UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 13, 2012
AmeriGas Partners, L.P.
(Exact name of registrant as specified in its charter)
Delaware | 1-13692 | 23-2787918 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
460 No. Gulph Road, King of Prussia, Pennsylvania | 19406 | |||
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (610) 337-7000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The Board of Directors of AmeriGas Propane, Inc., the general partner of AmeriGas Partners, L.P. (the Partnership) approved an amendment dated as of March 13, 2012 (Amendment No. 1) to the Partnerships Fourth Amended and Restated Agreement of Limited Partnership (the Partnership Agreement). Amendment No. 1 adds a new Section 9.5 to the Partnership Agreement, which confirms the Partnerships compliance with Section 704 of the Internal Revenue Code of 1986, as amended (the Code), and the Treasury Regulations promulgated thereunder.
The description of Amendment No. 1 in this Item 5.03 is qualified in its entirety by reference to the copy of Amendment No. 1 filed as Exhibit 3.1 to this report, which is incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
3.1 Amendment No. 1 to Fourth Amended and Restated Agreement of Limited Partnership of AmeriGas Partners, L.P. dated as of March 13, 2012.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: March 13, 2012 | ||||||
AmeriGas Partners, L.P. | ||||||
By: John S. Iannarelli | ||||||
By: | /s/ John S. Iannarelli | |||||
Name: John S. Iannarelli | ||||||
Title: Vice President - Finance and Chief Financial Officer of AmeriGas Propane, Inc., the general partner of AmeriGas Partners, L.P. |
Exhibit Index
Exhibit |
Description | |
3.1 | Amendment No. 1 to Fourth Amended and Restated Agreement of Limited Partnership of AmeriGas Partners, L.P. dated as of March 13, 2012. |
Exhibit 3.1
AMENDMENT NO. 1 TO
FOURTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
AMERIGAS PARTNERS, L.P.
This Amendment No. 1 to the Fourth Amended and Restated Agreement of Limited Partnership of AmeriGas Partners, L.P. (the Partnership), dated as of March 13, 2012 (this Amendment), is entered into by AmeriGas Propane, Inc., a Pennsylvania corporation, as the General Partner, pursuant to authority granted to the General Partner in Section 15.1 of the Fourth Amended and Restated Agreement of Limited Partnership of AmeriGas Partners, L.P., dated as of July 27, 2009 (the Partnership Agreement). Capitalized terms used herein and not otherwise defined herein are used as defined in the Partnership Agreement.
WHEREAS, pursuant to Section 15.1(d) of the Partnership Agreement, each Limited Partner agreed that the General Partner, without the approval of any Limited Partner or Assignee, may amend any provision of the Partnership Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect a change that, in the sole discretion of the General Partner, (i) does not adversely affect the Limited Partners in any material respect or (ii) is required to effect the intent of the provisions of the Partnership Agreement; and
WHEREAS, the General Partner has determined that the change reflected in this Amendment does not adversely affect the Limited Partners in any material respect, and is required to effect the intent of the provisions of the Partnership Agreement.
NOW, THEREFORE, the Partnership Agreement is hereby amended as follows:
1. | A new Section 9.5 is added to read as follows: |
9.5 TAX MATTERS OVERRIDE
Notwithstanding anything to the contrary in this Agreement, it is the intention of the Partners that the allocations to the Partners required by Section 9.1 of this Agreement be respected pursuant to Section 704 of the Code and the Treasury Regulations promulgated thereunder (the Regulations) and this Agreement is hereby modified as necessary to achieve such a result. More specifically, this Agreement is hereby modified to meet the alternative test for economic effect set forth in Regulation Section 1.704-1(b)(2)(ii)(d). For the avoidance of doubt, this test requires and shall be applied so that (i) the Partnership maintains capital accounts for the Partners in accordance with Regulation Section 1.704-1(b)(2), (ii) liquidating distributions to the Partners are made in accordance with their positive capital account balances in the manner required by Regulation Section 1.704-1(b)(2)(ii)(b)(2) (the Tax Liquidation Requirement), (iii) no Partner is obligated to restore an adjusted deficit capital account balance other than the General Partner and
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only then as required by the Delaware Act, and (iv) a qualified income offset is provided for as required by Regulation Section 1.704-1(b)(2)(ii)(d)(3). This Agreement is hereby further modified to comply with the nonrecourse liability related allocation rules of Regulation Section 1.704-2 (including the minimum gain and partner minimum gain chargeback requirements of such Regulations). In applying this Section 9.5, the General Partner shall make such allocations of Section 704(b) book items as are necessary to as closely produce the tax allocations described in Section 9.1 of this Agreement taking into account adjustments for the application of Section 704(c) of the Code and certain customary conventions used by master limited partnerships to achieve economic uniformity of Partnership Units. Immediately prior to an event triggering the Tax Liquidation Requirement, the General Partner shall make such allocations of income, gain, loss and deduction, as well as change the characterization of distribution rights to Section 707(c) guaranteed payments, as it deems necessary to achieve Partner capital account balances that will permit, to the fullest extent possible, distributions that are equal to the distributions that would have been made to the Partners pursuant to Section 5.7 of the Agreement had the Tax Liquidation Requirement not been part of this Agreement. In making such allocations, the General Partner shall seek to produce economic uniformity among Common Units in a manner that is customary and necessary for such Common Units to be freely tradable on a securities exchange.
A. Applicable Law. This Amendment will be governed by and construed in accordance with the laws of the State of Delaware.
[signature page follows]
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IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the date first set forth above.
GENERAL PARTNER: | ||
AMERIGAS PROPANE, INC. | ||
By: | /s/ John S. Iannarelli | |
Name: John S. Iannarelli | ||
Title: Vice President-Finance and Chief Financial Officer |
SIGNATURE PAGE
AMERIGAS PARTNERS L.P.
AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP
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