to proceed with or effect the Merger. Wells Fargo did not express any opinion as to the prices at which the Common Units or Parent common stock may be traded or otherwise transferred at any time. The issuance of Wells Fargo’s opinion was approved by a fairness committee of Wells Fargo.

In preparing its opinion, Wells Fargo performed a variety of financial and comparative analyses, including those described below. The summary of the analyses below is not a complete description of Wells Fargo’s opinion or the analyses underlying, and factors considered in connection with, Wells Fargo’s opinion. The preparation of a financial opinion is a complex analytical process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances and, therefore, a financial opinion is not readily susceptible to summary description.

In performing its analyses, Wells Fargo considered business, economic, industry and market conditions, financial and otherwise, and other matters as they existed on, and could be evaluated as of, the date of its opinion. No company, business or transaction used in Wells Fargo’s analyses for comparative purposes is identical to the

 

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Partnership or the proposed Merger. While the results of each analysis were taken into account in reaching its overall conclusion with respect to fairness to Parent from a financial point of view of the Merger Consideration to be paid in the Merger, Wells Fargo did not make separate or quantifiable judgments regarding individual analyses. The reference ranges indicated by Wells Fargo’s financial analyses are illustrative and not necessarily indicative of actual values nor predictive of future results or values, which may be significantly more or less favorable than those suggested by the analyses. In addition, any analyses relating to the value of assets, businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold, which may depend on a variety of factors, many of which are beyond Parent’s control and the control of Wells Fargo. Much of the information used in, and accordingly the results of, Wells Fargo’s analyses are inherently subject to substantial uncertainty.

Wells Fargo was selected by Parent to act as its financial advisor based on Wells Fargo’s qualifications, experience and reputation, including Wells Fargo’s knowledge and experience with respect to public merger and acquisition transactions, MLPs, Parent’s and the Partnership’s industries generally, and Parent and the Partnership particularly, as well as substantial experience advising MLPs and other companies with respect to transactions similar to the Merger.

Wells Fargo was not requested to, and it did not, recommend or determine the specific consideration payable in the Merger or opine that any specific consideration constituted the only appropriate consideration for the Merger. The type and amount of consideration payable in the Merger were determined through negotiations between Parent and the Partnership and the decision of Parent to enter into the Merger Agreement was solely that of the Parent Board.

Wells Fargo’s opinion to the Parent Board was one of many factors taken into consideration by the Parent Board in deciding to consider, approve and declare the advisability of the Merger Agreement and the transactions contemplated by the Merger Agreement. Consequently, the analyses described above should not be viewed as determinative of the opinion of the Parent Board with respect to the Merger Consideration pursuant to the Merger Agreement or of whether the Parent Board or Parent management would have been willing to agree to a different consideration.

Summary of Financial Analyses of Wells Fargo

The following is a summary of the material financial analyses performed by Wells Fargo in connection with its oral opinion and the preparation of its written opinion to the Parent Board, both provided as of October 3, 2024. The following summary is not a complete description of the financial analyses performed and factors considered by Wells Fargo in connection with its opinion. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before October 2, 2024. For its analyses, Wells Fargo utilized and relied upon the number of issued and outstanding Common Units provided by the management of Parent.

Wells Fargo performed a discounted cash flow analysis with respect to the Partnership by calculating the estimated net present value (as of October 1, 2024) of (a) the projected after-tax, unlevered, free cash flows of the Partnership based on the Partnership Projections from October 1, 2024 through December 31, 2028 and (b) an estimated terminal value for the Partnership derived by application of perpetuity growth rates approved for Wells Fargo’s use by Parent management ranging from negative 1.0% to positive 1.0%. The present values of the cash flows and the implied terminal values were then calculated using discount rates reflecting estimated weighted average cost of capital for the Partnership ranging from 11.0% to 12.0%. The discounted cash flow analysis for the Partnership indicated an implied value range per Common Unit of $3.81 to $7.32, as compared to the Merger Consideration in the Merger of $4.02.

 

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Certain Additional Information

Wells Fargo also observed certain additional information that was not considered part of its financial analyses with respect to its opinion but was noted for informational purposes, including the following:

Selected Premiums Paid Analysis. Wells Fargo performed with respect to the Partnership a selected premiums paid analysis, which is designed to derive an implied per unit price range of a company’s equity securities based on observed premiums in selected transactions. In connection with its analysis, Wells Fargo reviewed publicly available statistics for certain transactions involving midstream targets deemed relevant. By applying a range of premiums of 4.8% to 26.5% (reflecting the 25^th and 75^th percentiles of the observed one-day premiums to last unaffected price) to the unaffected unit price for the Partnership of $3.00 (closing trading price on May 23, 2024), this analysis indicated a range of implied per unit prices for the Partnership of $3.14 to $3.79. By applying a range of premiums of 13.1% to 26.2% (reflecting the 25^th and 75^th percentiles of the observed one-day premiums to last unaffected price in those selected transactions in which the consideration was all cash) to the unaffected unit price for the Partnership of $3.00 (closing trading price on May 23, 2024), this analysis indicated a range of implied per unit prices for the Partnership of $3.39 to $3.79.

Historical Trading Prices. Wells Fargo reviewed the historical closing trading price averages for the Common Units over the periods indicated, and the premiums to such averages reflected by the Merger Consideration.

 

Averaging Period Through October 1, 2024		Average Partnership Per Common Unit Price				Premium to Corresponding Average Price Reflected by Merger Consideration of $4.02
Last 30 Days		$	3.58				12.2	%
Last 60 Days		$	3.64				10.5	%
Last Six Months		$	3.28				22.6	%
Last Twelve Months		$	2.87				40.2	%

Miscellaneous

Parent has agreed to pay Wells Fargo for its services in connection with the proposed Merger a fee of $3.0 million, of which $2.0 million became payable upon the execution of the Merger Agreement and the remainder of which is contingent upon completion of the Merger. Parent agreed to reimburse Wells Fargo for its expenses, including fees and expenses of counsel, incurred in connection with its engagement. In addition, Parent agreed to indemnify Wells Fargo and related parties against certain liabilities, including liabilities under the federal securities laws, relating to or arising out of Wells Fargo’s engagement.

During the two years preceding the date of Wells Fargo’s opinion, Wells Fargo and its affiliates have had investment or commercial banking relationships with the Partnership and its affiliates, for which Wells Fargo and its affiliates have received customary compensation. Such relationships included acting as joint bookrunner on an offering of debt securities by the Partnership in January 2023, as sole dealer manager on an offer by the Partnership to repurchase debt securities in February 2023, and as syndication agent and joint bookrunner on the Partnership’s facility agreement in February 2023. Wells Fargo or its affiliates are also an agent and a lender to one or more of the credit facilities of the Partnership. Wells Fargo anticipates that it and its affiliates will arrange and/or provide financing to Parent in connection with the Merger for customary compensation. In the two years prior to the date of Wells Fargo’s opinion, for investment banking services, Wells Fargo and its affiliates received fees of approximately $3 million from the Partnership and its affiliates. Wells Fargo may seek to provide financial advisory and financing services to Parent, the Partnership and their respective affiliates in the future and would expect to receive fees for the rendering of these services. Wells Fargo and its affiliates hold, on a proprietary basis, less than 1% of the outstanding common units of the Partnership. In the ordinary course of

 

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business, Wells Fargo and its affiliates may trade or otherwise effect transactions in the securities or other financial instruments (including bank loans or other obligations) of Parent, the Partnership, and certain of their affiliates for Wells Fargo’s own account and for the accounts of Wells Fargo’s customers and, accordingly, may at any time hold a long or short position in such securities or financial instruments.

Other Presentations by Wells Fargo Securities, LLC

In addition to the presentation delivered to the Parent Board on October 3, 2024 (the date on which Wells Fargo rendered its opinion), which has been filed with the SEC as an exhibit to the Schedule 13E-3 of which this proxy statement forms a part and as described above, a copy of the preliminary illustrative presentation delivered by Wells Fargo to the Parent Board on October 1, 2024 containing preliminary illustrative financial analyses is also attached as an exhibit to the Schedule 13E-3. This preliminary illustrative presentation by Wells Fargo does not constitute, or form the basis of, an opinion of Wells Fargo with respect to the Merger Consideration, and the preliminary illustrative financial analyses therein were based on economic, monetary, market and other conditions as in effect on, and the information made available to Wells Fargo as of, the date of that presentation. The October 1, 2024 presentation contained similar information as the information included in the October 3 presentation, except that the October 3, 2024 presentation was updated principally to account for revised financial forecasts and other estimated financial data for the Partnership from Parent management, updated market data as of October 1, 2024, and the financial impact of the General Partner Interest.

In addition to the foregoing, copies of preliminary illustrative presentations delivered by Wells Fargo (together with members of Parent management) to the Parent Board on April 25, 2024 and May 24, 2024 containing preliminary illustrative financial analyses are also attached as exhibits to the Schedule 13E-3. These preliminary illustrative presentations did not constitute, or form the basis of, an opinion of Wells Fargo with respect to the Merger Consideration, and the preliminary illustrative financial analyses therein were based on economic, monetary, market and other conditions as in effect on, and the information made available to Wells Fargo as of, the date of the respective presentation.

The preliminary discussion materials dated April 25, 2024 and May 24, 2024 and filed as Exhibit (c)(11) and Exhibit (c)(12), respectively, to the Schedule 13E-3 filed with the SEC in connection with the Merger included, among other things, a discussion of: (i) historical trading prices for the Common Units and research of selected equity research analysts; (ii) premiums reflected in selected precedent transactions and a preliminary discounted cash flow analysis; and (iii) an illustrative timeline for the transaction.

The Support Agreements

On October 3, 2024, the Partnership entered into separate Support Agreements with each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin, pursuant to which, among other things, each of the Support Parties has agreed, in their capacity as a limited partner of the Partnership, to vote their respective Common Units in favor of the Merger Agreement and the Merger. Under the Support Agreements, each of the Support Parties have also agreed that they will not transfer any of their respective Common Units except to an affiliate of the General Partner; provided, however, that any such transferee must have executed and delivered to the Partnership a counterpart to such Support Agreement pursuant to which such transferee will agree to be bound by all of the terms and provisions of such Support Agreement, as if such transferee were an original party to the agreement. As of the close of business on the Record Date, the Support Parties owned an aggregate of [●] Common Units representing approximately [●]% of the outstanding Common Units, entitled to vote at the Special Meeting.

The Support Agreement will terminate upon the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement, (iii) the election of the respective Support Party in the event that the Conflicts Committee makes a Partnership Adverse Recommendation Change and (iv) the mutual written agreement of the parties to such Support Agreement. The full text of the Support Agreements entered into between the Partnership and each

 

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of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin are attached as Annex B, Annex C, Annex D and Annex E, respectively, to this proxy statement. The Partnership encourages you to read each Support Agreement carefully and in its entirety.

Interests of the Directors and Executive Officers of the General Partner in the Merger

In considering the recommendation of the GP Board that Unitholders vote “FOR” the Merger Proposal, Unitholders should be aware that some of the General Partner’s directors and executive officers have financial interests in the Merger that may be different from, or in addition to, those of Unitholders generally. The GP Board was aware of these interests and considered them, among other matters, in approving the Merger Agreement and making its recommendation that the Unitholders approve the Merger Agreement.

Ownership in Parent

As of the Effective Time of the Merger, the Partnership will be wholly owned by Parent. As of the Record Date, Ruben S. Martin, III (the Chairman of the GP Board and the President and Chief Executive Officer and a Director of Parent) and Robert D. Bondurant (the President and Chief Executive Officer of the General Partner and a Director of Parent) along with the General Partner’s other directors and executive officers owned, directly and indirectly, an aggregate of [●]% of the equity interests in Parent and as a result will have an indirect equity interest in the Partnership after the Merger.

Indemnification; Directors’ and Officers’ Insurance

All of the directors and executive officers of the General Partner will receive continued indemnification and insurance coverage for their actions as directors and executive officers after the Effective Time of the Merger.

Beneficial Ownership of Common Units; Accelerated Vesting

Certain of the directors and executive officers of the General Partner hold Common Units and will be entitled to receive the Merger Consideration in connection with the Merger. Additionally, certain of the directors and executive officers of the General Partner hold phantom units, phantom unit appreciation rights and restricted units under the Martin Midstream Partners L.P. 2017 Restricted Unit Plan (the “Partnership Restricted Unit Plan”) and the Martin Midstream Partners L.P. 2021 Phantom Unit Plan (the “Partnership Phantom Unit Plan”), as applicable. Each holder of a restricted unit or phantom unit will receive an amount equal to the Merger Consideration with respect to each such unit that becomes vested pursuant to the terms of the Merger Agreement. Each holder of a phantom unit appreciation right will receive an amount equal to the Merger Consideration less the date of grant value (as determined in accordance with the applicable award agreement) with respect to each phantom unit appreciation right that becomes vested pursuant to the terms of the Merger Agreement. See “Common Unit Ownership” for more information.

Position of the Buyer Filing Parties as to the Fairness of the Merger

Under the SEC rules governing “Rule 13e-3 transactions,” each of the Buyer Filing Parties may be deemed to be an affiliate of the Partnership and engaged in such transaction and, therefore, is required to express its belief as to the fairness of the proposed Merger to the Partnership Unaffiliated Unitholders. The Buyer Filing Parties are making the statements included in this section for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The Buyer Filing Parties have interests in the Merger that are different from, and in addition to, the Partnership Unaffiliated Unitholders.

The Buyer Filing Parties believe that the Merger (which is the Rule 13e-3 transaction for which a Schedule 13E-3 Transaction Statement was filed with the SEC) is fair and reasonable to the Partnership Unaffiliated Unitholders on the basis of the factors described in “Special Factors—Recommendations of the

 

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Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal” (which the Buyer Filing Parties agree with and adopt), “Special Factors—Purpose and Reasons of the Buyer Filing Parties for the Merger” and the additional factors described below. The Buyer Filing Parties believe the factors considered by, and findings of, the Conflicts Committee provide a reasonable basis upon which to form their belief that the Merger is fair to the Partnership Unaffiliated Unitholders.

None of the Buyer Filing Parties nor any of their respective affiliates (other than (i) the Parent Board, which performed an evaluation only with respect to Parent and (ii) the Conflicts Committee and GP Board, which performed an evaluation only with respect to the Partnership and the Partnership Unaffiliated Unitholders) undertook an independent evaluation of the fairness of the Merger to the Partnership Unaffiliated Unitholders or engaged a financial advisor for such purpose. The GP Board delegated to the Conflicts Committee the exclusive power and authority to investigate, review, evaluate and make a recommendation to the GP Board with respect to, the proposed transaction, which included the power to negotiate, or delegate to any person the ability to negotiate, the terms and conditions of the Proposed Transaction and to determine whether the Proposed Transaction is fair and reasonable to, and in the best interest of, the Partnership and the holders of the Common Units (other than the General Partner, Parent and their respective affiliates (other than the Partnership and its subsidiaries), including any officer, director, equityholder or member thereof). None of the Buyer Filing Parties participated in the deliberations of the Conflicts Committee regarding, or received advice from the Conflicts Committee’s independent legal or financial advisors as to, the substantive or procedural fairness of the Merger.

Based on the knowledge and analysis by the Buyer Filing Parties of available information regarding the Partnership, as well as discussions with members of the General Partner’s senior management regarding the Partnership and its business and the factors considered by, and the analysis and resulting conclusions of, the Buyer Filing Parties discussed in this proxy statement in “Special Factors—Purpose and Reasons of the Buyer Filing Parties for the Merger,” the Buyer Filing Parties believe that the Merger is fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders. In particular, the Buyer Filing Parties believe that the proposed Merger is fair and reasonable to the Partnership Unaffiliated Unitholders based on their consideration of the following factors, among others, which are not presented in any relative order of importance:

 

•

the Merger Consideration is an all-cash amount, which the GP Board believes provides greater value to the Partnership Unaffiliated Unitholders than the long-term value of the Partnership as a publicly traded partnership, after taking into account the risks and challenges facing the Partnership’s current business and financial prospects;

 

•

the receipt of cash consideration eliminates downside risk associated with the continued ownership of the Common Units, including any possible decrease in the future revenues and free cash flow, growth or value of the Partnership following the Merger;

 

•

the Merger Consideration with respect to the Common Units constitutes a 34.00% premium to the market closing price prior to Parent’s initial offer made on May 24, 2024 and an 11.33% premium to the trailing 30-trading day volume-weighted average price on October 3, 2024, the date of the Merger Agreement;

 

•

the Buyer Filing Parties believe that investor sentiment now disfavors MLP structures as compared to alternative structures and, as a result, the state of the MLP debt and equity capital markets will continue to present challenges for the Partnership to fund acquisitions and growth capital expenditures;

 

•

the Partnership is a micro-cap MLP and the Common Units are thinly-traded, resulting in a lack of liquidity for Unitholders with significant holdings, without a negative impact on the price of the Common Units;

 

•

the Merger Consideration provides liquidity to the Partnership Unaffiliated Unitholders;

 

•

the Merger is subject to receipt of Unitholder Approval; recognizing that the Support Parties have agreed to vote or cause the [●] Common Units they collectively owned as of the Record Date, or

 

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approximately [●]% of the outstanding Common Units as of such date, to be voted in favor of the Merger pursuant to the Parent Group Support Agreement;

 

•

certain terms of the Merger Agreement, principally:

 

•

provisions requiring the General Partner to declare and cause the Partnership to pay regular quarterly cash distributions on the Common Units consistent with past practice, subject to certain specified criteria;

 

•

provisions permitting the GP Board to change its recommendation to the Unitholders if it determines in good faith (after consultation with its financial advisor and outside legal counsel) in response to an intervening event or an unsolicited acquisition proposal that constitutes a Superior Proposal and a failure to make a recommendation change would be inconsistent with its duties under applicable law as modified by the Partnership Agreement; and

 

•

provisions requiring Parent, in certain circumstances, to pay the Parent Termination Fee of $6.0 million (an amount in excess of two times the amount of the Partnership Termination Fee of $2.5 million), including if Parent fails to consummate the Merger within five business days after receiving a closing notice from the Partnership or the Conflicts Committee as contemplated by Merger Agreement, and the Partnership or the Conflicts Committee terminates the Merger Agreement.

 

•

the authorization of the Conflicts Committee to, on behalf of the Partnership Unaffiliated Unitholders, (i) make such investigation of the Proposed Transaction and the alternative of maintaining the status quo, as the Conflicts Committee deemed necessary or appropriate, (ii) review, evaluate and negotiate (or to supervise and direct the negotiations on behalf of the Partnership with respect to) the terms and conditions, and determine the advisability, of the Proposed Transaction and related agreements and arrangements, (iii) determine whether the Proposed Transaction is fair and reasonable to, and in the best interest of, the Partnership and the holders of the Common Units (other than the General Partner, Parent and their respective affiliates (other than the Partnership and its subsidiaries), including any officer, director, equityholder or member thereof), (iv) determine whether to approve the Proposed Transaction (with such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including, but not limited to, Section 7.9(a) thereof) and to make a recommendation to the GP Board whether to approve the Potential Transaction and, if appropriate, to recommend that the Unitholders approve the Proposed Transaction (it being understood that (A) any Proposed Transaction was subject to receipt by the Partnership, the GP Board or the Conflicts Committee, in the first instance, of an offer or proposal by Parent or its affiliates in respect of the Proposed Transaction, and (B) the Proposed Transaction was subject to the approval of the GP Board), and (v) to make any other recommendations to the GP Board and/or the Unitholders regarding the Potential Transaction as the Conflicts Committee shall determine to be appropriate;

 

•

the authorization of the Conflicts Committee (i) to engage in discussions with the management, representatives and advisors of the General Partner, the Partnership, Parent and any other party involved in the proposed transaction; (ii) to select and retain, at the expense of the Partnership, an independent financial advisor, independent legal counsel, and such other advisors (including accountants and other similar advisors) as the Conflicts Committee shall deem necessary or appropriate to assist it with the performance and fulfillment of such duties; (iii) to enter into such contracts providing for the retention, compensation, reimbursement of expenses and indemnification of such financial advisor, legal counsel and other advisors as the Conflicts Committee may in its sole discretion deem necessary or appropriate, any such contract of which is hereby approved, adopted, confirmed and ratified; and (iv) to incur, for the account of the Partnership, such other costs and expenses as are necessary or appropriate in connection with the performance of such duties (including expenses of the legal, financial, and other advisors retained by the Conflicts Committee);

 

•

a requirement in such authorization that the Conflicts Committee would not have any duty to consider the interests of the General Partner, Parent or their affiliates;

 

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•

the unanimous determination and recommendation of the Conflicts Committee, who have no economic interest or expectancy of an economic interest in the Buyer Filing Parties following the Merger; and

 

•

the other factors considered by, and the analysis, discussion and resulting conclusions of the Conflicts Committee and the GP Board described in the section entitled “—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal,” which analysis, discussion and resulting conclusions the Buyer Filing Parties expressly adopt as their own.

The Buyer Filing Parties did not find it practicable to assign, nor did they assign, specific relative weights to the individual factors considered in reaching their conclusion as to fairness. The Buyer Filing Parties also did not consider the liquidation value of the Partnership’s assets, and did not perform a liquidation analysis, because they consider the Partnership to be a viable going concern. Therefore, no appraisal of liquidation value was sought for purposes of valuing the Common Units, and the Buyer Filing Parties believe that the liquidation value of the Common Units is irrelevant to a determination as to whether the proposed merger is fair to the Partnership Unaffiliated Unitholders.

The Buyer Filing Parties did not consider net book value, which is an accounting concept, for purposes of determining the fairness of the Merger Consideration to the Partnership Unaffiliated Unitholders because, in the Buyer Filing Parties’ view, net book value is neither indicative of the Partnership’s market value nor its value as a going concern, but rather is an indicator of historical costs.

While the Buyer Filing Parties considered the trading history of the Partnership’s Common Units and noted that at various times, this trading history reflected prices above the $4.02 to be paid for each Common Unit held by the Partnership Unaffiliated Unitholders as part of the Merger Consideration, the Buyer Filing Parties concluded that these factors were not important in determining present value.

The Merger is not subject to a Majority of the Minority Provision requiring the approval of the holders of at least a majority of the Common Units who are unaffiliated with Parent.

The Conflicts Committee did not retain an unaffiliated representative to act solely on behalf of the Partnership Unaffiliated Unitholders for purposes of negotiating the terms of the Merger Agreement. The Buyer Filing Parties did not consider this as a factor because the Conflicts Committee was charged with representing the interests of the Partnership Unaffiliated Unitholders, it consisted solely of independent directors who are not officers or controlling equityholders of the Partnership or the Buyer Filing Parties, it engaged independent financial and legal advisors to act on its behalf and it was actively involved in deliberations and negotiations regarding the Merger on behalf of the Partnership Unaffiliated Unitholders.

Other than as discussed in “—Background of the Merger,” the Buyer Filing Parties (including the Proposed Transaction and the proposals received from Nut Tree and Caspian) are not aware of any firm offers made by any other person in the past two years to acquire the Partnership, the General Partner Interest in the Partnership or all or a substantial part of the assets of the Partnership. However, the Buyer Filing Parties in reaching their conclusion as to fairness, considered that the Conflicts Committee, in making its determination and approvals, considered, as discussed further in “—Background of the Merger,” in the process of negotiations with Parent and in determining the final Merger Consideration the values set forth by Nut Tree and Caspian in their proposals, as well as the information relating to such values as referenced in the proposals. In any event, the Buyer Filing Parties have no intention of selling their Common Units or any of the General Partner Interest beneficially owned by them, and therefore did not consider the possibility that any such offers might be made in reaching their conclusion as to fairness.

The Buyer Filing Parties’ consideration of the factors described above reflects their assessment of the fairness of the Merger. The Buyer Filing Parties implicitly considered the value of the Partnership in a sale as a going concern by taking into account the Partnership’s current and anticipated business, financial conditions,

 

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results of operations, prospects and other forward-looking matters. The Buyer Filing Parties did not, however, explicitly calculate a stand-alone going concern value of the Partnership because the Buyer Filing Parties believe that going concern value is not an appropriate method of determining the value of the Partnership’s Common Units for purposes of the Merger. In light of the fact that the Buyer Filing Parties already have, and plan to retain control of the Partnership, the Buyer Filing Parties do not believe that it would be appropriate for the Partnership’s Common Units held by the Partnership Unaffiliated Unitholders to be valued on a basis that includes a control premium.

The foregoing discussion of the information and factors considered and weight given by the Buyer Filing Parties is not intended to be exhaustive, but includes the material factors considered by the Buyer Filing Parties. The Buyer Filing Parties’ views as to the fairness of the proposed Merger should not be construed as a recommendation to the Partnership Unaffiliated Unitholders to approve the Merger Agreement. Other than the GP Board, the Buyer Filing Parties do not make any recommendation as to how the Partnership Unaffiliated Unitholders should vote their Common Units on the Merger Proposal.

Purpose and Reasons of the Buyer Filing Parties for the Merger

Under the SEC rules governing “Rule 13e-3 transactions,” each of the Buyer Filing Parties may be deemed to be an affiliate of the Partnership and to be engaged in the going-private transaction and, therefore, required to express its purpose and reasons for the proposed Merger to the Partnership Unaffiliated Unitholders. The Buyer Filing Parties are making the statements included in this section for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act.

If the Merger is completed, the Partnership will become a subsidiary of Parent. For the Buyer Filing Parties, the purpose of the Merger is to effectuate the transactions contemplated by the Merger Agreement and to bear the rewards and risks of such ownership after the Common Units cease to be publicly traded.

The Buyer Filing Parties did not consider any alternatives for achieving these purposes.

The Buyer Filing Parties believe that the Partnership could operate more efficiently and effectively as a private entity. The Buyer Filing Parties believe that improvements to the Partnership’s cost structure and operational flexibility could be achieved, free of the pressures imposed on a publicly traded partnership with regard to operating results and reporting requirements. In addition, the Buyer Filing Parties considered what they believed were competitive advantages of the Partnership ceasing to be a public entity, including greater ability to capitalize on commercial and market opportunities, if any. Further, absent the reporting and other substantial burdens placed on public entities, the Buyer Filing Parties believe that the management and employees of the Partnership and the General Partner will be able to better execute on the Partnership’s future strategic plans due to increased time and narrowed focus.

The Buyer Filing Parties have undertaken to pursue the Merger at this time for the reasons described above. Although the Buyer Filing Parties believe that there will be opportunities associated with their investment in the Partnership, the Buyer Filing Parties realize that there are also substantial risks (including the risks and uncertainties relating to the prospects of the Partnership) and that such opportunities may never be fully realized. Further, following the Merger, there will be no trading market for the equity securities of the Partnership.

The Buyer Filing Parties believe that structuring the transaction as a merger transaction is preferable to other transaction structures because (i) it will enable Parent to acquire, through Merger Sub, all of the outstanding Public Common Units at the same time and (ii) it represents an opportunity for the Partnership’s unitholders (except Parent and its subsidiaries) to receive a premium for their Common Units. The Merger Consideration represents a 34.00% premium to the market closing price prior to Parent’s initial offer made on May 24, 2024 and an 11.33% premium to the trailing 30-trading day volume-weighted average price on October 3, 2024, the date of the Merger Agreement. Further, the Buyer Filing Parties believe that structuring the transaction as a

 

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merger transaction provides a prompt and orderly transfer of ownership of the Partnership in a single step, without the necessity of financing separate purchases of the Common Units in a tender offer and implementing a second-step merger to acquire any Common Units not tendered into any such tender offer, and without incurring any additional transaction costs associated with such activities.

Plans for the Partnership After the Merger

It is expected that the Partnership’s operations will be conducted after the Merger substantially as they currently are being conducted, except that the Partnership will be a wholly owned subsidiary of Parent.

As of the date of this proxy statement, other than the Merger, the Buyer Filing Parties and the Buyer Filing Parties Control Persons (as defined below) have no current plans, proposals or negotiations which would relate to or result in an extraordinary transaction involving the Partnership’s business or management, such as a merger, reorganization, liquidation, relocation of any operations, or sale or transfer of a material amount of assets, the incurrence of any indebtedness (other than debt financing described herein), any change in the management of the Partnership or any other material change in the Partnership’s structure or business. Following the Merger, the Buyer Filings Parties plan to evaluate and review the Partnership’s business and operations and initiate a review of new plans and proposals which they consider to be in the best interests of the Partnership, including engaging in acquisitions of new businesses or assets, dispositions of existing businesses or assets, the movement of businesses or assets within Parent’s organizational structure, the alteration of the mix of assets held by Parent or any of the types of extraordinary transactions described above.

Primary Benefits and Detriments of the Merger

Benefits and Detriments to Partnership Unaffiliated Unitholders

The primary benefits of the Merger to the Partnership Unaffiliated Unitholders, who will not have a continuing interest in the Partnership following the Merger, include the following:

 

•

The receipt by such holders of the Common Units of $4.02 per Common Unit in cash, without interest, which represents an approximate 11.33% premium to the trailing 30-trading day volume-weighted average price of the Common Units at the close of regular trading hours on the Nasdaq on October 3, 2024;

 

•

the elimination of downside risk associated with the continued ownership of the Common Units, including any possible decrease in the future revenues and free cash flow, growth or value of the Partnership following the Merger; and

 

•

the additional benefits discussed in the “—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal—Reasons for the GP Board’s Recommendation.”

The primary detriments of the Merger to the Partnership Unaffiliated Unitholders, who will not have a continuing interest in the Partnership following the Merger, include the following:

 

•

such Unitholders will cease to have an interest in the Partnership and, therefore, will no longer benefit from possible increases in the future revenues and free cash flow, growth or value of the Partnership or payment of distributions on Common Units, if any;

 

•

the all-cash aspect of the Merger Consideration does not allow the Partnership Unaffiliated Unitholders to benefit from any synergies that may result from the Merger; and

 

•

the receipt of cash in exchange for Common Units pursuant to the Merger will generally be a taxable transaction to Unitholders and may result in taxable gains, depending on each Unitholder’s particular tax situation.

 

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Benefits and Detriments to the Partnership and the Buyer Filing Parties and the Partnership’s Other Affiliates

The primary benefits of the Merger to the Partnership and the Buyer Filing Parties and the Partnership’s other affiliates include the following:

 

•

the Merger will enable Parent to focus on managing the assets of the Partnership for Parent;

 

•

Parent and its subsidiaries (other than Merger Sub), as the owners of the Partnership, and the owners of Parent, as the indirect owners of the Partnership, will become the beneficiaries of any savings associated with the reduced burden and administrative expenses of complying with the substantive requirements that federal securities laws impose on public companies;

 

•

if the Partnership successfully executes its business strategy, the value of Parent’s equity investment could increase because of possible increases in future revenues and cash flow, increases in the underlying value of the Partnership or the payment of distributions, if any, that would accrue to the Partnership;

 

•

the Partnership will no longer have continued pressure to meet quarterly forecasts set by analysts. In contrast, as a publicly traded partnership, the Partnership currently faces public unitholder and investment analyst pressure to make decisions that may produce better short-term results, but which may not over the long-term lead to a maximization of their equity value;

 

•

the Partnership will have more flexibility to change its capital spending strategies without public market scrutiny or analysts’ quarterly expectations;

 

•

Parent’s management believes that the Merger will be accretive to Parent’s earnings per share and cash flow per share; and

 

•

the additional benefits discussed in the “—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal—Reasons for the GP Board’s Recommendation” and “—Interests of the Directors and Executive Officers of the General Partner in the Merger.”

The primary detriments of the Merger to the Partnership and the Buyer Filing Parties include the following:

 

•

following the Merger, there will be no trading market for the equity securities of the Partnership, as the surviving entity;

 

•

as a result of the Merger, Parent will lose the Common Units as a potential acquisition currency;

 

•

the Partnership’s growth forecasts may not be realized, which could result in the future impairment of Parent’s investment in the Partnership; and

 

•

the potential benefits sought in the Merger may not be realized.

Ownership of the Partnership After the Merger

After the Merger, the Partnership will survive as a direct wholly owned subsidiary of Parent. As of the Record Date, Ruben S. Martin, III (the Chairman of the GP Board and the President and Chief Executive Officer and a Director of Parent) and Robert D. Bondurant (the President and Chief Executive Officer of the General Partner and a Director of Parent) along with the General Partner’s other directors and executive officers owned, directly and indirectly, an aggregate of [●]% of the equity interests in Parent and as a result will have an indirect equity interest in the Partnership after the Merger.

Regulatory Approvals and Clearances Required for the Merger

On October 18, 2024, the Partnership and Parent each caused to be filed the required notice and furnished the required information under the HSR Act to the Antitrust Division of the DOJ and the FTC. One of the

 

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conditions to the completion of the Merger is the termination or expiration of any waiting period applicable to the transactions contemplated by the Merger Agreement under any applicable antitrust law. The 30-day waiting period under the HSR Act will expire on November 18, 2024 at 11:59 PM, unless extended by a request for additional information or documentary material pursuant to 16 C.F.R. Section 803.20. Under the HSR Act and related rules, certain transactions, including the Merger, may not be completed until notifications have been given and information is furnished to the Antitrust Division of the DOJ and the FTC and all statutory waiting period requirements have been satisfied.

At any time before or after consummation of the Merger, notwithstanding the expiration or termination of the applicable waiting period under the HSR Act, the Antitrust Division of the DOJ or the FTC, or any state, could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the completion of the Merger, seeking divestiture of substantial assets of the parties or requiring the parties to license, or hold separate, assets or terminate existing relationships and contractual rights. At any time before or after the completion of the Merger, and notwithstanding the expiration or termination of the applicable waiting period under the HSR Act, any state could take such action under the antitrust laws as it deems necessary or desirable in the public interest. Such action could include seeking to enjoin the completion of the Merger or seeking divestiture of substantial assets of the parties. Private parties may also seek to take legal action under the antitrust laws under certain circumstances. Parent, the General Partner and the Partnership do not believe that the Merger violates U.S. antitrust law, and do not believe that an antitrust challenge is likely, or, if such a challenge is made, that it would be successful.

In connection with the Merger, Parent, the General Partner and the Partnership intend to make all other required filings under the federal securities laws, as well as any required filings or applications with Nasdaq.

None of Parent, the General Partner or the Partnership is aware of any other requirement for the filing of information with, or the obtaining of the approval of, governmental authorities in any jurisdiction that is required for the consummation of the Merger.

Financing of the Merger

The total amount of funds necessary for Parent to consummate the Merger and the related transactions, excluding expenses related thereto, is anticipated to be approximately $132.2 million. Parent expects to fund the Merger and related transaction costs with existing cash on hand, cash flow prior to the closing of the Merger, borrowings under the Amended Parent Credit Facility (as defined below), and, if necessary, from $5.0 million in loans from certain members of Parent’s management team, as described below.

Parent and certain of its subsidiaries are party to a $100 million revolving credit facility under the Fourth Amended and Restated Credit and Security Agreement, dated as of January 27, 2020 (as amended to date, the “Existing Credit Agreement”), with Regions Bank, as administrative agent and collateral agent, that matures in 2027. Outstanding borrowings under the revolving credit facility bear interest at adjusted Secured Overnight Financing Rate (“SOFR”) plus an applicable margin. The applicable margin for SOFR borrowings effective July 23, 2024, is 2.50%. Parent may in the future refinance a portion of the amounts borrowed under its revolving credit facility. The collateral for the Existing Credit Agreement includes substantially all personal property and real property of Parent and its subsidiaries (other than certain excluded subsidiaries, such as the Partnership and its subsidiaries), including the equity interests in the Partnership that Parent indirectly owns.

On August 23, 2024, Parent entered into a fee letter and engagement letter (the “Regions Engagement Letter”) with Regions Bank and Regions Capital Markets with respect to a proposed amendment to the Existing Credit Agreement (as so amended, the “Amended Parent Credit Facility”) to, among other things, (i) increase the revolving commitments up to $180 million, (ii) add a term loan of up to $20 million (the “Term Loan”), with (x) pricing of adjusted SOFR plus 6% per annum, (y) scheduled amortization payments and (z) mandatory prepayments with distributions from the Partnership, and (iii) add Wells Fargo, National Association

 

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(“Wells Fargo Lending”) as a lender under the Existing Credit Agreement. In order to facilitate the proposed amendment, Mr. Martin may be requested by the lenders thereunder to guarantee all or some portion of the Term Loan, which guaranty would be secured by the equity interests of the Partnership (which lien would be subordinate and junior to the existing first priority lien of Regions Bank in such equity interests under the Existing Credit Agreement) until the Term Loan is repaid and the guaranty is terminated.

On October 25, 2024, Parent entered into a fee letter and commitment letter (the “Regions Commitment Letter”) with Regions Bank and Regions Capital Markets, whereby Regions Bank committed to provide the $200 million credit facility contemplated by the Regions Engagement Letter and the Regions Commitment Letter, subject to customary conditions to closing, including, among others, (i) Wells Fargo Lending assuming and funding $100 million of such $200 million commitment and (ii) the closing of the Amended Parent Credit Facility occurring on or before December 31, 2024. On October 24, 2024, Regions Bank received a commitment letter from Wells Fargo Lending with respect to $100 million of the Amended Parent Credit Facility.

In addition, if necessary after applying existing cash on hand, cash flow prior to the closing of the Merger and borrowings under the Amended Parent Credit Facility, certain officers and/or directors of Parent who are also officers and/or directors of the Partnership, including Mr. Martin and Mr. Bondurant, would be expected to loan up to $5.0 million to Parent on an unsecured basis, with a maximum interest rate of 6.5%, a maturity date at least one year after the maturity date of the Term Loan, covenants and events of default no more restrictive than the Existing Credit Agreement, and otherwise on terms and conditions approved by one or more directors of Parent that is not a lender of such loans. Such management loans, if necessary, are expected to be made to Parent from the Merger Consideration that the applicable officers and/or directors would otherwise receive in the Merger as a result of their ownership of Common Units or restricted units, phantom units or phantom unit appreciation rights under the Partnership Restricted Unit Plan or Partnership Phantom Unit Plan.

Although Parent has entered into the Regions Commitment Letter, there is still a risk that the debt financing under the Amended Parent Credit Facility may not be funded when required. As of the date of this proxy statement, no alternative financing arrangements or alternative financing plans have been made in the event the debt financing under the Amended Parent Credit Facility is not available as anticipated. Additionally, although the Amended Parent Credit Facility is fully committed and not subject to syndication risk, there is no assurance that the conditions to closing for the Amended Parent Credit Facility will be satisfied. In the event that Parent fails to consummate the Merger within five business days after receiving a closing notice from the Partnership or the Conflicts Committee as contemplated by Merger Agreement, and the Partnership or the Conflicts Committee terminates the Merger Agreement, Parent would be required to pay the Partnership a termination fee of $6.0 million, subject to certain terms and conditions. Parent has no alternative financing plans in the event the expected borrowings are not consummated.

Parent expects to repay borrowings in connection with the Merger over time with cash from operations and cash distributions from certain subsidiaries. No borrowings under the Partnership’s credit facility, or any other funds of the Partnership, will be used in connection with the financing of the Merger or the payment of any of Parent’s transaction costs.

The foregoing summary of the Regions Commitment Letter is qualified in its entirety by the full text of the Regions Commitment Letter, which is filed as Exhibit (b)(1) to the Schedule 13E-3 and incorporated herein by reference.

Fees and Expenses

Generally, all fees and expenses incurred in connection with the transactions contemplated by the Merger Agreement will be the obligation of the respective party incurring such fees and expenses, except (i) that Parent and the Partnership will each pay for 50% of the costs of printing and mailing of this proxy statement and Schedule 13E-3 and any amendments or supplements hereto or thereto, (ii) Parent and the Partnership shall each

 

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also pay 50% of any filing fees and other costs and expenses relating to the preparation and filing of any filing with a governmental authority required in connection with the Merger Agreement and the transactions contemplated by the Merger Agreement, including any filings required under antitrust laws, (iii) Parent will pay all costs, fees and expenses of the Paying Agent, (iv) the Partnership will pay the Partnership Termination Fee and Parent Expense Reimbursement, if applicable, as discussed below under “Proposal No. 1 The Merger Proposal—Effect of Termination; Remedies” and (v) Parent will pay the Parent Termination Fee and Partnership Expense Reimbursement, if applicable, as discussed above under “—Effect of Termination; Remedies.”

Total fees and expenses incurred or to be incurred by the Partnership and Parent in connection with the Merger are estimated at this time to be as follows:

 

		Amount to be Paid (in millions)
Financial advisory fee and expenses		$	[	●]
Legal, accounting and other professional fees		$	[	●]
Proxy solicitation costs		$	[	●]
Printing and mailing costs and filing fees		$	[	●]
Paying Agent fees and expenses		$	[	●]
Miscellaneous fees and expenses		$	[	●]
Total		$	[	●]

Certain Legal Matters

General

In the Merger Agreement, the parties have agreed to cooperate with each other to make all necessary, proper or advisable filings with any applicable governmental authorities and to obtain promptly all governmental approvals and consents necessary to consummate the Merger, subject to certain exceptions and limitations.

Delisting and Deregistration of Common Units

If the Merger is completed, the Common Units will cease to be listed on the Nasdaq and will be deregistered under the Exchange Act.

No Appraisal Rights

Holders of the Common Units are not entitled to dissenters’ rights of appraisal under the Partnership Agreement, the Merger Agreement or applicable Delaware law. The foregoing discussion is not a complete statement of law pertaining to appraisal rights under Delaware law and is qualified in its entirety by references to Delaware law, other applicable law, the Partnership Agreement and the Merger Agreement.

Accounting Treatment of the Merger

The Merger will be accounted for in accordance with ASC 810, Consolidation. Because Parent controls Partnership both before and after the Merger, the changes in Parent’s ownership interest in the Partnership resulting from the Merger will be accounted for as an equity transaction, and no gain or loss will be recognized in Parent’s consolidated income statement. The Partnership’s net assets will remain at historical cost. Additionally, the tax effects of the Merger are reported as adjustments to other assets, deferred income taxes and additional paid-in capital consistent with ASC 740, Income Taxes.

Tax Consequence of the Merger to Unitholders

Material U.S. Federal Income Tax Consequences of the Merger

The following is a discussion of the material U.S. federal income tax consequences of the Merger that may be relevant to U.S. Unitholders (as defined below). This discussion is based upon current provisions of the Code,

 

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existing and proposed Treasury regulations promulgated under the Code (the “Treasury Regulations”) and current administrative rulings and court decisions, all as in effect on the date of this proxy statement, and all of which are subject to change, possibly with retroactive effect, or are subject to differing interpretations. Changes in these authorities may cause the tax consequences to vary substantially from the consequences described below.

This discussion does not purport to be a complete discussion of all U.S. federal income tax consequences of the Merger and does not describe any tax consequences arising under the alternative minimum tax, U.S. federal estate or gift tax laws, any state, local or non-U.S. tax laws, or under any U.S. federal laws other than those pertaining to income taxes. Moreover, the discussion focuses on Unitholders who are individual citizens or residents of the United States (for U.S. federal income tax purposes) and has only limited application to corporations, estates, trusts, entities treated as partnerships for U.S. federal income tax purposes, nonresident aliens, certain former citizens, or other unitholders subject to specialized tax treatment, such as tax-exempt institutions, employee benefit plans, foreign persons (including controlled foreign corporations and passive foreign investment companies), banks and other financial institutions, insurance companies, real estate investment trusts (REITs), individual retirement accounts (IRAs), regulated investment companies (RICs) and mutual funds, dealers in securities, traders in securities that elect mark-to-market, and corporations that accumulate earnings to avoid U.S. federal income tax, persons who hold Common Units as part of a hedge, straddle, conversion or other risk reduction transaction, persons who act as acquired Common Units by gift, or directors and employees of the Partnership that received (or are deemed to receive) Common Units as compensation or through the exercise (or deemed exercise) of options, unit appreciation rights, phantom units or restricted units granted under a Partnership equity incentive plan. Also, the discussion is limited to U.S. Unitholders that hold their Common Units as “capital assets” within the meaning of Section 1221 of the Code at the time of the Merger (generally, property held for investment).

For purposes of this discussion, the term “U.S. Unitholder” means a beneficial owner of Common Units of the Partnership that is for U.S. federal income tax purposes (1) an individual citizen or resident of the United States; (2) a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia; (3) a trust if (i) a U.S. court is able to exercise primary supervision over the trust’s administration and one or more United States persons (as defined in the Code) are authorized to control all substantial decisions of the trust or (ii) the trust has a valid election in effect under applicable Treasury Regulations to be treated as a United States person for U.S. federal income tax purposes; or (4) an estate, the income of which is subject to U.S. federal income tax regardless of its source.

The Partnership has not sought a ruling from the IRS with respect to any of the tax consequences discussed below, and the IRS would not be precluded from taking positions contrary to those described herein. As a result, no assurance can be given that the IRS will agree with all of the tax characterizations and the tax consequences described below. Moreover, no assurance can be given that the tax characterizations and the tax consequences contained herein with respect to tax matters would be sustained by a court if contested by the IRS. Furthermore, the tax treatment of the Merger may be significantly modified by future legislative or administrative changes or court decisions. Any modifications may or may not be retroactively applied.

Accordingly, the Partnership strongly urges each Unitholder to consult with, and depend upon, such Unitholder’s own tax advisor in analyzing the Merger’s U.S. federal, state, local and foreign tax consequences particular to the Unitholder.

Tax Treatment of the Partnership

Section 7704 of the Code provides that publicly traded limited partnerships will, as a general rule, be taxed as corporations. However, an exception, referred to as the “Qualifying Income Exception,” exists with respect to publicly traded limited partnerships of which 90% or more of the gross income for every taxable year consists of “qualifying income.” Qualifying income includes income and gains derived from the exploration,

 

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development, mining or production, transportation, processing, storage, refining and marketing of crude oil, natural gas and refined products thereof or any other mineral or natural resource. Other types of qualifying income include interest (other than from a financial business), dividends, gains from the sale of real property and gains from the sale or other disposition of capital assets held for the production of income that otherwise constitutes qualifying income. The Partnership expects to be treated as a partnership for federal income tax purposes under the Qualifying Income Exception. The remainder of this discussion assumes that the Partnership will be treated as a partnership for U.S. federal income tax purposes before and after the Merger.

Tax Characterization of the Merger

The receipt of cash in exchange for Common Units pursuant to the Merger will generally be a taxable transaction to U.S. Unitholders for U.S. federal income tax purposes. In general, the Merger will be treated as a taxable sale of such Unitholder’s Common Units in exchange for cash received in the Merger and the assumption of such Unitholder’s share of the Partnership’s liabilities.

Amount and Character of Gain or Loss Recognized

Generally, a U.S. Unitholder who receives cash in exchange for Common Units pursuant to the Merger will recognize gain or loss in an amount equal to the difference, if any, between the amount realized and the Unitholder’s adjusted tax basis for the Common Units exchanged. The amount realized equals the sum of (i) the amount of any cash received by the Unitholder and (ii) such Unitholder’s share of the Partnership’s liabilities immediately prior to the Merger. Because the amount realized includes a Unitholder’s share of the Partnership’s liabilities, the gain recognized on the exchange could result in a tax liability in excess of cash received from the exchange. A Unitholder’s adjusted tax basis for Common Units depends on many factors, including the amount the Unitholder paid for the Common Units, the Unitholder’s share of the Partnership’s liabilities immediately prior to the Merger, distributions from the Partnership to the Unitholder prior to the Merger, the Unitholder’s share of the Partnership’s income and losses prior to the Merger, and other considerations.

Except as noted below, gain or loss recognized by a U.S. Unitholder on the exchange of Common Units in the Merger will generally be taxable as capital gain or loss. However, a portion of this gain, which could be substantial, or in certain cases, loss, will be separately computed and taxed as ordinary income or loss under Section 751 of the Code to the extent attributable to assets giving rise to “unrealized receivables,” including depreciation recapture, or to “inventory items” owned by the Partnership and its subsidiaries. Ordinary income attributable to “unrealized receivables” and “inventory items” may exceed net taxable gain realized upon the exchange of a Unit pursuant to the Merger and may be recognized even if there is a net taxable loss realized on the exchange. Thus, a Unitholder may recognize both ordinary income and a capital loss upon the exchange of Common Units in the Merger. Both ordinary income and capital gain recognized on the exchange of Common Units in the Merger may be subject to the 3.8% Medicare tax in certain circumstances.

Capital gain recognized by an individual on the exchange of Common Units held for more than twelve months as of the Effective Time of the Merger will generally be taxed at the U.S. federal income tax rate applicable to long-term capital gains. Capital losses may offset capital gains and no more than $3,000 of ordinary income, in the case of individuals, and may only be used to offset capital gains, in the case of corporations.

The amount of gain or loss recognized by each U.S. Unitholder in the Merger will vary depending on each such Unitholder’s particular situation, including the adjusted tax basis of the Common Units exchanged by each Unitholder in the Merger, and the amount of any suspended passive losses that may be available to a particular Unitholder to offset a portion of the gain recognized by each Unitholder. Passive losses that were not deductible by a Unitholder in prior taxable periods because they exceeded a Unitholder’s share of the Partnership’s income may be deducted in full upon the Unitholder’s taxable disposition of its entire investment in the Partnership pursuant to the Merger. However, gain recognized by a U.S. Unitholder on the Common Units exchanged in the Merger may not be offset by any other current or carryover losses from other passive activities, including those attributable to other publicly traded limited partnerships.

 

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Each Unitholder is strongly urged to consult such Unitholder’s own tax advisor with respect to the specific tax consequences of the Merger, taking into account such Unitholder’s own particular circumstances.

Partnership Items of Income, Gain, Loss and Deduction for the Taxable Period Ending on the Date of the Merger

U.S. Unitholders will be allocated their share of the Partnership’s items of income, gain, loss and deduction for the taxable period of the Partnership ending on the date of the Merger. These allocations will be made in accordance with the terms of the Partnership Agreement. A U.S. Unitholder will be subject to U.S. federal income tax on any such allocated income and gain, even if such Unitholder does not receive a cash distribution from the Partnership attributable to such allocated income and gain. Any income and gain allocated to a Unitholder will increase the Unitholder’s tax basis in the Common Units held and, therefore, will reduce the gain, or increase the loss, recognized by such Unitholder resulting from the Merger. Any losses or deductions allocated to a Unitholder will decrease the Unitholder’s tax basis in the Common Units held and, therefore, will increase the gain, or reduce the loss, recognized by such Unitholder resulting from the Merger.

 

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PROVISIONS FOR PARTNERSHIP UNAFFILIATED UNITHOLDERS

No provision has been made to grant the Partnership Unaffiliated Unitholders access to the files of the Partnership or the Buyer Filing Parties or to obtain counsel or appraisal services at the expense of the foregoing parties.

 

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IMPORTANT INFORMATION REGARDING THE PARTNERSHIP

Historical Selected Financial Information

The SEC allows the Partnership to “incorporate by reference” information into this proxy statement. This means that the Partnership can disclose important information by referring to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this proxy statement. This proxy statement and the information that the Partnership later files with the SEC may update and supersede the information incorporated by reference. The audited consolidated financial statements of the Partnership for the two years ended December 31, 2023 and 2022 are incorporated herein by reference to the Partnership’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 (the “Partnership 2023 Form 10-K”), originally filed on February 21, 2024.

The following tables present selected consolidated financial and operating information for the Partnership. The Partnership’s summary of consolidated statements of operations presented below for the years ended December 31, 2023 and 2022 and the Partnership’s summary of consolidated balance sheets presented below as of December 31, 2023 and 2022 have been derived from the Partnership’s audited consolidated financial statements, which are included in the Partnership 2023 Form 10-K. the Partnership’s summary of consolidated statements of operations presented below for the nine months ended September 30, 2024 and 2023 and the Partnership’s summary of consolidated balance sheets presented below as of September 30, 2024 have been derived from the Partnership’s financial results for the quarterly period ended September 30, 2024, which are included in the Partnership’s Quarterly Report on Form 10-Q filed with the SEC on October 21, 2024. You should read the following data in conjunction with the consolidated financial statements and the related notes thereto set forth in the Partnership 2023 Form 10-K and in conjunction with the financial results from the quarter ended September 30, 2024 included in the Partnership’s Quarterly Report on Form 10-Q filed with the SEC on October 21, 2024, each of which is incorporated by reference into this proxy statement. See “Where You Can Find More Information.”

The Partnership’s historical results do not necessarily indicate results expected for any future periods. The selected consolidated financial and operating information below should be read in conjunction with, and is qualified in its entirety by reference to, the Partnership’s audited consolidated financial statements for the two years ended December 31, 2023 and 2022 and unaudited consolidated financial statements for the nine months ended September 30, 2024 and the related notes and other financial information, which are also incorporated into this proxy statement by reference. See “Where You Can Find More Information.”

Summary Consolidated Balance Sheets

 

		September 30, 2024				September 30, 2023				December 31, 2023				December 31, 2022
		(in thousands, except per share data)
Cash and cash equivalents		$	56			$	54			$	54			$	45
Total current assets		$	148,812			$	111,947			$	114,313			$	211,127
Total assets		$	554,757			$	507,901			$	509,375			$	598,851
Total current liabilities		$	94,869			$	80,975			$	100,564			$	110,925
Total liabilities		$	616,099			$	572,880			$	573,999			$	658,296
Total partners’ capital		$	(61,342	)		$	(64,979	)		$	(64,624	)		$	(59,445	)
Total liabilities and partners’ capital		$	554,757			$	507,901			$	509,375			$	598,851

 

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Summary Consolidated Statements of Operations

 

		Nine Months Ended September 30, 2024				Nine Months Ended September 30, 2023				December 31, 2023				December 31, 2022
		(in thousands, except per share data)
Total revenue		$	536,295			$	616,862			$	797,963			$	1,018,878
Operating income		$	50,473			$	49,538			$	66,724			$	51,263
Net income (loss)		$	3,734			$	(5,066	)		$	(4,549	)		$	(10,334	)
Limited partners’ interest in net income (loss)		$	3,645			$	(4,949	)		$	(4,444	)		$	(10,087	)
Income from operations per common unit – basic and diluted		$	1.30			$	1.28			$	1.72			$	1.32
Net income (loss) per common unit – basic and diluted		$	0.10			$	(0.13	)		$	(0.12	)		$	(0.27	)

Book Value Per Common Unit

As of September 30, 2024, the book value per Common Unit was negative $1.57 (calculated based on 39,001,086 Common Units outstanding as of such date).

Market Price and Cash Distribution Information

Common Units

The Common Units are traded on the Nasdaq under the ticker symbol “MMLP.” The following table sets forth, for the periods indicated, the intraday high and low sales prices per Common Unit, as well as information concerning quarterly cash distributions declared and paid with respect to each period.

 

		Common Units
		Sale Prices								Cash Distributions(1)
		High				Low
Year ended December 31, 2024
Fourth Quarter(2)		$	4.00			$	3.98			$	—	(3)
Third Quarter		$	4.13			$	3.15			$	0.005
Second Quarter		$	3.42			$	2.36			$	0.005
First Quarter		$	2.72			$	2.04			$	0.005
Year ended December 31, 2023
Fourth Quarter		$	2.79			$	2.27			$	0.005
Third Quarter		$	3.30			$	1.98			$	0.005
Second Quarter		$	2.58			$	1.95			$	0.005
First Quarter		$	3.35			$	2.39			$	0.005
Year ended December 31, 2022
Fourth Quarter		$	3.75			$	2.57			$	0.005
Third Quarter		$	4.75			$	3.10			$	0.005
Second Quarter		$	5.98			$	3.55			$	0.005
First Quarter		$	4.75			$	2.68			$	0.005

 

(1)	Represents cash distribution per Common Unit declared with respect to the quarter presented and paid in the following quarter.

(2)	Through October 24, 2024.

(3)	Pursuant to the Merger Agreement, until the effective time of the Merger, if permitted by applicable law and the Partnership Agreement, the General Partner will determine and declare, and cause the Partnership to pay

 

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regular quarterly cash dividends of $0.005 per Common Unit to the holders of the Common Units consistent with past practice, including with respect to the timing of record dates and payment dates; provided that, subject to applicable law, in no event shall the regular quarterly cash distributions declared or paid by the Partnership to the holders of the Common Units be less than $0.005 per Common Unit without the separate determination and approval of the Conflicts Committee.

The last reported sale price of Common Units on the Nasdaq on October 2, 2024, the last trading day before the Partnership entered into the Merger Agreement, was $3.79 per unit.

The last reported sale price of Common Units on the Nasdaq on October 24, 2024, the last trading day before the filing of this proxy statement, was $3.99 per unit.

The payment of principal and interest on the Partnership’s indebtedness reduces the cash available for distribution to Unitholders. In addition, its revolving credit facility and the indenture governing its secured notes severely restrict its ability to make distributions until its total leverage ratio (as defined in the applicable debt instruments) is less than 3.75 to 1.00 (under the indenture) and 4.50 to 1.00 (under our credit facility), pro forma first lien leverage is less than 1.00 to 1.00, and its pro forma liquidity is greater than or equal to 35% of the commitments under the credit facility.

 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This proxy statement and the other documents referred to or incorporated by reference into this proxy statement include certain forward-looking statements regarding, among other things, expectations as to the completion and timing of the Merger, other information relating to the Merger and the effects of the Merger, the Partnership’s projected financial information as well as other information about the Partnership’s plans, strategies and prospects, both business and financial.

Forward-looking statements give the Partnership’s current expectations, and can be identified by the fact that they do not relate strictly to historical or current facts. When used in this proxy statement, the words “could,” “may,” “should,” “will,” “seek,” “believe,” “expect,” “anticipate,” “intend,” “continue,” “estimate,” “plan,” “target,” “predict,” “project,” “attempt,” “is scheduled,” “likely,” “forecast,” the negatives thereof and other similar expressions are used to identify forward-looking statements, although not all forward-looking statements contain such identifying words. These forward-looking statements are based on the Partnership’s current expectations and assumptions about future events and are based on currently available information as to the outcome and timing of future events. You are cautioned not to place undue reliance on any forward-looking statements. Although the Partnership believes that the expectations reflected in such forward-looking statements are based on reasonable assumptions, such statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected. Further, the Partnership’s ability to consummate the proposed Merger may be influenced by many factors that are difficult to predict, involve uncertainties that may materially affect actual results and that are often beyond the control of the Partnership. These factors include, but are not limited to, the occurrence of any event, change or other circumstance that could give rise to termination of the Merger Agreement, the failure of the closing conditions, and delays in the consummation of the Merger; the timing, receipt and terms and conditions of any required governmental and regulatory approvals for the Merger; the possibility that the Unitholders may not approve the Merger Agreement; the risk that Parent may not be able to obtain the debt financing required to fund the Merger Consideration; the impact of the announcement of the proposed Merger on relationships with third parties, including commercial counterparties, employees and competitors, and risks associated with the loss and ongoing replacement of key personnel; risks related to disruption of management’s attention from the Partnership’s ongoing business operations due to the Merger; large customer defaults; interest rates; political developments; operating hazards, natural disasters, weather-related delays, casualty losses and other matters beyond the Partnership’s control; uncertainty regarding the Partnership’s future operating results; changes in capital requirements or in execution of planned capital projects; changes in tax status of the Partnership; effects of existing and future laws and governmental regulations; and the effects of future litigation, including litigation relating to the Merger. Additional factors that could cause actual results to differ materially from the Partnership’s expectations and may adversely affect the Partnership’s business and results of operations are disclosed in “Item 1A. Risk Factors” in the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 21, 2024, as updated and supplemented by subsequent filings with the SEC. The forward looking statements speak only as of the date made, and, other than as may be required by law, the Partnership undertakes no obligation to update or revise any forward looking statements, whether as a result of new information, future events or otherwise.

 

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PARTIES TO THE MERGER

MARTIN MIDSTREAM PARTNERS L.P.

4200 B Stone Road

Kilgore, Texas 75662

Phone: (903) 983-6200

The Partnership is a publicly traded limited partnership with a diverse set of operations focused primarily in the Gulf Coast region of the United States. The Partnership’s primary business lines include: (1) terminalling, processing, and storage services for petroleum products and by-products including the refining of naphthenic crude oil; (2) land and marine transportation services for petroleum products and by-products, including the refining of naphthenic crude oil, chemicals, and specialty products; (3) sulfur and sulfur-based products processing, manufacturing, marketing and distribution; and (4) marketing, distribution, and transportation services for natural gas liquids and blending and packaging services for specialty lubricants and grease.

The Partnership’s Common Units are listed on the Nasdaq under the ticker symbol “MMLP.” On [●], the most recent practicable date before the printing of this proxy statement, [●] Common Units were issued and outstanding.

MARTIN MIDSTREAM GP LLC

4200 B Stone Road

Kilgore, Texas 75662

Phone: (903) 983-6200

The General Partner is the general partner of the Partnership. The GP Board and executive officers manage the Partnership. The General Partner is a direct wholly owned subsidiary of MMGP Holdings LLC.

MARTIN RESOURCE MANAGEMENT CORPORATION

4200 B Stone Road

Kilgore, Texas 75662

Phone: (903) 983-6200

Parent is a privately held company incorporated in 1951 and is based in Kilgore, Texas, with over 1,500 employees globally. Parent is engaged in the following principal business activities: (i) distributing asphalt, marine fuel and other liquids; (ii) providing shore-based marine services in Texas, Louisiana, Mississippi and Alabama; (iii) operating a crude oil gathering business in Stephens, Arkansas; (iv) providing crude oil gathering and marketing services of base oils, asphalt, and distillate products in Smackover, Arkansas; (v) providing crude oil marketing and transportation from the well head to the end market; (vi) operating an environmental consulting company; (vii) operating a butane optimization business; (viii) supplying employees and services for the operation of the Partnership’s business; and (ix) operating, solely for the Partnership’s account, the asphalt facilities in each of Hondo, South Houston and Port Neches, Texas, and Omaha, Nebraska .

MRMC Merger Sub LLC

4200 B Stone Road

Kilgore, Texas 75662

Phone: (903) 983-6200

MRMC Merger Sub LLC, a Delaware limited liability company (“Merger Sub”), is a direct wholly owned subsidiary of Parent formed solely for the purpose of facilitating the Merger. Merger Sub has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the transactions contemplated by the Merger Agreement. By operation of the Merger, Merger Sub will be merged with and into the Partnership, with the Partnership surviving the Merger as a wholly owned subsidiary of Parent.

 

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THE PARTNERSHIP SPECIAL MEETING

The Partnership is providing this proxy statement to its Unitholders in connection with the solicitation by the GP Board of proxies to be voted at the Special Meeting, and any adjournment or postponement thereof. This proxy statement is first being mailed to Unitholders on or about [●], 2024 and provides Unitholders with the information they need to know to be able to vote or instruct their vote to be cast at the Special Meeting.

Date, Time and Place of the Special Meeting

The Special Meeting is scheduled to be held at the Partnership’s office located at 4200 B Stone Road, Kilgore, Texas 75662, on [●], 2024, at [●] (local time).

Unitholders as of the Record Date (or their authorized representatives), including Unitholders of record and beneficial owners of Common Units registered in the “street name” of a bank, broker or other nominee, and the Partnership’s invited guests may attend the Special Meeting. If you are a Unitholder of record, please be prepared to provide proper identification, such as a driver’s license. If you hold your Common Units in “street name,” you will need to provide proof of ownership, such as a recent account statement or letter from your broker, bank or other nominee, along with proper identification.

Matters to be Considered at the Special Meeting

At the Special Meeting, Unitholders will be asked to consider and vote on the following proposals:

 

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Merger Proposal. To approve the Merger Agreement, a copy of which is attached as Annex A to this proxy statement, as such agreement may be amended from time to time, and the Merger; and

 

•

Adjournment Proposal. To approve the adjournment of the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are not sufficient votes to approve the Merger Agreement and the Merger, at the time of the Special Meeting.

Approval of the Merger Proposal by the required shareholder vote is a condition to the consummation of the Merger. Approval of the Adjournment Proposal is not a condition to the consummation of the Merger.

Recommendation of the Conflicts Committee

The Conflicts Committee of the GP Board, consisting of three independent directors that satisfy the requirements for membership on the Conflicts Committee that are set forth in the Partnership Agreement and the Conflicts Committee Charter, has unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved (such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including Section 7.9(a) thereof) the Merger Agreement, the Support Agreements, and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) recommended that the GP Board approve the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iv) recommended that the GP Board submit the Merger Agreement and the Merger to a vote of the Unitholders and (v) recommended, and recommended that the GP Board resolve to recommend, approval of the Merger Agreement and the Merger by the Unitholders. Therefore, the Conflicts Committee recommends that you vote “FOR” the Merger Proposal. See “Special Factors—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal—Reasons for the Conflict Committee’s Recommendation.”

 

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Recommendation of the GP Board

The GP Board, after considering the unanimous determination and recommendation of the Conflicts Committee, has unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) authorized and directed that approval of the Merger Agreement and the Merger be submitted to a vote of the Unitholders and (iv) recommended approval of the Merger Agreement and the Merger by the Unitholders. Therefore, the GP Board recommends that you vote “FOR” the Merger Proposal. See “Special Factors— Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal—Reasons for the GP Board’s Recommendation.”

Who Can Vote at the Special Meeting

The Record Date for the Special Meeting is [●], 2024. Only Unitholders of record at the close of business on the Record Date will be entitled to receive notice of and to vote at the Special Meeting or any adjournment or postponement of the meeting unless adjournment shall be for more than 45 days, in which case the GP Board shall set a new Record Date.

As of the close of business on the Record Date, there were [●] Common Units held by Unitholders outstanding and entitled to vote at the Special Meeting. Each holder of the Common Units entitled to vote at the Special Meeting may cast one vote for each Common Unit that such holder owned on the close of business on the Record Date; provided that if at any time any person or group (other than the General Partner or its affiliates) beneficially owns 20% or more of any class of outstanding Common Units, all Common Units owned by such person or group shall not be voted on any matter or considered for determining the presence of a quorum. This loss of voting rights does not apply to (i) any person or group that acquires the Common Units directly from the General Partner and its affiliates and any transferees of that person or group who are notified by the General Partner that they will not lose their voting rights or (ii) to any person or group who acquires the Common Units with the prior approval of the GP Board.

A complete list of Unitholders entitled to vote at the Special Meeting will be available for inspection at the principal place of business of the Partnership during regular business hours for a period of no less than 10 days before the Special Meeting and at the place of the Special Meeting during the meeting.

Quorum

A quorum of Unitholders represented in person or by proxy at the Special Meeting is required to vote on approval of the Merger Agreement and the Merger at the Special Meeting, but not to vote on approval of any adjournment of the meeting. The holders of at least a majority of the issued and outstanding Common Units (including issued and outstanding Common Units deemed owned by the General Partner) must be represented in person or by proxy at the meeting in order to constitute a quorum. Any abstentions and broker non-votes (if any) will be considered to be present at the meeting for purposes of determining whether a quorum is present at the Special Meeting. Pursuant to the Support Agreements entered into between the Partnership and each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin, the Support Parties have agreed to appear at the Special Meeting for quorum purposes and to vote or cause their Common Units to be voted in favor of the Merger and the approval of the Merger Agreement.

Vote Required for Approval

The affirmative vote of holders of at least a majority of the issued and outstanding Common Units, is required to approve the Merger Agreement and the Merger. As of the Record Date, there were [●] Common

 

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Units outstanding and held by Unitholders. Pursuant to the Support Agreements entered into between the Partnership and each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin, the Support Parties have agreed to vote or cause the [●] Common Units held by the Support Parties in the aggregate, representing approximately [●]% of the total issued and outstanding Common Units as of the Record Date, to be voted in favor of the Merger and the adoption of the Merger Agreement. The Support Agreements will not be sufficient to approve the Merger and the Merger Agreement on behalf of the holders of the Common Units, without also obtaining additional votes of other holders of the Common Units.

Accordingly, the affirmative vote of the Unitholders, representing approximately [●]% of the total issued and outstanding Common Units as of the Record Date in addition to the Common Units to be voted by the Support Parties pursuant to the Support Agreements is required to approve the Merger Agreement and the Merger. If a quorum is present at the Special Meeting, the affirmative vote of holders of at least a majority of the issued and outstanding Common Units entitled to vote and be present in person or by proxy at such meeting is required to approve the Adjournment Proposal, if necessary, to solicit additional proxies if there are not sufficient votes to approve the Merger Agreement and the Merger at the time of the Special Meeting; provided that, if a quorum is not present at the Special Meeting, the affirmative vote of holders of at least a majority of the issued and outstanding Common Units entitled to vote at such meeting (including issued and outstanding Common Units deemed owned by the General Partner) represented either in person or by proxy is required to approve the Adjournment Proposal.

Abstentions, failures to vote, or failures to instruct your broker, bank or other nominee to vote, and broker non-votes (if any) will have the same effect as votes “AGAINST” approval of the Merger Proposal.

If a quorum is present, abstentions failures to vote, or failures to instruct your broker, bank or other nominee to vote, and broker non-votes (if any) will have the same effect as votes “AGAINST” the Adjournment Proposal. If a quorum is not present, abstentions will have the same effect as votes “AGAINST” the Adjournment Proposal, but failures to vote, or failures to instruct your broker, bank or other nominee to vote, and broker non-votes (if any) will have no effect on the Adjournment Proposal.

Voting by Directors and Executive Officers of the General Partner

As of the Record Date, the directors and executive officers of the General Partner, as a group, owned and were entitled to vote [●] Common Units, collectively representing [●]% of the Common Units entitled to vote at the Special Meeting.

The Partnership currently expects that all of the directors and executive officers of the General Partner will vote their Common Units “FOR” the Merger Proposal and “FOR” the Adjournment Proposal.

Voting by Buyer Filing Parties

As of the Record Date, the Buyer Filing Parties owned and were entitled to vote [●] Common Units, collectively representing approximately [●]% of the Common Units entitled to vote at the Special Meeting.

Pursuant to the Support Agreements, the Buyer Filing Parties have agreed to vote or cause the [●] Common Units they collectively owned as of the Record Date, or approximately [●]% of the outstanding Common Units as of such date, to be voted in favor of the Merger and the adoption of the Merger Agreement. See “Special Factors—The Support Agreements.”

Voting of Common Units by Holders of Record

If you are entitled to vote at the Special Meeting and hold your Common Units in your own name, you can submit a proxy or vote in person by completing a ballot at the Special Meeting. However, the Partnership

 

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encourages you to submit a proxy before the Special Meeting even if you plan to attend the Special Meeting in order to ensure that your Common Units are voted. A proxy is a legal designation of another person to vote your Common Units on your behalf. If you hold Common Units in your own name, you may submit a proxy for your Common Units by:

 

•

accessing the Internet website specified on the enclosed proxy card and following the instructions provided to you;

 

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calling the toll-free number specified on the enclosed proxy card and following the instructions when prompted; or

 

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filling out, signing and dating the enclosed proxy card and mailing it in the prepaid envelope included with these proxy materials.

When a Unitholder submits a proxy by telephone or through the Internet, such Unitholder’s proxy is recorded immediately. The Partnership encourages its Unitholders to submit their proxies using these methods whenever possible. If you submit a proxy by telephone or the Internet website, please do not return your proxy card by mail unless you wish to change your vote in a manner compliant with the voting guidelines set forth in this proxy statement.

All Common Units represented by each properly executed and valid proxy received before the Special Meeting will be voted in accordance with the instructions given on the proxy. If a Unitholder executes a proxy card without giving instructions, the Common Units represented by that proxy card will be voted as the GP Board recommends (unless you also indicate to vote against the approval of the Merger Agreement). The GP Board recommends that Unitholders vote “FOR” the Merger Proposal and “FOR” the Adjournment Proposal.

Your vote is important. Accordingly, please submit your proxy by telephone, through the Internet or by mail, whether or not you plan to attend the meeting in person. Proxies received by telephone or through the Internet must be received by 11:59 p.m. (local time), on [●], 2024. If the Special Meeting is adjourned to solicit additional votes in favor of the Merger Proposal, the deadline for submitting your proxy may be extended.

Voting of Common Units Held in Street Name

If your Common Units are held in an account at a broker, bank or through another nominee, you must instruct the broker, bank or other nominee on how to vote your Common Units by following the instructions that the broker or other nominee provides to you with these proxy materials. Most brokers offer the ability for Unitholders to submit voting instructions by mail by completing a voting instruction form, by telephone and via the Internet.

Broker non-votes occur when (i) a broker, bank or other nominee has discretionary authority to vote on one or more proposals to be voted on at a meeting of unitholders, but is not permitted to vote on other proposals without instructions from the beneficial owner of the units and (ii) the beneficial owner fails to provide the broker, bank or other nominee with such instructions. Under applicable rules, brokers, banks and other nominees holding units in “street name” do not have discretionary voting authority with respect to any of the Proposals, including the Merger Proposal, and therefore we do not expect there to be any broker non-votes at the Special Meeting. Accordingly, if a beneficial owner of Common Units held in “street name” does not give voting instructions to the broker, bank or other nominee, then (i) those units will not be counted as present in person or by proxy at the Special Meeting and (ii) it will have the same effect as voting “AGAINST” the Merger Proposal and, if a quorum is present at the Special Meeting, the Adjournment Proposal.

If you hold Common Units through a broker, bank or other nominee and wish to vote your Common Units in person at the Special Meeting, you must obtain a legal proxy from your broker, bank or other nominee and present it to the inspector of election with your ballot when you vote at the Special Meeting.

 

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Revocability of Proxies; Changing Your Vote

You may revoke your proxy and/or change your voting instructions at any time before the telephone/Internet deadline or before the polls close at the Special Meeting, as applicable. If you are a Unitholder of record, you can do this by:

 

•

sending a written notice, no later than the telephone/internet deadline, to Martin Midstream Partners L.P. at the Partnership’s office located at 4200 B Stone Road, Kilgore, Texas 75662, Attention: Secretary, that bears a date later than the date of your proxy and is received prior to the Special Meeting and states that you revoke your proxy;

 

•

submitting a valid, later-dated proxy by mail that is received prior to the Special Meeting;

 

•

submitting a valid, later-dated proxy by telephone or Internet before the telephone/Internet deadline; or

 

•

attending the Special Meeting and voting by ballot in person (your attendance at the Special Meeting will not, by itself, revoke any proxy that you have previously given).

If you hold your Common Units through a broker or other nominee, you must follow the directions you receive from your broker or other nominee in order to revoke your proxy or change your voting instructions.

Solicitation of Proxies

This proxy statement is furnished in connection with the solicitation of proxies by the GP Board to be voted at the Special Meeting. The Partnership has engaged Innisfree M&A Incorporated to assist in the solicitation of proxies for the meeting and the Partnership will pay Innisfree M&A Incorporated a fee of up to $30,000, plus certain expenses and other costs for these and other advisory services. The Partnership has also agreed to indemnify Innisfree M&A Incorporated, its subsidiaries and their respective directors, officers, employees and agents against certain claims, liabilities, losses, damages and expenses. In addition, the Partnership may reimburse brokerage firms and other persons representing beneficial owners of Common Units for their reasonable expenses in forwarding solicitation materials to such beneficial owners. Proxies may also be solicited by certain of the General Partner’s directors, officers and employees by telephone, electronic mail, letter, facsimile or in person, but no additional compensation will be paid to them.

Forms of proxies and proxy materials may also be distributed through brokers, banks and other nominees to the beneficial owners of Common Units, in which case these parties will be reimbursed for their reasonable out-of-pocket expenses.

Adjournments

Adjournments may be made for the purpose of, among other things, soliciting additional proxies. If a quorum is present at the Special Meeting, the Adjournment Proposal requires the affirmative vote of holders of at least a majority of the issued and outstanding Common Units entitled to vote and be present in person or by proxy at such meeting; provided that, if a quorum is not present at the Special Meeting, the affirmative vote of holders of at least a majority of the issued and outstanding Common Units entitled to vote at such meeting (including issued and outstanding Common Units deemed owned by the General Partner) represented either in person or by proxy is required to approve the Adjournment Proposal. The Partnership is not required to notify holders of the Common Units of any adjournment of 45 days or less if the time and place of the adjourned meeting are announced at the meeting at which the adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At any adjourned meeting, the Partnership may transact any business that it might have transacted at the original Special Meeting, provided that a quorum is present at such adjourned meeting. Proxies submitted by holders of the Common Units for use at the original Special Meeting will be used at any adjournment or postponement of the meeting. References to the Special Meeting in this proxy statement are to such Special Meeting as adjourned or postponed.

 

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Assistance

If you need assistance in completing your proxy card or have questions regarding the Special Meeting, please contact Innisfree M&A Incorporated toll-free at (877) 750-8334.

 

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PROPOSAL NO. 1. THE MERGER PROPOSAL

The Merger Proposal

Unitholders are being asked to approve the Merger Agreement, a copy of which is attached as Annex A to this proxy statement, as such agreement may be amended from time to time, and the Merger. For a detailed discussion of the Merger Agreement and the Merger, see the remainder of this section. As discussed in the section entitled “Special Factors—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal,” the GP Board and the Conflicts Committee determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and in the best interests of the Partnership and the Partnership Unaffiliated Unitholders.

If you sign your proxy card and return it without indicating how you would like to vote your Common Units with respect to the Merger Proposal, your proxy will be voted as the GP Board recommends, which is “FOR” the Merger Proposal.

The Merger Proposal requires the affirmative vote of holders of at least a majority of the issued and outstanding Common Units. Abstentions, failures to vote, or failures to instruct your broker, bank or other nominee to vote, and broker non-votes (if any) will have the same effect as votes “AGAINST” approval of the Merger Proposal.

The GP Board unanimously recommends that Unitholders vote “FOR” the Merger Proposal.

The Merger Agreement

The following describes the material provisions of the Merger Agreement, a copy of which is attached as Annex A to this proxy statement and incorporated by reference herein. The description in this section and elsewhere in this proxy statement is qualified in its entirety by reference to the Merger Agreement. This summary does not purport to be complete and may not contain all of the information about the Merger Agreement that is important to you. Parent and the Partnership encourage you to read the Merger Agreement carefully and in its entirety before making any decisions regarding the Merger, as it is the legal document governing the Merger.

The Merger Agreement and this summary of its terms have been included to provide you with information regarding the terms of the Merger Agreement. Factual disclosures about Parent, the Partnership or any of their respective subsidiaries or affiliates contained in this proxy statement or the Partnership’s public reports filed with the SEC may supplement, update or modify the factual disclosures about Parent, the Partnership or their respective subsidiaries or affiliates contained in the Merger Agreement and described in this summary. The representations, warranties and covenants made in the Merger Agreement by the Partnership, the General Partner, Parent or Merger Sub were qualified and subject to important limitations agreed to by Parent, the Partnership and their respective subsidiaries in connection with negotiating the terms of the Merger Agreement. In particular, in your review of the representations and warranties contained in the Merger Agreement and described in this summary, it is important to bear in mind that the representations and warranties were negotiated with the principal purpose of allocating risk between the parties to the Merger Agreement, rather than establishing matters as facts. The representations and warranties may also be subject to a contractual standard of materiality different from those generally applicable to Common Unitholders and reports and documents filed with the SEC were made only as of the date of the Merger Agreement or such other dates as may be specified in the Merger Agreement and are subject to more recent developments. Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. The Merger Agreement is incorporated by reference herein only to provide Common Unitholders with information regarding the terms of the Merger Agreement, and not to provide Common Unitholders with any other factual information regarding Parent, the Partnership or their respective subsidiaries or affiliates. Additionally, these representations and

 

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warranties should not be read alone, but instead should be read only in conjunction with the information provided elsewhere in this proxy statement, in the documents incorporated by reference into this proxy statement, or contained in, or incorporated by reference into, the filings that the Partnership makes with the SEC, which may include information that updates, modifies or qualifies the information set forth in the representations and warranties.

Unless otherwise expressly stated, for the purposes of the Merger Agreement, references to an affiliate or subsidiary of Parent do not include the Partnership, the General Partner or their subsidiaries, and references to an affiliate of the Partnership or the General Partner do not include Parent and its subsidiaries (other than the Partnership, the General Partner and their subsidiaries).

The Merger

Pursuant to the Merger Agreement, Merger Sub, a wholly owned subsidiary of Parent, will merge with and into the Partnership, with the Partnership surviving the Merger and continuing to exist as a Delaware limited partnership, and each Public Common Unit will be converted into the right to receive $4.02 in cash, without interest. Following the consummation of the Merger, Parent will directly own all of the limited partner interests of the Partnership and will indirectly own all of the General Partner Interest of the Partnership.

At the Effective Time, (i) the limited liability company interests of Merger Sub issued and outstanding immediately prior to the Effective Time will be cancelled and cease to exist, and no consideration will be delivered in respect thereof, (ii) the General Partner Interest of the Partnership and the Common Units held by Parent or its subsidiaries, as applicable, in each case that are issued and outstanding immediately prior to the Effective Time, will be unaffected by the Merger and will remain issued and outstanding, and no consideration will be delivered in respect thereof and (iii) the books and records of the Partnership will be revised to reflect (A) the cancellation and extinguishment of all Common Units that were converted into the right to receive the Merger Consideration, (B) that, immediately following the Effective Time, Parent or its subsidiaries will be the only holders of the Common Units and (C)  that the existence of the Partnership will continue without dissolution.

Effective Time; Closing

The Effective Time will occur at such time as the General Partner causes a certificate of merger to be duly filed with the Secretary of State of the State of Delaware or at such later date or time as may be agreed by the Partnership and Parent in writing and specified in the certificate of merger.

The closing of the Merger will take place on the fifth business day after the satisfaction or waiver of the conditions set forth in the Merger Agreement (other than conditions that by their nature are to be satisfied at the closing but subject to the satisfaction or waiver of those conditions), or at such other date as the Partnership and Parent may agree.

Conditions to Completion of the Merger

The Partnership, the General Partner, Parent and Merger Sub may not complete the Merger unless each of the following conditions is satisfied or waived:

 

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the Partnership Unitholder Approval (as defined below) has been obtained;

 

•

the absence of any legal restraint or prohibition enjoining or otherwise prohibiting the consummation of the Merger or making the consummation of the Merger illegal;

 

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the termination or expiration of any waiting period applicable to the transactions contemplated by the Merger Agreement under any applicable antitrust law;

 

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•

the obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction or waiver of the following additional conditions:

 

•

the representations and warranties in the Merger Agreement of the Partnership and the General Partner contained in Section 4.2(a) (Authority; Noncontravention) and Section 4.6 (Absence of Certain Changes or Events) of the Merger Agreement will be true and correct in all respects, both as of the date of the Merger Agreement and as of the closing date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date);

 

•

the representations and warranties of the Partnership and the General Partner contained in Section 4.3(a) (Capitalization) of the Merger Agreement will be true and correct in all respects, other than immaterial misstatements or omissions, both as of the date of the Merger Agreement and as of the closing date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date);

 

•

all other representations and warranties of the Partnership and the General Partner set forth in the Merger Agreement will be true and correct, both as of the date of the Merger Agreement and as of the closing date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations or warranties to be so true and correct (without giving effect to any limitations as to “materiality” or material adverse effects with respect to the Partnership set forth in any individual representation or warranty, other than in Section 4.5 (Partnership SEC Documents; Undisclosed Liabilities; Internal Controls), Section 4.9 (Information Supplied) and with respect to references to material contracts of the Partnership) does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect with respect to the Partnership;

 

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the Partnership and the General Partner will have performed in all material respects all covenants and obligations required to be performed by each of them under the Merger Agreement; and

 

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the receipt by Parent of an officer’s certificate signed on behalf of the Partnership and the General Partner by an executive officer of the General Partner certifying that the four preceding conditions have been satisfied.

 

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The obligation of the Partnership to effect the Merger is subject to the satisfaction or waiver of the following additional conditions:

 

•

the representations and warranties of Parent and Merger Sub contained in Section 5.4(a) (Authority; Noncontravention) of the Merger Agreement will be true and correct in all respects, both as of the date of the Merger Agreement and as of the closing date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date);

 

•

all other representations and warranties of Parent and Merger Sub set forth in the Merger Agreement will be true and correct, both as of the date of the Merger Agreement and as of the closing date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations or warranties to be so true and correct (without giving effect to any limitations as to materiality or material adverse effects with respect to the Partnership set forth in any individual representation or warranty) does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect with respect to Parent;

 

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Parent and Merger Sub having performed in all material respects all covenants and obligations required to be performed by each of them under the Merger Agreement; and

 

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the receipt by the Partnership of an officer’s certificate signed on behalf of Parent by an executive officer of Parent certifying that the three preceding conditions have been satisfied.

 

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For purposes of the Merger Agreement, the term (1) “Partnership Material Adverse Effect” means (x) a material adverse effect on or a material adverse change in the business, financial condition or results of operations, of the Partnership and its subsidiaries taken as a whole or (y) the prevention or material delay or impairment in the ability of the General Partner or the Partnership to consummate the Merger and the other transactions contemplated by the Merger Agreement on or before the Outside Date; provided, however, that “material adverse effect” does not include the following: (a) circumstances affecting the industry or market in which the Partnership and its subsidiaries operate, including any changes in the prices of oil, natural gas, sulphur, petroleum by-products, propane, natural gas liquids or other commodities, (b) any general market, economic, financial, capital markets, or political conditions, or outbreak, or continuation of hostilities or war, military actions or the escalation thereof, sabotage or terrorism, in the United States or elsewhere, (c) changes in law applicable to the Partnership or any of its affiliates or in accounting regulations or principles or the interpretation thereof, (d) weather conditions, earthquakes, hurricanes, floods, or other natural disasters, (e) cyberterrorism, hacking, ransomware or any other electronic attack, sabotage, pandemics (including COVID-19) or epidemics, (f) any failure of the Partnership or its subsidiaries to meet any internal or published projections, estimates or expectations of such entity’s revenue, earnings or other financial performance or results of operations (it being understood in each case, that the facts or occurrences giving rise or contributing to such failure that are not otherwise excluded from the definition of a “material adverse effect” may be taken into account), (g) any changes in the market price or trading volume of the Common Units (it being understood that the facts or occurrences giving rise or contributing to such change that are not otherwise excluded from the definition of a “material adverse effect” may be taken into account), (h) any changes, conditions, circumstances, effects, events, developments or occurrences to which Parent has expressly consented or expressly waived or which resulted from any Parent Directive, or (i) the announcement or pendency of the Merger Agreement or the matters contemplated hereby or the compliance by the Partnership with the provisions of the Merger Agreement, including any disruption of customer or supplier relationships, or the commencement of any Proceeding by any current or former holder of any Common Units of the Partnership or its subsidiaries; provided, however, that, the exception set forth in this clause (i) will not apply in connection with any representation or warranty set forth in Section 4.2 (Authority; Noncontravention) or Section 4.4 (Government Approvals), or the condition in Section 7.2(a) (Conditions to Obligations of Parent and Merger Sub to Effect the Merger) insofar as it relates to any such representation or warranty; and provided, further, that, in the case of clause (a), (b), (c), (d), (e) or (f) the impact on the Partnership is not disproportionately adverse as compared to others in the industry referred to in clause (a) of this definition generally and (2) “Parent Material Adverse Effect” means the prevention or material impairment or delay in the ability of Parent or Merger Sub to consummate the Merger and the other transactions contemplated by the Merger Agreement on or before the Outside Date.

No Solicitation by the General Partner or the Partnership of Alternative Proposals

The Merger Agreement provides that the Partnership and the General Partner will, and will use their reasonable best efforts to cause their respective subsidiaries and the respective representatives to, immediately cease and cause to be terminated any discussions or negotiations with any person conducted heretofore with respect to an acquisition proposal, instruct such persons to return or destroy all confidential information previously provided to such parties by or on behalf of the Partnership or its subsidiaries and immediately terminate and prohibit any access by any person (other than Parent and its representatives) to any physical or electronic data room relating to an acquisition proposal. Except under limited circumstances set forth in the Merger Agreement, neither the Partnership nor the General Partner will, and the Partnership will cause its subsidiaries not to, and each of the Partnership and the General Partner will use its reasonable best efforts to, and cause the Partnership’s subsidiaries to use their reasonable best efforts to, cause their respective representatives not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information), or take any other action intended to lead to, any inquiries or the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, an acquisition proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to the Partnership or its subsidiaries in connection with, any acquisition proposal, (iii) enter into any confidentiality agreement, merger agreement, letter of intent, agreement in principle, unit purchase agreement,

 

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asset purchase agreement, unit exchange agreement, option agreement or similar agreement, whether written or oral, with any person (other than Parent or its subsidiaries) relating to an acquisition proposal, (iv) if any acquisition proposal has been made public, fail to publicly reaffirm the recommendations of the GP Board and Conflicts Committee, (v) take any action to make the provisions of any anti-takeover statutes inapplicable to any transactions contemplated by any acquisition proposal or (vi) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the recommendations of the GP Board and Conflicts Committee or publicly recommend the approval or adoption of, or publicly approve or adopt, or propose to publicly recommend, approve or adopt, any acquisition proposal, or fail to recommend against acceptance of any tender offer or exchange offer for Common Units within 10 business days after commencement of such offer, or resolve or agree to take any of the foregoing actions.

General Partner Recommendation and Partnership Adverse Recommendation Change

The Conflicts Committee unanimously, and in good faith, (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved (such approval constituting “Special Approval” for all purposes under the Partnership Agreement, including Section 7.9(a) thereof) the Merger Agreement, the Support Agreements and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) recommended that the GP Board approve the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iv) recommended that the GP Board submit the Merger Agreement and the Merger to a vote of the Unitholders and (v) recommended, and recommended that the GP Board resolve to recommend, approval of the Merger Agreement and the Merger by the Unitholders. For more information regarding the recommendation of the Conflicts Committee and the GP Board, including the obligations of the Conflicts Committee and the GP Board in making such determination under the Partnership Agreement, see “Special Factors—Recommendations of the Conflicts Committee and the GP Board; Reasons for Recommending Approval of the Merger Proposal.”

Following the receipt of the recommendation of the Conflicts Committee (and the approval of the General Partner’s sole member), on October 3, 2024, the GP Board unanimously and in good faith (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, are (A) fair and reasonable to the Partnership and the Partnership Unaffiliated Unitholders and (B) in the best interests of the Partnership and the Partnership Unaffiliated Unitholders, (ii) approved the Merger Agreement, the Support Agreements, the execution, delivery and performance of the Merger Agreement and the Support Agreements and the consummation of the transactions contemplated by the Merger Agreement and the Support Agreements, including the Merger, (iii) authorized and directed that approval of the Merger Agreement and the Merger be submitted to a vote of the Unitholders and (iv) recommended approval of the Merger Agreement and the Merger by the Unitholders.

Except as set forth below, the Merger Agreement provides that the Partnership and the General Partner will not, and will cause their respective subsidiaries and their respective directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives not to, and each of the Partnership and the General Partner will use its reasonable best efforts to, and cause the Partnership’s subsidiaries to use their reasonable best efforts to, cause their representatives not to, directly or indirectly, (i) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent, the recommendations of the GP Board and Conflicts Committee or publicly recommend the approval or adoption of, or publicly approve or adopt, or propose to publicly recommend, approve or adopt, any acquisition proposal, or fail to recommend against acceptance of any tender offer or exchange offer for Common Units within 10 business days after commencement of such offer, or resolve or agree to take any of the foregoing actions, or (ii) fail to include the recommendations of the GP Board and Conflicts Committee in this proxy

 

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statement. The Merger Agreement also provides that the Partnership (acting through the GP Board or the Conflicts Committee or otherwise) will not, directly or indirectly, if any acquisition proposal has been made public, fail to publicly reaffirm recommendations of the GP Board and Conflicts Committee. The Partnership and the General Partner and any of their subsidiaries taking any of the actions described above is referred to as a “Partnership Adverse Recommendation Change.”

Subject to the conditions described below, the GP Board or the Conflicts Committee may, at any time prior to obtaining the Partnership Unitholder Approval, make a Partnership Adverse Recommendation Change if the GP Board (upon the recommendation of the Conflicts Committee) or the Conflicts Committee determines in good faith (after consultation with outside legal counsel) (i) that (A) an acquisition proposal constitutes a Superior Proposal (as defined in the Merger Agreement), or (B) an Intervening Event (as defined in the Merger Agreement) has occurred, and (ii) that the failure to take such action would be inconsistent with (a)(1) with respect to the GP Board, its duties to the Partnership and the Unitholders under applicable law, as modified by the Partnership Agreement, or (a)(2) with respect to the Conflicts Committee, its duties to the Partnership and the Partnership Unaffiliated Unitholders under applicable law, as modified by the Partnership Agreement. The GP Board (upon the recommendation of the GP Conflicts Committee) or the Conflicts Committee may not effect a Partnership Adverse Recommendation Change in this manner unless (i) the GP Board or the Conflicts Committee, as the case may be, has provided prior written notice to Parent specifying in reasonable detail the reasons for such action at least five calendar days in advance of its intention to take such action with respect to a Partnership Adverse Recommendation Change (including a description of the identity of the Person making the Superior Proposal, the material terms and conditions of such Superior Proposal and providing complete copies of any written proposal or offer (including proposed agreements) received by the Partnership, the General Partner, and/or the Conflicts Committee), unless at the time such notice is otherwise required to be given there are fewer than five calendar days prior to the expected date of the Partnership Unitholder Meeting, in which case such notice will be provided as far in advance as practicable and (ii) during this period, the GP Board (upon the recommendation of the GP Conflicts Committee) or the Conflicts Committee, as the case may be, has (x) negotiated, and has used its reasonable best efforts to cause its financial advisors and outside legal counsel to negotiate, with Parent in good faith (to the extent Parent desires to negotiate in its sole discretion) to make such adjustments in the terms of the Merger Agreement so that the failure to effect such Partnership Adverse Recommendation Change would not be inconsistent with (a)(1) with respect to the GP Board, its duties to the Partnership and Unitholders under applicable law, as modified by the Partnership Agreement, or (a)(2) with respect to the Conflicts Committee, its duties to the Partnership and the Partnership Unaffiliated Unitholders under applicable law, as modified by the Partnership Agreement, and (y) kept Parent reasonably informed with respect to the status and changes in the material terms and conditions of the Superior Proposal (it being understood that any change in the purchase price in such Superior Proposal shall be deemed a material amendment) and any other change in circumstances related thereto in accordance with the Merger Agreement; provided, however, that (i) any material amendment to the terms of a Superior Proposal, if applicable, shall require a new notice pursuant and begin a new notice period, except that such new notice period in connection with any material amendment shall be for two business days from the time Parent receives such notice (as opposed to five calendar days) and (ii); provided, further, that the GP Board or the Conflicts Committee, as applicable, must take into account all changes to the terms of the Merger Agreement proposed in writing by Parent in determining whether the failure to effect a Partnership Adverse Recommendation Change would be inconsistent with (a)(1) with respect to the GP Board, its duties to the Partnership and the Unitholders under applicable law, as modified by the Partnership Agreement, or (a)(2) with respect to the Conflicts Committee, its duties to the Partnership and the Partnership Unaffiliated Unitholders under applicable law, as modified by the Partnership Agreement.

Partnership Unitholder Approval

Under the applicable provisions of the Partnership Agreement, the approval of the Merger Agreement and the Merger requires the affirmative vote or consent of the holders of at least a majority of the issued and outstanding Common Units (such approval, the “Partnership Unitholder Approval”).

 

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Approval of the Merger Agreement and the Merger is a condition to the consummation of the Merger and requires the affirmative vote of holders of at least a majority of the issued and outstanding Common Units. Concurrently with the execution of the Merger Agreement, (i) the Partnership, Parent, Martin Resource LLC, a Delaware limited liability company (“Resource”), Cross Oil Refining & Marketing, Inc., a Delaware corporation (“Cross”), and Martin Product Sales LLC, a Texas limited liability company (“Martin Product,” and, together with Parent, Resource, and Cross the “Parent Group Support Entities”) entered into a support agreement included as Annex B in the accompanying proxy statement (the “Parent Group Support Agreement”), pursuant to which (a) Parent has agreed to cause Resource to vote or cause the 4,203,823 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement, (b) Parent has agreed to cause Cross to vote or cause the 889,444 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement, and (c) Parent has agreed to cause Martin Product to vote or cause the 1,021,265 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement; (ii) the Partnership and Senterfitt Holdings Inc. (“Senterfitt”), a Texas corporation wholly owned by Mr. Martin, entered into a support agreement included as Annex C in the accompanying proxy statement (the “Senterfitt Support Agreement”), pursuant to which Senterfitt has agreed to vote or cause the 3,726,607 Common Units it owns to be voted in favor of the Merger and the approval of the Merger Agreement; (iii) the Partnership and Robert D. Bondurant, entered into a support agreement included as Annex D in the accompanying proxy statement (the “Bondurant Support Agreement”), pursuant to which Mr. Bondurant has agreed to vote or cause the 149,296 Common Units he owns to be voted in favor of the Merger and the approval of the Merger Agreement; and (iv) the Partnership and Ruben S. Martin, III, entered into a support agreement included as Annex E in the accompanying proxy statement (the “Martin Support Agreement” and, together with the Parent Group Support Agreement, the Senterfitt Support Agreement and the Bondurant Support Agreement, the “Support Agreements”), pursuant to which Mr. Martin has agreed to vote or cause the 159,350 Common Units he owns to be voted in favor of the Merger and the approval of the Merger Agreement. The Support Agreements entered into by each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin (together, the “Support Parties”) to vote their Common Units in favor of the Merger Agreement will not be sufficient to approve the Merger Agreement and the Merger on behalf of the holders of the Common Units, without also obtaining additional votes of other holders of the Common Units. As of the Record Date, the Support Parties collectively owned approximately [●]% of the outstanding Common Units. The full text of the Support Agreements entered into between the Partnership and each of the Parent Group Support Entities, Senterfitt, Mr. Bondurant and Mr. Martin are attached as Annex B, Annex C, Annex D and Annex E, respectively, to this proxy statement. The Partnership encourages you to read each Support Agreement carefully and in its entirety.

The Merger Agreement requires the Partnership, through the GP Board, to establish a record date for, duly call, give notice of, convene and hold a special meeting of the limited partners of the Partnership as promptly as practicable after this proxy statement is cleared by the SEC (the “Partnership Unitholder Meeting”) (which special meeting date shall be no later than 35 days after the date that this proxy statement is cleared by the SEC), for the purpose of obtaining the Partnership Unitholder Approval. The Merger Agreement permits the Partnership to postpone or adjourn the Partnership Unitholder Meeting (i) to solicit additional proxies for the purpose of obtaining the Partnership Unitholder Approval, (ii) in the absence of quorum, (iii) to the extent reasonably necessary to ensure that any supplement or amendment to this proxy statement that the GP Board has determined after consultation with outside legal counsel is necessary under applicable laws is provided to the limited partners within the minimum amount of time reasonably practicable prior to the Partnership Unitholder Meeting and (iv) if the Partnership has delivered any notice contemplated by Section 6.3(e) and the time periods contemplated by Section 6.3(e) have not expired; provided, however, that in each case, without the written consent of Parent (which may not be unreasonably withheld, conditioned, or delayed), the Partnership may not be permitted to postpone or adjourn the Partnership Unitholder Meeting for more than 10 business days later than the most recently adjourned meeting or to a date after the date that is three business days prior to the Outside Date. The Partnership shall adjourn the Partnership Unitholder Meeting at the request of Parent (but in no event for more than 30 days from the date the Partnership Unitholder Meeting was originally scheduled to convene) (i) to solicit additional proxies for the purpose of obtained the Partnership Unitholder Approval or (ii) in the absence of quorum.

 

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The Merger Agreement also requires the Partnership, through the GP Board, to submit the Merger Agreement and the Merger to a vote by the Unitholders and use the Partnership’s reasonable best efforts to obtain from the Unitholders the Partnership Unitholder Approval, regardless of whether the GP Board or the Conflicts Committee effects a Partnership Adverse Recommendation Change under the Merger Agreement.

The Merger Consideration

At the Effective Time, (i) each Public Common Unit will be converted into the right the Merger Consideration, (ii) Common Units converted into the right to receive the Merger Consideration will no longer be outstanding and will automatically be cancelled and cease to exist and (iii) the Partnership Unaffiliated Unitholders will cease to have rights with respect to the Common Units, except with respect to the right to receive the Merger Consideration. The Merger Consideration is subject to adjustment pursuant to the terms of the Merger Agreement to reflect the effect of any unit distribution, subdivision, reclassification, recapitalization, split, split-up, combination, exchange of units or similar transaction and to provide the holders of the Common Units with the same economic effect as contemplated by the Merger Agreement prior to any such event.

All of the limited liability company interests in Merger Sub issued and outstanding immediately prior to the Effective Time will be cancelled and cease to exist, and no consideration will be delivered in respect thereof. The General Partner Interest of the Partnership, and the Common Units held by Parent, in each case that are issued and outstanding immediately prior to the Effective Time, will be unaffected by the Merger and will remain issued and outstanding, and no consideration will be delivered in respect thereof.

Treatment of Restricted Units, Phantom Units and Phantom Unit Appreciation Rights

The Merger Agreement provides that, as promptly as practicable following the date of the Merger Agreement, and in any event prior to the Effective Time, the GP Board (or, if appropriate, any committee administering the Partnership Restricted Unit Plan or the Partnership Phantom Unit Plan) will adopt resolutions, and the Partnership will take or cause to be taken all actions as may be necessary or required in accordance with applicable law, the Partnership Agreement, the Partnership Restricted Unit Plan or the Partnership Phantom Unit Plan, as applicable (including, the award agreements in respect of awards granted thereunder) to cause all (i) time vesting restricted units, (ii) phantom units and (iii) phantom unit appreciation rights then-outstanding immediately prior to the Effective Time to fully vest. Each holder of a restricted unit or phantom unit will receive an amount equal to the Merger Consideration with respect to each such unit that becomes vested pursuant to the terms of the Merger Agreement. Each holder of a phantom unit appreciation right will receive an amount equal to the Merger Consideration less the date of grant value (as determined in accordance with the applicable award agreement) with respect to each phantom unit appreciation right that becomes vested pursuant to the terms of the Merger Agreement. For additional information about these awards and the adjustments thereto, please see “Special Factors—Interests of the Directors and Executive Officers of the General Partner in the Merger.”

Prior to the Effective Time, the Partnership and the General Partner will take all actions necessary to terminate the Partnership Restricted Unit Plan and the Partnership Phantom Unit Plan, such termination to be effective as of, and contingent on, the Effective Time, and from and after the Effective Time, the Partnership Restricted Unit Plan and the Partnership Phantom Unit Plan will be terminated and no equity awards, other rights with respect to Common Units, phantom units, phantom unit appreciation rights or other partnership interests in the Partnership will be granted or be outstanding thereunder.

Distributions

Until the closing of the Merger, the General Partner is required to cause the Partnership to pay regular quarterly cash distributions to the holders of the Common Units consistent with past practice, including with respect to the timing of record dates and payment dates; provided that, subject to applicable law, in no event will the regular quarterly cash distributions declared or paid by the Partnership to the holders of the Common Units be

 

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less than $0.005 without the separate determination and approval of the Conflicts Committee. Notwithstanding the foregoing, the General Partner shall (and Parent shall, directly or indirectly, cause its representatives on the GP Board to) designate the record date for the quarterly cash distribution related to the quarter immediately prior to the quarter in which the closing occurs so that such record date precedes the Effective Time so as to permit the payment of such quarterly distribution to the holders of the Common Units.

Surrender of Units

Parent appointed the Paying Agent for the purpose of exchanging the Common Units, which may be either certificated or in book-entry form, for the Merger Consideration. As soon as reasonably practicable, but not later than five business days after the Effective Time, Parent will send, or will cause the Paying Agent to send, to each holder of record of Common Units as of the Effective Time, a letter of transmittal (which will specify that the delivery will be effected, and risk of loss and title will pass, only upon adherence to the procedures set forth in the letter of transmittal) in such customary form as Parent and the Partnership may reasonably agree, including instructions for use in effecting the surrender of the Common Units.

At or prior to the Effective Time, Parent will deposit or cause to be deposited with the Paying Agent, in trust for the benefit of the holders of the Common Units as of the Effective Time whose Common Units were converted into the right to receive the applicable Merger Consideration, an amount of cash equal to the amount of the aggregate Merger Consideration payable pursuant to the Merger Agreement. We refer to such cash deposited with the Paying Agent as the “Exchange Fund.” The Paying Agent will deliver the applicable Merger Consideration contemplated to be paid pursuant to the Merger Agreement out of the Exchange Fund.

Each holder of the Common Units that have been converted into the right to receive the applicable Merger Consideration, upon delivery to the Paying Agent of (i) a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto and (ii) such other documents as the Paying Agent may reasonably request, and surrender of such Common Units, will be entitled to receive in exchange therefore a check in an amount equal to the aggregate amount of cash that such holder has a right to receive under the Merger Agreement.

Adjustments to Prevent Dilution

The Merger Consideration will be appropriately adjusted to reflect fully the effect of any unit distribution, subdivision, reclassification, recapitalization, split, split-up, combination, exchange of units or similar transaction with respect to the number of outstanding Common Units prior to the Effective Time to provide the holders of the Common Units the same economic effect as contemplated by the Merger Agreement prior to such event.

Withholding

Parent, Merger Sub, the Partnership and the Paying Agent, which was retained by Parent for the purpose of exchanging Common Units for the Merger Consideration, will be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to the Merger Agreement such amounts, if any, as are required to be deducted and withheld with respect to the making of such payment under the Code, or under any provision of applicable state, local or foreign tax law. To the extent amounts are so withheld and paid over to the appropriate tax authority, such withheld amounts will be treated as having been paid to the former holder of the Common Units in respect of whom such withholding was made.

Filings

Pursuant to the Merger Agreement, Parent and Merger Sub, on the one hand, and the Partnership and the General Partner, on the other hand, have agreed to cooperate and use, and to cause their respective subsidiaries to use, their respective reasonable best efforts to (i) take, or cause to be taken, all actions, and do, or cause to be

 

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done, all things, necessary, proper or advisable to cause the conditions to the closing of the Merger Agreement to be satisfied as promptly as practicable (and in no event later than the Outside Date), and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by the Merger Agreement, including to prepare and file with any applicable governmental authority as promptly as practicable all documentation to effect all necessary, proper or advisable filings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required filings under applicable antitrust laws), (ii) obtain promptly (and in any event no later than the Outside Date) all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations from any governmental authority or third party necessary, proper or advisable to consummate the transactions contemplated by the Merger Agreement, (iii) defend any proceedings challenging the Merger Agreement or the consummation of the Merger or seek to have lifted or rescinded any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the transactions contemplated hereby and (iv) obtain all necessary consents, approvals or waivers from third parties; provided that neither the party nor any of its affiliates is required to sell, divest, hold separate, transfer or dispose of, or commit to any behavioral remedy with respect to, any assets, securities, operations, rights, product lines, businesses or interest therein of such party or any of their affiliates (or consent to any of the foregoing actions); or litigate or otherwise formally oppose any determination (whether judicial or administrative in nature) by a governmental authority.

Termination

The Merger Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time:

 

•

by the mutual written consent of (i) the Partnership, duly authorized by the Conflicts Committee and (ii) Parent;

 

•

by either the Partnership (duly authorized by the Conflicts Committee) or Parent, if:

 

•

the closing of the Merger does not occur on or before the Outside Date, except that the right to terminate the Merger Agreement in this situation will not be available (i) to the Partnership if the failure to satisfy such condition is due to the failure of either the Partnership or the General Partner to perform and comply in all material respects with the covenants and agreements in the Merger Agreement to be performed or complied with by it before the closing of the Merger (except where such failure to perform or comply occurred as the result of actions or failure to act by the Partnership or the General Partner pursuant to a Parent Directive), (ii) to Parent if the failure to satisfy such condition is due to the failure of any of Parent or Merger Sub or an affiliate thereof to perform and comply in all material respects with the covenants and agreements contained in the Merger Agreement or the Parent Group Support Agreement, as applicable, to be performed or complied with by it before the closing of the Merger or (iii) to the Partnership or Parent if, in the case of Parent, the Partnership or the General Partner, and in the case of the Partnership, Parent or Merger Sub, has filed (and is then pursuing) an action seeking specific performance as permitted under the terms of the Merger Agreement; or

 

•

any restraint is in effect and has become final and nonappealable that has the effect of enjoining, restraining, preventing or prohibiting the consummation of the Merger and the transactions contemplated by the Merger Agreement or making the consummation of the Merger and the transactions contemplated by the Merger Agreement illegal, except that the right to terminate the Merger Agreement will not be available to the Partnership or Parent if the restraint was due to the failure of, in the case of the Partnership, the Partnership or the General Partner (in each case, other than pursuant to a Parent Directive), and in the case of Parent, Parent or Merger Sub, or any affiliate thereof to perform in all material respects any of its obligations under the Merger Agreement or the Parent Group Support Agreement, as applicable; or

 

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•

the Partnership Unitholder Meeting has concluded and the Partnership Unitholder Approval has not been obtained.

 

•

by Parent, if:

 

•

the GP Board or Conflicts Committee, as applicable, shall have effected a Partnership Adverse Recommendation Change prior to receipt of Partnership Unitholder Approval;

 

•

Other than pursuant to a Parent Directive, prior to the receipt of the Partnership Unitholder Approval, the Partnership (a) fails to submit the Merger Agreement and Merger to a vote of the Unitholders at the Partnership Unitholder Meeting and to recommend and use its reasonable best efforts to obtain from the Unitholders the Partnership Unitholder Approval of the Merger Agreement, or (b) is in breach of its obligations to and to use its reasonable best efforts to cause its respective subsidiaries and the respective representatives to, immediately cease and cause to be terminated any discussions or negotiations with any person conducted heretofore with respect to an acquisition proposal pursuant to the terms of the Merger Agreement; provided, however, that Parent shall not have the right to terminate the Merger Agreement if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in the Merger Agreement or its Support Agreement, as applicable; or

 

•

the Partnership or the General Partner has breached or failed to perform (other than pursuant to a Parent Directive) any of its representations, warranties, covenants or agreements contained in the Merger Agreement (or if any of the representations or warranties of the Partnership or the General Partner in the Merger Agreement fail to be true), if the breach or failure to perform (i) would constitute the failure of a condition to Parent’s obligation to complete the Merger and (ii) is not capable of being cured, or is not cured, by the Partnership or the General Partner within the earlier of (A) 30 days after receipt of written notice from Parent of such breach or failure or (B) the Outside Date; provided, however, that Parent will not have the right to terminate the Merger Agreement under this condition if Parent or Merger Sub or an affiliate thereof is then in material breach of any of its representations, warranties, covenants or agreements contained in the Merger Agreement or the Support Agreements.

 

•

by the Partnership (duly authorized by the GP Board), or by the Conflicts Committee (which termination may be effected on behalf of the Partnership by the Conflicts Committee without having to obtain the consent, authorization or approval of the GP Board, the General Partner, the Partnership, or any other person), if:

 

•

if Parent or Merger Sub has breached or failed to perform any of its representations, warranties, covenants or agreements contained in the Merger Agreement (or if any of Parent’s or Merger Sub’s representations or warranties contained in the Merger Agreement fails to be true) and such breach or failure would (A) constitute the failure of a condition of the Partnership’s obligation to complete the Merger and (B) is not capable of being cured, or is not cured, by Parent or Merger Sub within the earlier of (x) 30 days after receipt of notice from the Partnership of such breach or failure or (y) the Outside Date; or

 

•

if at least five business days have elapsed since the Partnership (duly authorized by the GP Board) or the Conflicts Committee (which action may be effected on behalf of the Partnership by the Conflicts Committee without having to obtain the consent, authorization or approval of the GP Board, the General Partner, the Partnership, or any other person) has sent a written notice to Parent that the conditions precedent regarding (A) obtaining the Partnership Unitholder Approval, (B) the absence of any legal restraint or prohibition enjoining or otherwise prohibiting the consummation of the Merger or making the consummation of the Merger illegal, (C) compliance with regulatory approvals and (D) Parent’s and Merger Sub’s obligations to effect the Merger have been satisfied (other than such conditions that by their nature are only capable of being satisfied by the delivery of documents or taking of other action at closing of the Merger), and the Partnership stands ready, willing, and able to consummate the Merger and the transactions

 

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contemplated by the Merger Agreement, and Parent has failed to consummate the Merger and the transactions contemplated thereby within such five business day period provided, however, that the Partnership will not have the right to terminate the Merger Agreement if the Partnership or the General Partner is then in material breach (other than pursuant to a Parent Directive) of any of its representations, warranties, covenants or agreements contained in the Merger Agreement.

Effect of Termination; Remedies

In the event of termination of the Merger Agreement as summarized above under “—Termination,” the Merger Agreement will terminate and become null and void (other than certain provisions relating to, among other things, fees and expenses and litigation related to the Merger and the transactions contemplated by the Merger Agreement) and there will be no liability on the part of any of Parent, Merger Sub, the Partnership or the General Partner, or their respective directors, officers and affiliates, to the other parties to the Merger Agreement; provided, however, that no such termination will relieve any party from (i) its obligation to pay the Parent Expense Reimbursement, the Partnership Expense Reimbursement, the Partnership Termination Fee, or the Parent Termination Fee, as applicable, if, as and when required pursuant to the Merger Agreement or (ii) any liability for intentional fraud or a willful breach of any covenant or other agreement contained in the Merger Agreement. Notwithstanding the foregoing, in no event will the General Partner or the Partnership or their respective directors, officers and affiliates have any liability for any matter set forth in clause (i) above for any action taken or omitted to be taken by the General Partner, the Partnership, any of their respective subsidiaries or any of their respective representatives at the direction of Parent, any of its subsidiaries or any of their respective duly authorized representatives (including any Parent designees to the GP Board).

Termination Fees; Expenses

In the event of termination of the Merger Agreement (i) by Parent pursuant to the Merger Agreement in the event of a Partnership Adverse Recommendation Change, (ii) by the Partnership or Parent pursuant to the Merger Agreement in the event of a failed Partnership Unitholder vote in a case where a Partnership Adverse Recommendation Change has occurred, (iii) by the Partnership pursuant to the Merger Agreement if the closing of the Merger does not occur on or before the Outside Date and, at the time of such termination, the (a) Partnership Unitholder Approval has not been obtained and (b) Parent would have been permitted to terminate the Merger Agreement pursuant to the terms of the Merger Agreement in the event of a Partnership Adverse Recommendation Change or (iv) (A) by Parent pursuant to the Merger Agreement in the event of a Partnership or General Partner uncured breach, (B) by the Partnership pursuant to the Merger Agreement in the event the Merger is not consummated prior to the Outside Date or (C) by either Parent or the Partnership pursuant to the Merger Agreement in the event of a failed Partnership Unitholder vote, in each case, if a Superior Proposal shall have been publicly made, proposed or communicated (or shall have otherwise become publicly known) after the date of the Merger Agreement and not withdrawn prior to the Partnership Unitholder Meeting (or, if earlier, prior to the time of termination of the Merger Agreement), and at any time on or prior to the 12-month anniversary of such termination, the Partnership or its subsidiary completes or enters into a definitive agreement with respect to, and thereafter completes, any Superior Proposal, then the Partnership will pay to Parent a termination fee equal to $2.5 million (the “Partnership Termination Fee”) within two business days after the date of termination.

In the event of termination of the Merger Agreement by Parent pursuant to the Merger Agreement in the event (i) other than pursuant to a Parent Directive, prior to the receipt of the Partnership Unitholder Approval, the Partnership (a) fails to submit the Merger Agreement and Merger to a vote of the Unitholders at the Partnership Unitholder Meeting and to recommend and use its reasonable best efforts to obtain from the Unitholders the Partnership Unitholder Approval of the Merger Agreement, or (b) is in breach of its obligations to and to use its reasonable best efforts to cause its respective subsidiaries and the respective representatives to, immediately cease and cause to be terminated any discussions or negotiations with any person conducted heretofore with respect to an acquisition proposal pursuant to the terms of the Merger Agreement; provided, however, that Parent

 

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or Merger Sub is not then in material breach of any of its representations, warranties, covenants or agreements contained in the Merger Agreement or its Support Agreement, as applicable, or (ii) the Partnership’s or the General Partner’s breach or failure to perform (other than pursuant to a Parent Directive) any of their representations, warranties, covenants or agreements set forth in the Merger Agreement, which breach or failure (A) would (if it occurred or was continuing as of the closing of the Merger) give rise to the failure of a condition obligating Parent and Merger Sub to effect the Merger and (B) is incapable of being cured, or is not cured, by the Partnership or the General Partner within the earlier of (x) 30 days following receipt of written notice from Parent of such breach or failure or (y) the Outside Date, under circumstances where the Partnership Termination Fee is not payable, then the Partnership shall promptly, but no later than two business days after receipt of an invoice (with supporting documentation) from Parent, pay Parent’s designee all of the reasonable documented out-of-pocket expenses (including all reasonable fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants) incurred by Parent and its affiliates in connection with the Merger Agreement and the Merger up to a maximum amount of $5.0 million (the “Parent Expense Reimbursement”).

In the event of termination of the Merger Agreement by the Partnership pursuant to the Merger Agreement in the event of Parent’s or the Merger Sub’s uncured breach or failure to perform any of their representations, warranties, covenants or agreements set forth in the Merger Agreement, then Parent shall promptly, but no later than two business days after receipt of an invoice (with supporting documentation) from the Partnership, pay the Partnership’s designee all of the reasonable documented out-of-pocket expenses (including all reasonable fees and expenses of counsel, accountants, investment bankers, financing sources, experts and consultants) incurred by the Partnership and its affiliates in connection with the Merger Agreement and the Merger up to a maximum amount of $5.0 million (the “Partnership Expense Reimbursement”).

In the event of termination of the Merger Agreement by the Partnership or the Conflicts Committee, as applicable, pursuant to the Merger Agreement in the event at least five business days have elapsed since the Partnership (duly authorized by the GP Board) or the Conflicts Committee (which action may be effected on behalf of the Partnership by the GP Conflicts Committee without having to obtain the consent, authorization or approval of the GP Board, the General Partner, the Partnership, or any other person) sent a written notice to Parent that certain conditions precedent to the Merger have been satisfied (other than such conditions that by their nature are only capable of being satisfied by the delivery of documents or taking of other action at closing of the Merger), and the Partnership stands ready, willing, and able to consummate the Merger and the transactions contemplated by the Merger Agreement, and Parent has failed to consummate the Merger and the transactions contemplated by the Merger Agreement within such five business day period, then within 10 business days after such termination, then Parent shall, by wire transfer of immediately available funds, pay the Partnership a termination fee equal to $6.0 million (the “Parent Termination Fee”).

In no event shall (i) Parent be entitled to receive both the Partnership Termination Fee and the Parent Expense Reimbursement, in connection with a termination of the Merger Agreement and (ii) the Partnership be entitled to receive both the Parent Termination Fee and the Partnership Expense Reimbursement, in connection with a termination of the Merger Agreement.

Conduct of Business Pending the Merger

Subject to certain exceptions, unless Parent consents in writing (which consent must not be unreasonably withheld), from October 3, 2024 until the earlier of the Effective Time and termination of the Merger Agreement in accordance with the terms thereof, the General Partner and the Partnership have agreed to (i) conduct the business of the Partnership and its subsidiaries in the ordinary course of business and consistent with past practices, (ii) use commercially reasonable efforts to preserve intact the business organization, goodwill and assets of the Partnership and its subsidiaries and maintain the rights, franchises and existing relations with customers, suppliers, employees and business associates of the Partnership and its subsidiaries and (iii) use commercially reasonable efforts to keep in full force and effect all material permits and all material insurance policies maintained by the Partnership and its affiliates, in each case.

 

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Subject to certain exceptions, unless Parent consents in writing (which consent must not be unreasonably withheld, conditioned or delayed), from October 3, 2024 until the earlier of the Effective Time and termination of the Merger Agreement in accordance with the terms thereof, the General Partner and the Partnership have agreed that they will not, and will cause each of their respective subsidiaries not to:

 

•

other than annual compensatory equity awards granted to non-employee directors of the GP Board in the ordinary course of business and consistent with past practices, settlement of outstanding Phantom Units in the ordinary course, or as expressly contemplated by the Merger Agreement, (i) issue, sell or otherwise permit to become outstanding, or authorize the creation of, any additional equity securities (other than pursuant to the existing terms of any Rights (as defined in the Merger Agreement)), or any additional Rights, (ii) issue, grant or amend any award under the Partnership Restricted Unit Plan or (iii) enter into any agreement with respect to the foregoing;

 

•

(i) split, combine or reclassify any of its equity interests or authorize or propose the issuance of any other securities in respect of, in lieu of or in substitution for its equity interests or (ii) repurchase, redeem or otherwise acquire (or permit any of its subsidiaries to purchase, redeem or otherwise acquire) any equity interests or Rights, except as required by the terms of its securities outstanding on the date of the Merger Agreement, by the terms of any outstanding Phantom Unit or as expressly contemplated by the terms of the Merger Agreement;

 

•

(i) other than the lease of assets in the ordinary course of business and consistent with past practice sell, lease or dispose of any portion of its assets, business or properties that, in the aggregate, have a purchase price in excess of $1.0 million (other than distributions permitted under the Merger Agreement or pursuant to sales, leases or disposals of such assets, business or properties pursuant to any Contract in effect as of October 3, 2024), (ii) acquire, by merger or otherwise, or lease any assets or all or any portion of the business or property of any other entity that, in the aggregate, have a purchase price in excess of $1.0 million or (iii) convert from a limited partnership or limited liability company, as the case may be, to any other business entity;

 

•

make or declare distributions to the holders of any Common Units or the phantom units other than regular quarterly cash distributions in respect of the Common Units in the ordinary course of business, other than as described in “—Distributions”;

 

•

amend the Partnership Agreement or the organizational documents of the Partnership’s affiliates (including by merger, consolidation, conversion or otherwise), as in effect on the date of the Merger Agreement;

 

•

enter into, modify, amend, terminate, assign or waive any rights under, any material contract of the Partnership other than in the ordinary course of business and consistent with past practices;

 

•

waive, release, assign, settle or compromise any pending or threatened proceeding, including any state or federal regulatory proceeding, seeking damages or an injunction or other equitable relief that is material to Partnership and its subsidiaries taken as a whole or is a claim, action or proceeding relating to the transactions contemplated by the Merger Agreement;

 

•

implement or adopt any material change in accounting principles, practices or methods, other than as may be required by GAAP or other applicable regulatory authorities;

 

•

(i) change its fiscal year or any material method of tax accounting, (ii) make any material tax election that is inconsistent with past practice or change or revoke any material tax election, (iii) settle or compromise any material liability for taxes, (iv) file any material amended tax return or (v) take any action or fail to take any action that could create a material risk that any of the Partnership or any of its subsidiaries, other than Martin Transport, Inc., would be treated as a corporation for U.S. federal income tax purposes;

 

•

other than in the ordinary course of business and consistent with past practices, (A) incur, assume, guarantee or otherwise become liable for any indebtedness (directly, contingently or otherwise), other

 

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than borrowings under existing revolving credit facilities or intercompany credit agreements or money pool arrangements or (B) create any lien on its property to secure indebtedness or any other obligation;

 

•

authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, division or restructuring or a plan or agreement of reorganization under any bankruptcy or similar law;

 

•

take any action that would reasonably be expected to prohibit, prevent, or materially hinder, impede, or delay the ability of the Parties to satisfy any of the conditions to or the consummation of the Merger or the other transactions contemplated by the Merger Agreement; or

 

•

agree or commit to do anything described above.

Indemnification; Directors’ and Officers’ Insurance

From the Effective Time and until the sixth anniversary of the Effective Time, to the fullest extent permitted under applicable laws, Parent will, and will cause the surviving entity and the General Partner jointly and severally agree to indemnify, defend and hold harmless against any cost or expenses (including attorneys’ fees and all other reasonable costs, expenses and obligations, including experts’ fees, travel expenses, court costs, retainers, transcript fees, duplicating, printing and binding costs, as well as telecommunications, postage and courier charges) paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to investigate, defend, be a witness in or participate in, any proceeding (including any proceeding relating to a claim for indemnification or advancement brought by any person who is now, or has been or becomes at any time prior to the Effective Time, an officer or director of the Partnership or any of its subsidiaries or the General Partner, or serving in certain other capacities on behalf of or at the request of the Partnership or the General Partner (each an “Indemnified Person”)), judgments, settlements, fines and other sanctions, losses, claims, damages or liabilities, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) in connection with any actual or threatened proceeding, and provide advancement of expenses with respect to each of the foregoing to, all Indemnified Persons to the fullest extent permitted under applicable law. In addition, Parent will, and will cause the Partnership (as the surviving entity of the Merger) and the General Partner to honor the provisions regarding elimination of liability of officers and directors, indemnification of officers, directors and employees and advancement of expenses contained in the organizational documents of the Partnership and the General Partner immediately prior to the Effective Time and ensure that the organizational documents of the Partnership and the General Partner or any of their respective successors or assigns, if applicable, will, for a period of six years following the Effective Time, contain provisions no less favorable with respect to indemnification, advancement of expenses and exculpation of present and former directors, officers, employees and agents of the Partnership and the General Partner than are presently set forth in such organizational documents. These rights of an Indemnified Person will not be amended, repealed, terminated, or otherwise modified at any time in a manner that would adversely affect the rights of such Indemnified Person, and will be enforceable by such Indemnified Person and their respective heirs and representatives against Parent, the Partnership, and the General Partner, and their respective successors and assigns. Subject to the last sentence of this paragraph, Parent shall maintain or cause the Surviving Entity to maintain in effect for six years from the Effective Time, the Partnership’s current directors’ and officers’ liability insurance policies covering acts or omissions occurring at or prior to the Effective Time with respect to such Indemnified Persons (provided that Parent or the surviving entity may substitute therefor policies with reputable carriers of at least the same coverage containing terms and conditions that are no less favorable to the Indemnified Persons); provided, however, that in no event will Parent or the surviving entity be required to expend more than an amount per year equal to 300% of the current annual premiums paid by the Partnership or the General Partner for such insurance. In the event that, but for the proviso in the immediately preceding sentence, Parent or the surviving entity would be required to expend more than 300% of the current annual premiums paid by the Partnership or the General Partner for such insurance, Parent or the surviving entity shall obtain the maximum amount of such insurance as is available for such 300% amount. In lieu of the obligations of Parent discussed in the preceding sentence,

 

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Parent or the surviving entity may (but shall be under no obligation to), prior to the Effective Time, purchase a six-year “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such.

Conflicts Committee

Parent has agreed, until the earlier of the Effective Time or the termination of the Merger Agreement, not to, without the consent of the Conflicts Committee, take any action (or allow its subsidiaries to take any action) intended to cause the General Partner to eliminate the Conflicts Committee, revoke or diminish the authority of the Conflicts Committee or remove or cause the removal of any member of the Conflicts Committee, either as a member of the GP Board or the Conflicts Committee.

Amendment and Supplement

At any time prior to the Effective Time, the Merger Agreement may be amended, supplemented or modified in any and all respects whether before or after receipt of the Partnership Unitholder Approval, by written agreement of the parties, by action taken or authorized by the Board of Directors of Parent, with respect to Parent and Merger Sub, and the GP Board, with respect to the Partnership and the General Partner; provided, however, that the GP Board may not take or authorize any such action unless it has been approved in writing by the Conflicts Committee. After the receipt of the Partnership Unitholder Approval, no amendment to the provisions of the Merger Agreement may be made which by applicable law or stock exchange rule would require further approval by the limited partners, without such approval. Unless otherwise expressly provided in the Merger Agreement, whenever a determination, decision, approval, consent, waiver or agreement of the Partnership or General Partner is required pursuant to the Merger Agreement (including any determination to exercise or refrain from exercising certain rights under, or to enforce the terms of, the Merger Agreement), such determination, decision, approval, consent, waiver or agreement must be authorized by the Conflicts Committee, on behalf of the General Partner or the Partnership.

Waiver and Consent

At any time prior to the Effective Time, any party to the Merger Agreement that is the intended beneficiary of the relevant provision of the Merger Agreement may, subject to applicable law, (a) waive any inaccuracies in the representations and warranties of any other party to the Merger Agreement, (b) extend the time for performance of any of the obligations or acts of any other party to the Merger Agreement, (c) waive compliance by any other party to the Merger Agreement with any of the agreements contained in the Merger Agreement, or (d) make or grant any consent under the Merger Agreement; provided, however, that GP Board may not take or authorize any such action unless it has been approved in writing by the Conflicts Committee. Notwithstanding the foregoing, no failure or delay by the Partnership, the General Partner, the Conflicts Committee, Parent or Merger Sub in exercising any right under the Merger Agreement will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right under the Merger Agreement. Any agreement on the part of a party to the Merger Agreement to any such extension or waiver will be valid only if set forth in an instrument in writing signed on behalf of such party.

Remedies; Specific Performance

The Merger Agreement provides that the parties thereto are entitled to seek an injunction or injunctions to prevent breaches of the Merger Agreement and to specifically enforce the provisions of the Merger Agreement, in addition to any other remedy to which such parties are entitled at law or in equity. The Merger Agreement provides for a waiver of any requirement to obtain, furnish or post any bond or similar instrument in connection with obtaining any remedy contemplated by this paragraph.

 

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Representations and Warranties

The Merger Agreement contains representations and warranties by Parent and Merger Sub, on the one hand, and the Partnership and the General Partner, on the other hand. These representations and warranties have been made only for the benefit of the other parties to the Merger Agreement and:

 

•

may be intended not as statements of fact, but rather as a way of allocating contractual risk to the other parties if those statements prove to be inaccurate;

 

•

may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and

 

•

were made only as of the date of the Merger Agreement or such other date or dates as may be specified in the Merger Agreement and are subject to more recent developments, and accordingly, may not describe the actual state of affairs as of the date they were made or at any other time.

The Merger Agreement is attached as Annex A to this proxy statement and included herein only to provide the Partnership Unaffiliated Unitholders with information regarding the terms of the Merger Agreement, and not to provide the Partnership Unaffiliated Unitholders with any other factual information regarding the Partnership, Parent or their respective affiliates or businesses. Additionally, these representations and warranties should not be read alone, but instead should be read only in conjunction with the information provided elsewhere in this proxy statement, in the documents incorporated by reference into this proxy statement, or contained in, or incorporated by reference into, the filings that the Partnership or Parent make with the SEC, which may include information that updates, modifies or qualifies the information set forth in the representations and warranties.

The representations and warranties made by the Partnership and the General Partner, many of which contain various assumptions and qualifications, relate to, among other things:

 

•

due and valid organization, good standing, limited partnership, limited liability company, partnership or corporate power and authority, and similar matters;

 

•

due authorization of the Merger Agreement and the transactions contemplated by the Merger Agreement, subject to obtaining Partnership Unitholder Approval;

 

•

enforceability of the Merger Agreement;

 

•

the absence of conflicts created by the execution of the Merger Agreement and the consummation of the Merger with (A) applicable law, (B) the organizational documents of the Partnership, the General Partner or any of their respective subsidiaries and (C) certain contracts to which the Partnership, the General Partner or any of their respective subsidiaries are bound;

 

•

capitalization;

 

•

required consents and approvals of governmental entities in connection with the transactions contemplated by the Merger Agreement;

 

•

proper preparation and filing by the Partnership of applicable documents with the SEC, absence of undisclosed liabilities and maintenance of internal controls of the Partnership;

 

•

absence of changes since December 31, 2023;

 

•

legal proceedings;

 

•

compliance with applicable laws and possession of applicable permits;

 

•

information supplied in connection with this proxy statement and the filing of a Schedule 13E-3;

 

•

material contracts binding the Partnership;

 

•

benefit plans and labor matters;

 

116

•

environmental matters;

 

•

tax matters;

 

•

good and valid title to property and leases;

 

•

intellectual property;

 

•

opinion of financial advisor to the Conflicts Committee;

 

•

brokers and other advisors;

 

•

insurance coverage; and

 

•

no other representations and warranties.

The representations and warranties made by Parent and Merger Sub, many of which contain various assumptions and qualifications, relate to, among other things:

 

•

due and valid organization and good standing of Parent and Merger Sub;

 

•

operations and ownership of Merger Sub;

 

•

ownership of Common Units by Parent;

 

•

enforceability of the Merger Agreement;

 

•

the absence of conflicts created by the execution of the Merger Agreement and the consummation of the Merger with (A) applicable law, (B) the organizational documents of the Merger Sub, Parent or Parent’s subsidiaries and (C) certain contracts to which the Merger Sub, Parent or Parent’s subsidiaries are parties or by which their assets are bound;

 

•

required consents and approvals of governmental entities in connection with the transactions contemplated by the Merger Agreement;

 

•

legal proceedings;

 

•

information supplied in connection with this proxy statement and the filing of a Schedule 13E-3;

 

•

brokers and other advisors;

 

•

sufficient sources of available funds;

 

•

absence of contracts or commitments entitling the Partnership Unaffiliated Unitholders to receipt of consideration of a different amount or nature than the applicable Merger Consideration;

 

•

delivery of the Parent Disclosure Letter (as defined in the Merger Agreement); and

 

•

no other representations and warranties.

Additional Agreements

The Merger Agreement also contains covenants relating to cooperation in the preparation of this proxy statement and the Schedule 13E-3 and holding the Partnership Unitholder Meeting, and additional agreements relating to, among other things, access to information, applicability of takeover statutes, public announcements, litigation relating to the Merger, and communications with employees.

No Golden Parachute or Other Compensation Payable to the Directors or Officers of the General Partner by Parent, the General Partner or the Partnership in Connection with the Merger

None of the executive officers or directors of the General Partner are entitled to any compensation from Parent, the General Partner or the Partnership as a result of any agreement or understanding between such executive officer or director, as applicable, and Parent, the General Partner or the Partnership that is enhanced by reason of the occurrence of the transactions contemplated by the Merger Agreement, including the Merger.

 

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COMMON UNIT OWNERSHIP

Common Unit Ownership of Certain Beneficial Owners and Management

The following table sets forth the beneficial ownership of the Common Units as of October 21, 2024, by each person or trust known to beneficially own more than 5% of the Common Units, all of the directors of the General Partner, each named executive officer of the General Partner and all current directors and executive officers of the General Partner as a group. The number of Common Units beneficially owned by each person is determined under SEC rules and the information is not necessarily indicative of beneficial ownership for any other purpose. The percentage of beneficial ownership is calculated on the basis of 39,001,086 Common Units outstanding as of October 21, 2024. Except as indicated by footnote, the persons named in the table below have sole voting and investment power with respect to all Common Units shown as beneficially owned by them, subject to community property laws where applicable.

 

		Common Units Beneficially Owned
Name of Beneficial Owner(1)		Number				Percent
MRMC ESOP Trust(2)			6,114,532				15.7	%
Martin Resource Management Corporation(3)			6,114,532				15.7	%
Martin Resource LLC(3)			4,203,823				10.8	%
Martin Product Sales LLC(3)			1,021,265				2.6	%
Cross Oil Refining & Marketing Inc.(3)			889,444				2.3	%
Invesco Ltd. (4)			7,212,745				18.5	%
Senterfitt Holdings Inc.(5)			3,726,607				9.6	%
Ruben S. Martin, III(6)			10,000,489				25.6	%
Robert D. Bondurant			149,296					*
Randall L. Tauscher			118,199					*
Chris H. Booth(7)			48,224					*
Sharon L. Taylor(8)			24,773					*
Scot A. Shoup			28,039					*
C. Scott Massey(9)			151,966					*
Byron R. Kelley			134,066					*
James M. Collingsworth(10)			132,241					*
All directors and executive officers as a group (9 persons)(11)			10,787,293				27.7	%

 

*	Less than 1%

(1)	Unless otherwise indicated, the address for all beneficial owners in this table is 4200 B Stone Road, Kilgore, Texas 75662.

(2)

By virtue of its ownership of 89.18% of the outstanding common stock of Parent, the MRMC ESOP Trust (the “MRMC ESOP”) is the controlling shareholder of Parent, and may be deemed to beneficially own the 6,114,532 Common Units held by Resource, Cross Oil Refining & Marketing Inc., and Martin Product Sales LLC. Robert D. Bondurant, Randall L. Tauscher, and Melanie Mathews, Vice President – Human Resources (the “MRMC ESOP Co-Trustees”) serve as co-trustees of MRMC ESOP but all of its voting and investment decisions are directed by Parent Board. MRMC ESOP expressly disclaims beneficial ownership of the Common Units as voting and investment decisions are directed by the Parent Board.

(3)

Parent is the owner of Resource, Product, and Cross, and as such may be deemed to beneficially own the common units held by Resource, Cross, and Product. The 4,203,823 common units beneficially owned by Parent through its ownership of Resource have been pledged as security to a third party to secure payment for a loan made by such third party. The 1,021,265 common units beneficially owned by Parent through its ownership of Product have been pledged as security to a third party to secure payment for a loan made by such third party. The 889,444 common units beneficially owned by Parent through its ownership of Cross have been pledged as security to a third party to secure payment for a loan made by such third party.

 

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