SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
| Chesapeake Midstream Partners, L.P. |
(Name of Issuer)
| Common Units Representing Limited Partner Interests, No Par Value |
(Title of Class of Securities)
| 16524K 108 |
(CUSIP Number)
| Global Infrastructure Investors II, LLC Attention: Joseph Blum 12 East 49th Street New York, New York 10017 (212) 315-8100 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
| June 29, 2012 |
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
This Amendment No. 1 to Schedule 13D (“Amendment No. 1”) amends the Schedule 13D filed with the Securities and Exchange Commission on June 25, 2012 (the “Schedule 13D”), relating to the common units representing limited partner interests (the “Common Units”) of Chesapeake Midstream Partners, L.P., a Delaware limited partnership (the “Issuer”). Global Infrastructure Investors II, LLC, Global Infrastructure GP II, L.P. (“Global GP”), GIP II Eagle Acquisition Holdings GP, LLC (“Eagle GP”) and GIP II Eagle Holdings Partnership, L.P. (“Eagle Holdings”) are sometimes collectively referred to herein as the “Reporting Persons.”
| ITEM 4. | Purpose of Transaction |
Item 4 is hereby amended and supplemented by the following:
On June 29, 2012, pursuant to a purchase agreement dated as of June 7, 2012 (the “Second Purchase Agreement”) between Chesapeake Midstream Holdings, L.L.C. (“CMH”) and GIP II Eagle 4 Holding, L.P. (“Eagle 4”) and the Assignment and Contribution Agreement dated June 25, 2012 by and among GIP II Eagle 1 Holding, L.P., GIP II Eagle 2 Holding, L.P. (“Eagle 2”), GIP II Eagle 3 Holding, L.P., Eagle 4 and Eagle Holdings, Eagle Holdings completed the previously reported acquisition from CMH, for cash consideration of $1.0 billion, of (i) 6,438,115 subordinated units representing limited partnership interest of the Issuer (“Subordinated Units”), and (ii) 33,704,666 Common Units. The Second Purchase Agreement and the Assignment and Contribution Agreement previously were filed as exhibits to the Schedule 13D.
On June 29, 2012, GIP II Eagle 4 Holding GP, LLC, (the “Eagle 4 GP”), Global GP and Eagle Holdings entered into an agreement (the “Eagle Holdings Agreement”) pursuant to which, to the extent that Eagle Holdings is entitled to designate one or more members of the board of managers (the “GP Board,” and any such member a “GP Director”) of Chesapeake Midstream GP, L.L.C., the general partner of the Issuer (the “General Partner”), to the extent requested by the Eagle 4 GP, Eagle Holdings shall designate an individual identified by the Eagle 4 GP, subject to the approval of Global GP. Also pursuant to the Eagle Holdings Agreement, if Global GP directly or indirectly causes any Fund Owner (as defined in the Eagle Holdings Agreement) to dispose of units of Chesapeake Midstream Ventures, L.L.C. (“CMV”), the sole member of the General Partner (such units, the “CMV Units”), Subordinated Units and/or Common Units, Global GP shall cause Eagle Holdings to dispose of, for the pro rata benefit of its limited partners, the same proportion of its CMV Units, Subordinated Units and/or Common Units as are being disposed of by the Fund Owner at the same time and on the same terms as the Fund Owner. Also, to the extent Eagle Holdings is entitled to vote on any matters under the Portfolio Company Documents (as defined in the Eagle Holdings Agreement), Global GP shall cause Eagle Holdings to cast all of its votes in an identical manner and in a manner consistent with that of any Fund Owner in respect of its interest in the CMV or the Issuer.
Also on June 29, 2012, GIP II-B Eagle AIV 1, L.P., which is the sole member of the general partner of Eagle 2 (the “Eagle 2 Fund”), Eagle Holdings, Eagle 2, Eagle GP, CMV, the General Partner, the Issuer and Chesapeake MLP Operating, L.L.C., entered into an Amended and Restated Management Rights Agreement pursuant to which Eagle 2 Fund has the right to
designate one member of the board of managers of CMV (“CMV Manager”) and one GP Director, in each case that Eagle Holdings would otherwise have the right to designate. The Amended and Restated Management Rights Agreement replaces and supersedes both the Management Rights Agreement and the Director Agreement, each of which previously was filed as an exhibit to the Schedule 13D. Pursuant to the Amended and Restated Management Rights Agreement, Eagle Holdings, at the direction of Eagle 2 Fund, designated the Issuer’s Chief Executive Officer, J. Michael Stice, as a GP Director. William Brilliant will continue to serve as a CMV Manager and a GP Director as a designee of Eagle Holdings, and Dominic J. Dell’Osso, Jr., will continue to serve as a GP Director as a designee of Eagle Holdings.
The foregoing descriptions of the Eagle Holdings Agreement and the Amended and Restated Management Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such agreements filed as exhibits to this Amendment No. 1, and incorporated herein by reference.
| ITEM 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer |
Item 6 is hereby amended and supplemented by the following:
Item 4 above summarizes certain provisions of the Eagle Holdings Agreement and the Amended and Restated Management Rights Agreement and is incorporated herein by reference. A copy of each of these agreements is attached as an exhibit to this Amendment No. 1, and each is incorporated by reference herein.
| Item 7. | Materials to be Filed as Exhibits |
| Exhibit Number |
Description | |
| 1 | Joint Filing Agreement (incorporated by reference to Exhibit 1 of Schedule 13D, dated June 25, 2012, filed by Global Infrastructure Investors II, LLC). | |
| 2 | Agreement by and among GIP II Eagle 4 Holding GP, LLC, Global Infrastructure GP II, L.P. and GIP II Eagle Holdings Partnership, L.P., dated June 29, 2012. | |
| 3 | Amended and Restated Management Rights Agreement by and among GIP II-B Eagle AIV 1, L.P., GIP II Eagle Holdings Partnership, L.P., GIP II Eagle 2 Holding, L.P., GIP II Eagle Acquisition Holdings GP, LLC, Chesapeake Midstream Ventures, L.L.C., Chesapeake Midstream GP, L.L.C., Chesapeake Midstream Partners, L.P. and Chesapeake MLP Operating, L.L.C., dated June 29, 2012. | |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: July 3, 2012
| GLOBAL INFRASTRUCTURE INVESTORS II, LLC | ||
| by: | /s/ Mark Levitt | |
| Name: | Mark Levitt | |
| Title: | Secretary | |
| GLOBAL INFRASTRUCTURE GP II, L.P. | ||
| by: | Global Infrastructure Investors II, LLC, its general partner | |
| by: | /s/ Mark Levitt | |
| Name: | Mark Levitt | |
| Title: | Secretary | |
| GIP II EAGLE ACQUISITION HOLDINGS GP, LLC | ||
| by: | Global Infrastructure GP II, L.P., its managing member | |
| by: | Global Infrastructure Investors II, LLC, its general partner | |
| by: | /s/ Mark Levitt | |
| Name: | Mark Levitt | |
| Title: | Secretary | |
| GIP II EAGLE HOLDINGS PARTNERSHIP, L.P. | ||
| by: | GIP II Eagle Acquisition Holdings GP, LLC, its general partner | |
| by: | Global Infrastructure GP II, L.P., its managing member | |
| by: | Global Infrastructure Investors II, LLC, its general partner | |
| by: | /s/ Mark Levitt | |
| Name: | Mark Levitt | |
| Title: | Secretary | |
Exhibit 2
AGREEMENT
This Agreement (the “Agreement”) is entered into as of June 29, 2012 by and between GIP II Eagle 4 Holding GP, LLC, a Delaware limited liability company (“Eagle 4”), Global Infrastructure GP II, L.P., a Guernsey limited partnership (“GP II”), and GIP II Eagle Holdings Partnership, L.P., a Delaware limited partnership (“Eagle Holdings,” and, together with Eagle 4 and GP II, the “Parties”).
WHEREAS, the Parties desire to set forth certain agreements with respect to the matters set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
| 1. | Definitions. |
As used in this Agreement, the following capitalized terms have the meanings set forth below:
“Affiliate” has the meaning set forth in Rule 405 promulgated under the U.S. Securities Act of 1933, as amended, provided that CHKM and CMV and their respective affiliates shall be deemed not to be “Affiliates” of the Global Infrastructure Management, LLC, Eagle 4 or the Company.
“Agreement” has the meaning set forth in the introduction.
“CHKM” means Chesapeake Midstream Partners, L.P., a Delaware limited partnership.
“CHKM GP” means Chesapeake Midstream GP, L.L.C., a Delaware limited liability company and the sole general partner of CHKM.
“CHKM Units” means common units and subordinated units of CHKM.
“CMV” means Chesapeake Midstream Ventures, L.L.C., a Delaware limited liability company.
“CMV Units” means limited liability company interests of CMV.
“Company” means GIP II Coinvest Holding 1 (Eagle U.S.), LLC, a Delaware limited liability company.
“Eagle 4” has the meaning set forth in the introduction to this Agreement.
“Eagle Holdings” has the meaning set forth in the introduction to this Agreement.
“Equity Syndication” means the syndication of a portion of the interests held by the Fund directly or indirectly in Eagle Holdings, or if the CHKM Units and/or CMV Units are held directly by the Fund or by another entity directly or indirectly held by the Fund, such other entity or such CHKM Units and/or CMV Units.
“Feeder Vehicle” means any Person organized by the Eagle 4 or one of its Affiliates for the purposes of investing in the Company as a member and designated a “Feeder Vehicle” by the Eagle 4 in its sole discretion.
“Fund” means any of Global Infrastructure Partners II-A, L.P., a Delaware limited partnership, Global Infrastructure Partners II-A1, L.P., a Guernsey limited partnership, Global Infrastructure Partners II-B, L.P., a Guernsey limited partnership, Global Infrastructure Partners II-B Feeder Vehicle, L.P., a Guernsey limited partnership, Global Infrastructure Partners II-C, L.P., a Guernsey limited partnership, GIP II-C Intermediate, L.P., a Guernsey limited partnership, Global Infrastructure Partners II-D1, L.P., a Scottish limited partnership, GIP II-D1 Intermediate (Scot), L.P., a Scottish limited partnership and any successor thereto, and each of their respective alternative investment vehicles, parallel funds and feeder vehicles.
“Fund Owner” means any Fund or any of its co-investment partnerships, related vehicles or portfolio companies, in each case interests in which are not owned directly or indirectly by the Company.
“GP II” has the meaning set forth in the introduction.
“Holding Partnership” means GIP II Eagle 4 Holding, L.P., a Delaware limited partnership.
“Parties” has the meaning set forth in the introduction to this Agreement.
“Person” means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
“Portfolio Company” means each of CMV and CHKM.
“Portfolio Company Documents” means (i) the Third Amended and Restated Limited Liability Company Agreement of CMV, dated as of June 29, 2012, and (ii) the First Amended and Restated Agreement of Limited Company of CHKM, dated as of August 3, 2010.
| 2. | Sales of CMV and CHKM Units. |
In the event that GP II directly or indirectly causes any Fund Owner to dispose (other than in connection with an Equity Syndication or transfers solely among Fund Owners) of all or any portion of the CMV Units and/or the CHKM Units not held by Eagle Holdings, or any direct or indirect interest in any entity other than Eagle Holdings which holds the CMV Units
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and/or the CHKM Units, it shall take all actions necessary to cause Eagle Holdings to dispose of, for the pro rata benefit of its limited partners, the same proportion of its CMV Units and/or its CHKM Units, as applicable, as the CMV Units and/or the CHKM Units (or proportionate interest therein) being disposed of by the Fund Owner at the same time and on the same terms (including as to price) as the Fund Owner. In the event that GP II directly or indirectly causes any Fund Owner to dispose of all or a portion of its interest in Eagle Holdings or any intermediate entity with respect thereto (other than in connection with an Equity Syndication or transfers solely among Fund Owners), it shall take all actions necessary to cause the Holding Partnership to dispose of, on a pro rata basis, the same proportion of its interest in Eagle Holdings as is being disposed of by the Fund Owner at the same time and on the same terms (including as to price) as the Fund Owner. Any disposition of the CMV Units or the CHKM Units by Eagle Holdings shall result in a pro rata distribution of the proceeds of such disposition to the partners of Eagle Holdings.
| 3. | Voting. |
To the extent that Eagle Holdings is entitled to vote on any matters under the Portfolio Company Documents, GP II shall cause Eagle Holdings to cast all of its votes in an identical manner and in a manner consistent with that of any Fund Owner in respect of its interest in the Portfolio Company.
| 4. | Board Designee. |
To the extent that Eagle Holdings is entitled to designate one or more members of the board of managers of CHKM GP, to the extent requested by Eagle 4, it shall designate an individual identified by Eagle 4, provided that such individual is reasonably qualified for service as a member of such board and is approved by GP II, such approval not to be unreasonably withheld.
| 5. | Counterparts. |
This Agreement may be executed by facsimile, “PDF” or other electronic means in counterparts, each of which, when so executed and delivered, shall be an original and together shall constitute one agreement binding upon the Parties hereto.
| 6. | Governing Law. |
This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws. EACH OF THE PARTIES HERETO AGREES THAT THIS AGREEMENT INVOLVES AT LEAST U.S. $100,000.00 AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN EXPRESS RELIANCE UPON 6 DEL. C. §2708. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY CONFIRMS AND AGREES THAT IT IS AND SHALL CONTINUE TO BE (I) SUBJECT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE FEDERAL COURTS SITTING IN THE STATE OF DELAWARE, AND (II) SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE.
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| 7. | Successors. |
Except as otherwise provided herein, this Agreement will inure to the benefit of and be binding upon the Parties and their legal representatives, heirs, successors and assigns, in their capacities as general partners or managing members of the relevant entities to effect the provisions of this Agreement.
| 8. | Third Party Beneficiaries. |
Notwithstanding anything herein or in any other agreement to the contrary, this Agreement is not intended to confer any rights or remedies upon, and shall not be enforceable by any Person other than the actual Parties hereto and their respective successors and permitted assigns.
| 9. | Termination. |
This Agreement shall not be terminated without the written consent of all Parties.
| 10. | Severability. |
Each provision of this Agreement shall be considered severable, and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement that are valid, enforceable and legal.
| 11. | Amendments. |
This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by the parties hereto.
| 12. | Dispute Resolution. |
If the parties hereto are unable to settle any legal action or proceeding with respect to this Agreement through negotiations within thirty (30) days, such legal action or proceeding shall be submitted exclusively to the American Arbitration Association (the “AAA”) for arbitration in New York City, New York. Unless otherwise expressly stated herein, the arbitration shall be conducted in accordance with the AAA’s Commercial Arbitration Rules including the Optional Rules for Emergency Measures of Protection in effect at the time of the submission to arbitration. The arbitral tribunal shall consist of three arbitrators; each party hereto shall appoint one arbitrator and the third arbitrator shall be appointed by both parties hereto with mutual agreement as the presiding arbitrator. If no agreement can be reached within the time period required by the AAA, the presiding arbitrator shall be appointed by the AAA. The arbitral award shall be non-appealable and final and binding upon the parties hereto. Neither party hereto shall be required to give general discovery of documents, but may be required to produce specific, identified documents that are relevant to the dispute. The language of the arbitration shall be English. The parties hereto agree that all information concerning the arbitration (including fact, substance, result and the existence of the arbitration) shall remain confidential and not be disclosed, except as may be required to enforce the arbitral award
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[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the date first above written.
| GIP II EAGLE 4 HOLDING GP, LLC | ||
| By: |
| |
| Name: | ||
| Title: | ||
| GIP II EAGLE HOLDINGS PARTNERSHIP, L.P. | ||
| By: GIP II Eagle Acquisition Holdings GP, LLC, its general partner | ||
| By: |
| |
| Name: | ||
| Title: | ||
| GLOBAL INFRASTRUCTURE GP II, L.P. | ||
| By: Global Infrastructure Investors II, LLC, its general partner | ||
| By: |
| |
| Name: | ||
| Title: | ||
Exhibit 3
AMENDED AND RESTATED MANAGEMENT RIGHTS AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT RIGHTS AGREEMENT (this “Agreement”) is effective as of June 29, 2012, by and among GIP II-B Eagle AIV 1, L.P., a Delaware limited partnership (the “Fund”), GIP II Eagle Holdings Partnership, L.P., a Delaware limited partnership (“GIP II-Eagle Holdings”), GIP II Eagle 2 Holding, L.P., a Delaware limited partnership (“GIP II-Eagle 2”), GIP II Eagle Acquisition Holdings GP, LLC, a Delaware limited liability company (“GIP II Eagle Holdings GP”), Chesapeake Midstream Ventures, L.L.C., a Delaware limited liability company (“CMV”), Chesapeake Midstream GP, L.L.C., a Delaware limited liability company (the “General Partner”), Chesapeake Midstream Partners, L.P., a Delaware limited partnership (the “MLP”), and Chesapeake MLP Operating, L.L.C., formerly known as Chesapeake Midstream Partners, L.L.C., a Delaware limited liability company (the “Company”). Each of the foregoing is referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to that certain Purchase Agreement (as amended from time to time, the “First Company Purchase Agreement”), dated as of June 7, 2012, by and among Chesapeake Midstream Holdings, L.L.C. (“CMH”), GIP II Eagle 1 Holding, L.P., a Delaware limited partnership (“GIP II-Eagle 1”), GIP II-Eagle 2, and GIP II Eagle 3 Holding, L.P., a Delaware limited partnership (“GIP II-Eagle 3” and, collectively with GIP II-Eagle 1 and GIP II-Eagle 2, the “GIP II First Closing Entities”), the GIP II First Closing Entities acquired (i) 28,099,946 Subordinated Units (as defined in the First Company Purchase Agreement) of the MLP, and (ii) 500 CMV Units (as defined in the First Company Purchase Agreement) of CMV;
WHEREAS, pursuant to that certain Purchase Agreement (as amended from time to time, the “Second Company Purchase Agreement”), dated as of June 7, 2012, by and between CMH and GIP II Eagle 4 Holding, L.P., a Delaware limited partnership (“GIP II-Eagle 4”), GIP II-Eagle 4 agreed to acquire (i) 6,438,115 Subordinated Units (as defined in the Second Company Purchase Agreement) of the MLP, and (ii) 33,704,66 Common Units (as defined in the Second Company Purchase Agreement) of the MLP;
WHEREAS, there is a Management Rights Agreement, dated as of June 15, 2012, by and among the Fund, the GIP II First Closing Entities, CMV, the General Partner, the MLP and the Company (the “Original MRA”);
WHEREAS, pursuant to that certain Contribution and Assignment Agreement, dated as of June 25, 2012, by and among the GIP II First Closing Entities, GIP II-Eagle 4 and GIP II-Eagle Holdings, the GIP II First Closing Entities contributed the Subordinated Units and CMV Units so purchased to GIP II-Eagle Holdings, and GIP II-Eagle 4 assigned its right to purchase under the Second Company Purchase Agreement to GIP II-Eagle Holdings;
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WHEREAS, on the date hereof, GIP II-Eagle Holdings is closing on the purchase of the Subordinated Units and Common Units pursuant to the Second Company Purchase Agreement;
WHEREAS, GIP II Eagle Holdings GP is the general partner of GIP II-Eagle Holdings;
WHEREAS, CMV is the sole owner and member of the General Partner;
WHEREAS, the General Partner conducts and manages the MLP’s business and operations;
WHEREAS, the Fund is an owner of equity interests of GIP II-Eagle 2;
WHEREAS, each of CMV, the General Partner, the MLP and the Company wishes to provide the Fund with certain rights, and to set forth their understanding with regard to the operations, control and management of CMV, the General Partner, the MLP and the Company, respectively;
WHEREAS, the Fund has requested to be granted, and each of CMV and the General Partner has agreed to grant to the Fund, certain rights regarding the designation of a member of the board of managers of CMV (the “CMV Board”) and the board of managers of the General Partner;
WHEREAS, the Fund has requested to be granted, and each of CMV, the General Partner, the MLP and the Company has agreed to grant to the Fund, the right to review the books and records of each of CMV, the General Partner, the MLP, the Company and the Company’s subsidiaries and the right to consult with management of each of CMV, the General Partner, the MLP, the Company and the Company’s subsidiaries regarding the operations of CMV, the General Partner, the MLP, the Company and the Company’s subsidiaries; and
WHEREAS, the Parties desire that the Original MRA be amended and restated in its entirety by this Agreement effective as of the Closing under the Second Company Purchase Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
| 1. | Certain Definitions. As used in this Agreement, the following terms shall have the following respective meanings: |
“Beneficial Ownership” means the power, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, to (i) vote, or to direct the voting of, a security; and (ii) dispose, or to direct the disposition of, such security. “Beneficially Owns” shall mean having Beneficial Ownership.
“Books and Records” means the books and records of the applicable entity, including without limitation, financial data (including projections) and operating data covering each of such entities, their businesses, operations and financial performance.
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“CMV LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of CMV, as amended from time to time.
“CMV Manager” means a “Manager” within the meaning of the CMV LLC Agreement.
“Company Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company, as amended from time to time.
“General Partner Director” means a “Director” within the meaning of the GP Agreement.
“GP Agreement” means the Amended and Restated Limited Liability Company Agreement of the General Partner, as amended from time to time.
“MLP Agreement” means the First Amended and Restated Limited Partnership Agreement of the MLP, as amended from time to time.
“Subsidiary” has the meaning set forth in the GP Agreement.
| 2. | Board Rights. |
| (a) | CMV Board Rights. |
(i) The Parties hereby acknowledge, agree and reaffirm that GIP II-Eagle Holdings has certain rights to designate CMV Manager(s) (any CMV Manager designated by GIP II-Eagle Holdings, a “GIP II CMV Manager”) and alternatives to such CMV Manager(s) (a “CMV Alternate”) in the event such CMV Manager is unable to attend to or is otherwise not present at any meeting of the CMV Board, in each case to the extent provided in the CMV LLC Agreement.
(ii) GIP II Eagle Holdings GP hereby agrees that the Fund shall have the right to designate one GIP II CMV Manager and one CMV Alternate thereto.
| (b) | General Partner Board Rights. |
(i) The Parties hereby acknowledge, agree and reaffirm that GIP II-Eagle Holdings has certain rights to designate General Partner Director(s) to the extent provided in the CMV LLC Agreement and/or the GP Agreement (any General Partner Director designated by GIP II-Eagle Holdings, a “GIP II GP Director”).
(ii) GIP II Eagle Holdings GP hereby agrees that the Fund shall have the right to designate one GIP II GP Director.
| 3. | Information, Inspection and Consultation Rights. |
(a) Each of CMV, the General Partner, the MLP and the Company shall keep or cause to be kept at the principal office of such entity appropriate books and records with respect to their respective businesses in accordance with the CMV LLC Agreement, the GP Agreement, the MLP Agreement and the Company Agreement, as applicable. Except to the extent
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necessary to preserve attorney-client or similar privilege of CMV, the General Partner, the MLP or the Company, as applicable, each of CMV, the General Partner, the MLP and the Company shall, and shall cause their Subsidiaries to, provide the Fund with reasonable access to all Books and Records of such entity and its Subsidiaries and allow the Fund to make copies and abstracts thereof at the Fund’s expense.
(b) At the Fund’s request, (i) CMV shall deliver or cause to be delivered to the Fund any and all reports set forth in Section 6.2 of the CMV LLC Agreement (or any successor provision), (ii) the General Partner shall deliver or cause to be delivered to the Fund any and all reports set forth in Section 6.2 of the GP Agreement (or any successor provision), (iii) the MLP shall deliver or cause to be delivered to the Fund any and all reports set forth in Section 8.3 of the MLP Agreement (or any successor provision), and (iv) the Company shall deliver or cause to be delivered to the Fund such similar financial statements or reports with respect to the Company as may reasonably be requested by the Fund.
(c) Except to the extent necessary to preserve attorney-client or similar privilege of CMV, the General Partner, the MLP or the Company, as applicable, each of CMV, the General Partner, the MLP and the Company hereby agrees that the Fund, and any accountants, attorneys, financial advisors and other representatives of the Fund, may from time to time at the Fund’s sole expense for any reasonable purpose, visit and inspect the properties of such entity, examine (and make copies and extracts of) such entity’s books, records and documents of any kind, and discuss the affairs of such entity with its employees, independent accountants, all at such reasonable times as the Fund may request upon reasonable notice.
(d) Each of CMV, the General Partner, the MLP and the Company hereby agrees that the Fund shall have the right to consult from time to time with management of such entity and its subsidiaries at their respective places of business regarding the affairs, finances and accounts of such entity, at such reasonable times as may be reasonably requested by the Fund.
(e) Nothing contained herein shall in any way limit or abridge any other rights that the Fund (or any affiliate thereof) may have with respect to the financial condition, operations, business or corporate affairs of any of CMV, the General Partner, the MLP or the Company pursuant to any other agreement, including, without limitation, the CMV LLC Agreement, the GP Agreement, the MLP Agreement and the Company Agreement.
| 4. | Acceptance and Acknowledgment. |
Each of CMV, the General Partner, the MLP and the Company hereby acknowledges and agrees to the rights granted to the Fund hereunder. Each of CMV, the General Partner, the MLP and the Company further acknowledges and agrees that the Fund shall have the right, in its sole discretion, to delegate to one or more individuals or other persons who are affiliates of the members of the Fund (the “GIP II Members”) the right and authority to exercise the Fund’s management rights hereunder.
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| 5. | Miscellaneous. |
(a) Each Party agrees to execute and deliver such documents and take such further actions as may be necessary or desirable to effect the purposes and objectives of this Agreement.
(b) The rights granted under this Agreement are intended to satisfy the requirement of management rights for purposes of qualifying the Fund’s direct and indirect ownership interests in each of CMV, the General Partner, the MLP and the Company as a “venture capital investment” for purposes of the regulations issued by the United States Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the United States Code of Federal Regulations (the “Plan Asset Regulation”), to the extent that such ownership interests may be considered ownership interests in operating companies (other than venture capital operating companies), within the meaning of the Plan Asset Regulation. If the Fund subsequently determines that such rights are not satisfactory for such purposes, the Parties shall reasonably cooperate in good faith to agree upon mutually satisfactory management rights that are intended by the Fund and all other entities affiliated therewith to satisfy the Plan Asset Regulation.
(c) This Agreement shall automatically terminate with respect to CMV, the General Partner, the MLP or the Company, as applicable, at such time as any affiliate of the Fund ceases to Beneficially Own any equity interests in such entity.
(d) All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if sent by recognized overnight delivery service, return receipt requested, to the following Parties at the following addresses or to such other parties and at such other addresses as shall be specified by like notices:
if to the Fund or GIP II-Eagle Holdings, GIP II Eagle Holdings GP or the GIP II Members, at:
Global Infrastructure Management, LLC
12 East 49th Street, 38th Floor
New York, NY 10017
Attn: William Brilliant
Fax: (646) 282-1580
with a copy to:
Global Infrastructure Management LLP
The Peak
5 Wilton Road
London
United Kingdom
Attn: Joseph Blum
Fax: +44 207 798 0530
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with a copy to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Attn: Edward Sonnenschein
Andrea Schwartzman
Fax: (212) 751-4864
if to CMV, the General Partner, the MLP or the Company, at:
Chesapeake Midstream GP, L.L.C.
900 N.W. 63rd Street
Oklahoma City, Oklahoma 73118
Attn: J. Mike Stice
Fax: (405) 849-6134
with a copy to:
Global Infrastructure Management, LLC
12 East 49th Street, 38th Floor
New York, NY 10017
Attn: William Brilliant
Fax: (646) 282-1580
with a copy to:
Global Infrastructure Management LLP
The Peak
5 Wilton Road
London
United Kingdom
Attn: Joseph Blum
Fax: +44 207 798 0530
with a copy to:
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Attn: Edward Sonnenschein
David Taub
Fax: (212) 751-4864
Notice so given shall be deemed to be given and received on the second business day after sending by recognized overnight delivery service, return receipt requested.
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(e) The Parties acknowledge and agree that the breach of the provisions of this Agreement by any Party could not be adequately compensated with monetary damages, and the Parties agree, accordingly, that injunctive relief and specific performance shall be appropriate remedies to enforce the provisions of this Agreement and waive any claim or defense that there is an adequate remedy at law for such breach; provided, however, that nothing herein shall limit the remedies herein, legal or equitable, otherwise available and all remedies herein are in addition to any remedies available at law or otherwise.
(f) If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under any applicable law, then such contravention or invalidity shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it legal, valid and enforceable, and if no such modification shall render it legal, valid and enforceable then this Agreement shall be construed as if not containing the provision held to be invalid, and the rights and obligations of the Parties shall be construed and enforced accordingly.
(g) This Agreement shall inure to the benefit of, and be binding upon, the Parties, and their respective successors and permitted assigns (including, without limitation, the GIP II Members).
(h) The Fund agrees to hold in confidence and not disclose to any third party (other than its general partner, management company, legal counsel and accountants) any confidential information provided to or learned by the Fund in connection with the Fund’s rights under this Agreement; provided, however, that such information may be disclosed to the GIP II Members so long as one or more of the GIP II Members Beneficially Owns any equity interest in any of CMV, the General Partner, the MLP or the Company.
(i) The headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and do not constitute a part of this Agreement.
(j) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws.
(k) The Parties agree that the provisions of Article XI of the Second Company Purchase Agreement are hereby incorporated into this Agreement as if set forth fully herein and shall apply to this Agreement mutatis mutandis as if set forth in full herein.
(l) This Agreement may be executed in any number of counterparts and by the Parties hereto in separate counterparts, with the same effect as if each Party had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument.
(m) When the context requires, the gender of all words used herein shall include the masculine, feminine and neuter, and the number of all words shall include the singular and plural.
(n) Effective as of the Closing under the Second Company Purchase Agreement, this Agreement replaces and supersedes the Original MRA and the Director Agreement, dated as of June 25, 2012, by and among the Fund, GIP II-Eagle Holdings, GIP II-Eagle 2, GIP II Eagle Holdings GP and CMV.
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[Signature pages follow]
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IN WITNESS WHEREOF, the Parties have caused this Management Rights Agreement to be executed as of the date first above written.
| CHESAPEAKE MIDSTREAM VENTURES, L.L.C. | ||
| By: |
| |
| Name: | J. Mike Stice | |
| Title: | Chief Executive Officer | |
| CHESAPEAKE MIDSTREAM GP, L.L.C. | ||
| By: |
| |
| Name: | J. Mike Stice | |
| Title: | Chief Executive Officer | |
| CHESAPEAKE MIDSTREAM PARTNERS, L.P. | ||
| By: Chesapeake Midstream GP, L.L.C, its General Partner | ||
| By: |
| |
| Name: | J. Mike Stice | |
| Title: | Chief Executive Officer | |
| CHESAPEAKE MLP OPERATING, L.L.C. | ||
| By: |
| |
| Name: | J. Mike Stice | |
| Title: | Chief Executive Officer | |
Signature Page to Management Rights Agreement
| GIP II-B EAGLE AIV 1, L.P. | ||
| By: Global Infrastructure GP II, L.P., its general partner | ||
| By: Global Infrastructure Investors II, LLC, its general partner | ||
| By: |
| |
| Name: | ||
| Title: | ||
| GIP II EAGLE HOLDINGS PARTNERSHIP, L.P. | ||
| By: GIP II Eagle Acquisition Holdings GP, LLC, its general partner | ||
| By: |
| |
| Name: | ||
| Title: | ||
| GIP II EAGLE 2 HOLDING, L.P. | ||
| By: GIP II Eagle 2 Holding GP, LLC, its general partner | ||
| By: |
| |
| Name: | ||
| Title: | ||
Signature Page to Management Rights Agreement| ||
| GIP II EAGLE ACQUISITION HOLDINGS GP, LLC | ||||
| By: |
| |||
| Name: | ||||
| Title: | ||||
Signature Page to Management Rights Agreement| ||