-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M2V8PZZtTLHO7Jq1lXG9brxbHGrUz6AxBoqMPcFi20+ZP+h0hszxP0t/8cFeV6iB +vhcbygT5q8zm/8qP8x3kg== 0000950130-97-003731.txt : 19970819 0000950130-97-003731.hdr.sgml : 19970819 ACCESSION NUMBER: 0000950130-97-003731 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19970812 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19970818 SROS: NASD SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BORDEN CHEMICALS & PLASTICS LIMITED PARTNERSHIP /DE/ CENTRAL INDEX KEY: 0000821202 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS, MATERIALS, SYNTH RESINS & NONVULCAN ELASTOMERS [2821] IRS NUMBER: 311269627 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09699 FILM NUMBER: 97665921 BUSINESS ADDRESS: STREET 1: HIGHWAY 73 CITY: GEISMAR STATE: LA ZIP: 70734 BUSINESS PHONE: 5046736121 MAIL ADDRESS: STREET 1: PO BOX 427 STREET 2: 180 EAST BROAD STREET 25TH FLOOR CITY: GERSMAR STATE: LA ZIP: 70734 FORMER COMPANY: FORMER CONFORMED NAME: BORDEN CHEMICALS & PLASTICS LIMITED PARTNERSHIP DATE OF NAME CHANGE: 19920703 8-K 1 FORM 8-K ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 - -------------------------------------------------------------------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported) August 14, 1997 Borden Chemicals and Plastics Limited Partnership - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 1-9699 31-1269627 - --------------------------- -------------------- ---------------------- (State of incorporation) (Commission File (I.R.S. Employer Number) Identification No.) Highway 73 Geismar, Louisiana 70734 - ------------------------------------------ ----------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (614) 225-4482 ================================================================================ Item 5. Other Events. ------------ On August 14, 1997, Borden Chemicals and Plastics Limited Partnership (the "Registrant") announced that the Board of Directors of BCP Management, ---------- Inc., the general partner (the "General Partner") of the Registrant, had --------------- terminated a previously approved plan pursuant to which the existing ownership interests in the Registrant would have been exchanged for shares of a newly formed corporation. A press release announcing the termination of the conversion is attached hereto as Exhibit 99.1. In light of the termination of the conversion plan, the Board of Directors of the General Partner of the Registrant also approved certain technical modifications to a Rights Agreement between the Registrant and Harris Trust and Savings Bank. The First Amendment to the Rights Agreement (the "Rights ------ Amendment") is attached hereto as Exhibit 99.2. A Second Amendment to the - --------- Amended and Restated Agreement of Limited Partnership of the Registrant incorporating the terms of the Rights Amendment is attached as Exhibit 99.3. Item 7. Exhibits. -------- 99.1 Press Release dated August 14, 1997. 99.2 First Amendment to Rights Agreement, dated as of August 14, 1997, between the Registrant and Harris Trust and Savings Bank. 99.3 Second Amendment to the Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of August 14, 1997, entered into by and among the General Partner and the limited partners of the Partnership. -2- SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized. BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP By: BCP Management, Inc., its general partner By: /s/ Lawrence L. Dieker --------------------------------------------- Name: Lawrence L. Dieker Title: Vice President and General Counsel DATED: August 18, 1997 -3- EXHIBIT INDEX Exhibit No. Description - ----------- ----------- 99.1 Press Release dated August 14, 1997. 99.2 First Amendment to Rights Agreement, dated as of August 14, 1997, between the Registrant and Harris Trust and Savings Bank. 99.3 Second Amendment, dated as of August 14, 1997, to the Amended and Restated Agreement of Limited Partnership, dated as of December 15, 1988, of the Partnership, entered into by and among the General Partner and the limited partners of the Partnership. -4- EX-99.1 2 PRESS RELEASE EXHIBIT 99.1 FOR IMMEDIATE RELEASE Contact: August 14, 1997 Peter F. Loscocco 614/225-4482 New Law Provides Continued Exemption From Corporate Tax BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP TERMINATES PLAN TO CONVERT TO CORPORATE FORM COLUMBUS, OHIO (August 14, 1997) -- Prompted by a recent change in tax laws governing publicly traded limited partnerships, the board of directors of BCP Management, Inc., the general partner of Borden Chemicals and Plastics Limited Partnership (NYSE; BCU), today voted to terminate its previously announced plan to convert ownership interests in the partnership into shares of a newly formed corporation. Under tax laws in effect when the decision was made earlier this year to convert to corporate form, the partnership's exemption from federal income taxes would have expired at the end of 1997. Borden Chemicals and Plastics would have been required to pay corporate tax beginning in 1998. Through a provision in the tax bill signed into law by President Clinton on August 5, the exemption of publicly traded limited partnerships form federal income taxes is made permanent, and a new 3.5 percent tax is to be levied on gross income beginning January 1, 1998. Under the new law, publicly traded partnerships retain the ability to convert to corporate form in the future, should they desire. "We have said all along that our decision to convert to corporate form was in the best interest of our unitholders, based on existing tax law and the year- end expiration of our tax exemption," said Joseph M. Saggese, chairman, president and chief executive officer for the general partner. "Now that the tax law has changed, the benefits to our unitholders of 2 remaining a limited partnership at this time -- even with the 3.5 percent tax -- outweigh those of the proposed conversion." With the board's action, Borden Chemicals and Plastics will continue to operate as a publicly traded partnership. The partnership will continue its policy of distributing available cash at the end of each quarter to its unitholders, although beginning in 1998, the amount of available cash will be reduced by the new 3.5 percent tax. Borden Chemicals and Plastics Limited Partnership manufactures polyvinyl chloride resins, methanol and derivatives, and nitrogen products at facilities located in Geismar and Addis, La, and Illiopolis, Ill. BCP Management, Inc. a wholly owned subsidiary of Borden, Inc., serves as its general partner. EX-99.2 3 FIRST AMENDMENT TO RIGHTS AGREEMENT EXHIBIT 99.2 FIRST AMENDMENT TO RIGHTS AGREEMENT FIRST AMENDMENT, dated as of August 14, 1997 (this "Amendment"), to --------- the Rights Agreement, dated as of April 8, 1997 (the "Rights Agreement"), among ---------------- Borden Chemicals and Plastics Limited Partnership and Harris Trust and Savings Bank, as Rights Agent. W I T N E S S E T H: ------------- ----- WHEREAS, in light of the termination of the Agreement and Plan of Conversion as of the date hereof, the General Partner desires to amend certain provisions of the Rights Agreement upon the terms and subject to the conditions set forth herein and pursuant to the terms of the Rights Agreement, the General Partner has directed the Rights Agent to enter into this Amendment; NOW, THEREFORE, the parties hereto hereby agree as follows: 1. Definitions. All terms defined in the Rights Agreement shall ----------- have such defined meanings when used herein unless otherwise defined herein. 2. Amendment of Section 1. Section 1 of the Rights Agreement is ---------------------- hereby amended by deleting paragraph (c) in its entirety and adding the following new paragraph (c): "(c) [RESERVED]". 3. Amendment of Section 3. Section 3 of the Rights Agreement is ---------------------- hereby amended by deleting the penultimate sentence of paragraph (a) in its entirety. 4. Amendment of Section 7. Paragraph (a) of Section 7 of the Rights ---------------------- Agreement is hereby amended by (x) deleting the clause "and (iv) immediately prior to the Effective Time of the Merger (as defined in the Agreement and Plan of Conversion)" therein and (y) by deleting the comma immediately preceding clause (iii) therein and inserting the word "and" in lieu thereof. 5. Amendment of Section 31. Section 31 of the Rights Agreement is ----------------------- hereby amended by deleting it in its entirety and inserting in lieu thereof the following new Section 31: "Section 31. [RESERVED]". 6. Amendment of Exhibit A. Exhibit A to the Rights Agreement is ---------------------- hereby amended by deleting the first sentence in the legend in its entirety and inserting in lieu thereof the following new first sentence: "NOT EXERCISABLE AFTER APRIL 8, 2007 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS." 7. Amendment of Exhibit B. Exhibit B to the Rights Agreement is ---------------------- hereby amended by deleting the fourth full paragraph following the legend thereof in its entirety and inserting in lieu thereof the following new paragraph: 2 "The Rights are not exercisable until the Distribution Date. The Rights will expire on April 8, 2007 (the "Final Expiration Date"), unless the Final Expiration Date is extended or unless the Rights are earlier redeemed or exchanged by the Partnership, in each case as described below." 8. Conditions to Effectiveness. This Amendment shall become --------------------------- effective on the date on which a duly authorized officer of each party shall have duly executed and delivered counterparts of this Amendment to the other party. 9. Limited Effect. Except as expressly amended herein, the Rights -------------- Agreement shall continue to be, and shall remain, in full force and effect. 10. Counterparts. This Amendment may be executed by one or more of ------------ the parties hereto in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. This Amendment may be executed by facsimile signatures. 11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND ------------- CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE. 3 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested, all as of the day and year first above written. Attest: BORDEN CHEMICALS AND PLASTICS LIMITED PARTNERSHIP By: BCP Management Inc., its general partner By: /s/ C. Douglas MacLeod By: /s/ Lawrence L. Dieker ---------------------------- ------------------------------- Name: C. Douglas MacLeod Name: Lawrence L. Dieker Title: Vice President Title: Vice President, General Counsel and Secretary Attest: HARRIS TRUST AND SAVINGS BANK By: /s/ Bernetta Young By: /s/ Lorraine Rodewald ---------------------------- ------------------------------- Name: Bernetta J. Young Name: Lorraine Rodewald Title: Trust Officer Title: Assistant Vice President EX-99.3 4 SECOND AMENDMENT, DATED AS OF AUGUST 14, 1997 EXHIBIT 99.3 SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP This SECOND AMENDMENT, dated as of August 14, 1997 (this "Amendment"), --------- to the Amended and Restated Agreement of Limited Partnership, dated as of December 15, 1988, of Borden Chemicals and Plastics Limited Partnership, a Delaware limited partnership (the "Partnership"), as amended by the First ----------- Amendment thereto, dated as of April 8, 1997 (as so amended and as further amended, supplemented or modified from time to time, the "Partnership ----------- Agreement") is entered into by and among BCP Management, Inc., a Delaware corporation, as general partner of the Partnership, and those Persons listed in the books and records of the Partnership as limited partners of the Partnership. W I T N E S S E T H: ------------------- WHEREAS, the Partnership is a limited partnership formed pursuant to the provisions of the Delaware Revised Uniform Limited Partnership Act, 6 Del. ---- C. (S) 17-101, et seq., as amended (the "Act"), and the Partnership Agreement; - -- -- ---- --- WHEREAS, pursuant to Section 4.4 of the Partnership Agreement, the General Partner is authorized to cause the Partnership to issue any type of equity security the Partnership may lawfully issue for any Partnership purpose, at any time or from time to time, to the Partners or to other Persons for such consideration and on such terms and conditions as shall be established by the General Partner in its sole discretion, all without the approval of any Limited Partners; WHEREAS, pursuant to Sections 4.4(b) and 15.1 of the Partnership Agreement, the General Partner may, without the approval of the Limited Partners, amend the Partnership Agreement in any manner which it deems appropriate or necessary to provide for each such issuance; WHEREAS, the Board of Directors of the General Partner has determined that it is fair and reasonable and in the best interests of the Partnership and the holders of its Units that the Partnership (i) enter into the First Amendment to Rights Agreement, substantially in the form of Exhibit A to this Amendment (the "Rights Amendment"), and (ii) reflect such Rights Amendment in the ---------------- Partnership Agreement by entering into this Amendment. NOW, THEREFORE, in consideration of the covenants, conditions and agreements contained herein, and other good, sufficient and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby amend the Partnership Agreement as follows: 1. Defined Terms. Capitalized terms used but not defined herein ------------- shall have the meanings given to them in the Partnership Agreement 2 2. Amendment to Section 18.1 of the Partnership Agreement. Section ------------------------------------------------------ 18.1 of the Partnership Agreement is hereby amended by inserting on the sixth line thereof after the words "named therein" and before the parenthetical on such line the following: ", as amended by the First Amendment to Rights Agreement, dated as of August 14, 1997, and as the same may be amended, supplemented or otherwise modified from time to time in accordance with the provisions thereof" 3. Amendment to Exhibit A to the Partnership Agreement. Exhibit A --------------------------------------------------- to the Partnership Agreement is hereby amended by inserting at the end thereof Exhibit A to this Amendment. 4. No Other Amendments; Confirmation. Except as expressly amended, --------------------------------- modified and supplemented hereby, the provisions of the Partnership Agreement are and shall remain in full force and effect. 5. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF ------------- THE PARTIES TO THE PARTNERSHIP AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. 6. Binding Effect. The covenants and agreements contained herein -------------- shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns. 3 IN WITNESS WHEREOF, the General Partner has caused this Amendment to be duly executed and delivered by one of its proper and duly authorized officers as of the day and year first above written. BCP MANAGEMENT, INC. By: /s/ Lawrence L. Dieker --------------------------------- Name: Lawrence L. Dieker Title: Vice President, General Counsel and Secretary LIMITED PARTNERS: All Limited Partners now and hereafter admitted as limited partners of the Partnership, pursuant to Powers of Attorney and authorizations now and hereafter executed in favor of, and granted and delivered to, the General Partner: By: BCP Management, Inc. By: /s/ Lawrence L. Dieker ------------------------------ Name: Lawrence L. Dieker Title: Vice President, General Counsel and Secretary -----END PRIVACY-ENHANCED MESSAGE-----