SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Under the Securities Exchange Act of 1934*
(Amendment #5)
Plains All American Pipeline, L.P.
(Name of Issuer)
Common Units
(Title of Class of Securities)
726503105
------------------------
(CUSIP Number)
Paul G. Allen
David N. Capobianco
Vulcan Energy Corporation
Vulcan Capital Private Equity Inc.
Vulcan Capital Private Equity I LLC
505 Fifth Avenue S, Suite 900
Seattle, Washington 98104
(206) 342-2000
Vulcan Energy Corporation
Vulcan Energy GP Holdings Inc.
700 Louisiana, Suite 4150
Houston, Texas 77002
(713) 579-5000
August 12, 2005
(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 Rule 13d-1(e), 13d-1(f) or 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 Rule 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 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).
Continued on following page(s)
CUSIP NO. 726540503
============ ==================================================================
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Paul G. Allen
------------ ------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
------------ ------------------------------------------------------------------
3 SEC USE ONLY
------------ ------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ ------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
------------ ------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
------------------------------------------------- -----------------------------
7 SOLE VOTING POWER: 0
-------- -----------------------------
8 SHARED VOTING POWER:
NUMBER OF 13,688,400 Common Units
SHARES
BENEFICIALLY
OWNED BY -------- -----------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
PERSON -------- -----------------------------
WITH 10 SHARED DISPOSITIVE POWER:
13,688,400 Common Units
------------ ------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,688,400 Common Units
------------ ------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
------------ ------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.17% of Common Units
------------ ------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
============ ==================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
============ ==================================================================
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
David N. Capobianco
------------ ------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
------------ ------------------------------------------------------------------
3 SEC USE ONLY
------------ ------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ ------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
------------ ------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
------------------------------------------------- -----------------------------
7 SOLE VOTING POWER: 0
-------- -----------------------------
8 SHARED VOTING POWER: 0
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY -------- -----------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
PERSON -------- -----------------------------
WITH 10 SHARED DISPOSITIVE POWER: 0
------------ ------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
------------ ------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [X]
EXCLUDES CERTAIN SHARES*
------------ ------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0% of Common Units
------------ ------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
============ ==================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
============ ==================================================================
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Vulcan Capital Private Equity Inc.
------------ ------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
------------ ------------------------------------------------------------------
3 SEC USE ONLY
------------ ------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ ------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
------------ ------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
------------------------------------------------- -----------------------------
7 SOLE VOTING POWER: 0
-------- -----------------------------
8 SHARED VOTING POWER:
NUMBER OF 1,298,280 Common Units
SHARES
BENEFICIALLY
OWNED BY -------- -----------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
PERSON -------- -----------------------------
WITH 10 SHARED DISPOSITIVE POWER:
1,298,280 Common Units
------------ ------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,298,280 Common Units
------------ ------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
------------ ------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.91%
------------ ------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
============ ==================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
============ ==================================================================
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Vulcan Capital Private Equity I LLC
------------ ------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
------------ ------------------------------------------------------------------
3 SEC USE ONLY
------------ ------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ ------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
------------ ------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
------------------------------------------------- -----------------------------
7 SOLE VOTING POWER: 0
-------- -----------------------------
8 SHARED VOTING POWER:
NUMBER OF 1,298,280 Common Units
SHARES
BENEFICIALLY
OWNED BY -------- -----------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
PERSON -------- -----------------------------
WITH 10 SHARED DISPOSITIVE POWER:
1,298,280 Common Units
------------ ------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,298,280 Common Units
------------ ------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
------------ ------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.91%
------------ ------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
============ ==================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT
============ ==================================================================
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Vulcan Energy Corporation
------------ ------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
------------ -----------------------------------------------------------------
3 SEC USE ONLY
------------ ------------------------------------------------------------------
4 SOURCE OF FUNDS*
N/A
------------ ------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
------------ ------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
------------------------------------------------- -----------------------------
7 SOLE VOTING POWER: 0
-------- -----------------------------
8 SHARED VOTING POWER:
NUMBER OF 12,390,120 Common Units
SHARES
BENEFICIALLY
OWNED BY -------- -----------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
PERSON -------- -----------------------------
WITH 10 SHARED DISPOSITIVE POWER:
12,390,120 Common Units
------------ ------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,390,120 Common Units
------------ ------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
------------ ------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.26% of Common Units
------------ ------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
============ ==================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Introductory Note
This fifth amendment to the Schedule 13D amends the Schedule 13D
filed with the Securities and Exchange Commission (the "SEC") on December 3,
1993, as amended on July 3, 2001, July 23, 2004, October 13, 2004 and December
20, 2004. This fifth amendment is filed by Paul G. Allen, David N. Capobianco,
Vulcan Capital Private Equity Inc., a Delaware corporation ("Vulcan Capital
Inc."), Vulcan Capital Private Equity I LLC, a Delaware limited liability
company ("Vulcan Capital LLC"), and Vulcan Energy Corporation, a Delaware
corporation ("Vulcan Energy," and collectively, the "Reporting Persons") which
is successor by merger to Plains Holdings II Inc., a Delaware corporation
which was successor by merger to Plains Holdings Inc., a Delaware corporation
which was successor by merger to Plains Resources Inc., a Delaware
corporation, with respect to the Common Units of Plains All American Pipeline,
L.P. (the "Issuer"), the principal executive offices of which are located at
333 Clay St., Suite 1600, Houston TX, 77002. Capitalized terms not otherwise
defined herein shall have the meaning ascribed thereto in the Schedule 13D.
The Reporting Persons have entered into a Joint Filing Agreement,
dated as of September 9, 2005, a copy of which is attached hereto as Exhibit
99(b). Neither the fact of this filing nor anything contained herein shall be
deemed an admission by the Reporting Persons that they constitute a "group" as
such term is used in Section 13(d)(1)(k) of the rules and regulations under
the Exchange Act.
Item 2. Identity and Background
Item 2 is amended and restated in its entirety as follows:
a. Paul G. Allen
Paul G. Allen is a natural person whose principal business address is
505 Fifth Avenue S, Suite 900, Seattle, Washington 98104. Mr. Allen owns
approximately 91.11% of the outstanding common stock of Vulcan Energy. Mr.
Allen is the sole stockholder and a director of Vulcan Capital Inc. Mr. Allen
is a citizen of the United States.
During the last five years, Mr. Allen has not been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he is or was subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
b. David N. Capobianco
David N. Capobianco is a natural person whose principal business
address is 505 Fifth Avenue S, Suite 900, Seattle, Washington 98104. Mr.
Capobianco is the Chairman of the Board and Vice President of Vulcan Energy
and the President and a director of Vulcan Energy GP. Mr. Capobianco is a
citizen of the United States.
During the last five years, Mr. Capobianco has not been convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors)
or been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he is or was subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
c. Vulcan Capital Private Equity Inc.
Vulcan Capital Inc. is a corporation formed under the laws of the
state of Delaware and was formed for the purpose of managing Vulcan Capital
Private Equity Management I LLC ("Vulcan Capital Management"), a Delaware
limited liability company and the manager of Vulcan Capital LLC, which holds
1,298,280 Common Units of the Issuer. Vulcan Capital Inc. is located at 505
Fifth Avenue S, Suite 900, Seattle, Washington 98104. Vulcan Capital Inc.'s
directors are Mr. Allen and Ms. Patton. Vulcan Capital Inc.'s executive
officers are:
Name Office
Jo Allen Patton President and Chief Executive Officer
Lance Conn Vice President
Joseph D. Franzi Vice President
Nathanial T. Brown Vice President, Treasurer and Secretary
The principal business address of each of the directors and executive
officers of Vulcan Capital Inc. is: Vulcan Capital Private Equity Inc., 505
Fifth Avenue S, Suite 900, Seattle, Washington 98104.
None of Vulcan Capital Inc.'s nor, to Vulcan Capital Inc.'s
knowledge, any of its directors or executive officers have during the last
five years been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
he or she is or was subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to such
laws.
To the knowledge of Vulcan Capital Inc., each of Vulcan Capital
Inc.'s directors and executive officers is a citizen of the United States.
d. Vulcan Capital Private Equity I LLC
Vulcan Capital LLC is a limited liability company formed under the
laws of the state of Delaware and holds 1,298,280 Class C Common Units of the
Issuer, which have converted into Common Units of the Issuer (see Item 4
below). Vulcan Capital LLC's manager is Vulcan Capital Management, the
managing member of which is Vulcan Capital Inc. Vulcan Capital LLC and Vulcan
Management LLC are located at 505 Fifth Avenue S, Suite 900, Seattle,
Washington 98104.
Neither Vulcan Capital LLC nor, to Vulcan Capital LLC's knowledge,
Vulcan Capital Management have during the last five years been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which he or she is or was subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
e. Vulcan Energy Corporation
Vulcan Energy is a corporation formed under the laws of the state of
Delaware and was formed for the purpose of engaging in the business of
gathering, transportation, terminalling, storage, and marketing in North
America of hydrocarbons and related operations. Vulcan Energy is located at
700 Louisiana, Suite 4150, Houston, Texas 77002. Vulcan Energy is the sole
stockholder of Vulcan Energy GP Holdings Inc., a Delaware corporation ("Vulcan
Energy GP"). Vulcan Energy's directors are Hoon Cho, Gregory P. Landis, David
N. Capobianco, James C. Flores and John T. Raymond. Vulcan Energy's executive
officers are:
Name Office
David N. Capobianco Chairman of the Board and Vice President
Nathanial T. Brown Vice President and CFO
Navin Thukkaram Corporate Secretary
The principal business address of Mr. Flores is: P.O. Box 1083,
Houston, Texas 77251-1083. The principal business address of Mr. Raymond is:
700 Louisiana, Suite 4150, Houston, Texas 77002. The principal business
address of each of the other executive officers and of the directors is: 505
Fifth Avenue S, Suite 900, Seattle, Washington 98104.
None of Vulcan Energy nor, to Vulcan Energy's knowledge, any of its
directors or executive officers have during the last five years been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which he, she or
it is or was subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
To the knowledge of Vulcan Energy, each of Vulcan Energy's directors
and executive officers is a citizen of the United States.
Item 4. Purpose of Transaction
Item 4 is hereby amended to add the following paragraph to the end of
Item 4:
On August 12, 2005, Vulcan Energy GP purchased from Sable
Investments, L.P. its 10.3210% interest in Plains All American GP LLC ("PAA
GP"), a Delaware limited liability company and the general partner of Plains
AAP, L.P., a Delaware limited partnership and the general partner of the
Issuer ("Plains AAP"), and 10.2178% interest in Plains AAP (the "Sable PAA
Interests") for an aggregate purchase price of US$44,163,016. As a result,
Vulcan Energy owns 53.7778% of the limited partnership interests of Plains AAP
and 54.3210% of the limited liability company interests in PAA GP. In
connection with the purchase of the Sable GP Interests, Vulcan Energy GP
entered into a voting agreement (the "Excess Interests Voting Agreement") with
PAA GP, pursuant to which Vulcan Energy GP agreed that, with respect to any
action taken with respect to election or removal of an independent director of
PAA GP, Vulcan Energy GP will vote all of its interest in PAA GP in excess of
49.9% in the same way and proportionate to the votes of all membership
interests in PAA GP other than Vulcan Energy GP's. Vulcan Energy GP has the
right at any time to give notice of termination of the Excess Interests Voting
Agreement. The time between notice and termination depends on the
circumstances, but would never be longer than one year.The summary description
contained in this Item 4 of the Excess Interests Voting Agreement is qualified
in its entirety by reference to the full text of such document, which is
attached hereto as Exhibit 99(a) and incorporated by reference herein.
Item 5. Interest in Securities of Issuer
Item 5 is amended and restated in its entirety as follows:
Based upon information set forth in the Issuer's Annual Report on Form 10-Q
filed with the Securities and Exchange Commission on May 9, 2004, as of May 2,
2005, there were issued and outstanding 67,868,108 Common Units. As of August
12, 2005, the aggregate number and percentage of Common Units of the Issuer
beneficially owned by the Reporting Persons is 13,688,400 Common Units, or
20.17%, although each Reporting Person disclaims beneficial ownership of the
shares beneficially owned by each other Reporting Person. This number of units
includes the following:
(a) Mr. Allen does not own any Common Units. Mr. Allen owns
1,767,592.4 shares of Class A Common Stock of Vulcan Energy, or approximately
88.38% of the outstanding shares of Vulcan Energy common stock (91.11% of the
outstanding unrestricted shares of Vulcan Energy common stock). Mr. Allen is
the sole stockholder of Vulcan Capital Inc.
(b) Vulcan Capital Inc. does not own any Common Units. Vulcan Capital
Inc. is the managing member of Vulcan Capital Management, which is the manager
of Vulcan Capital LLC.
(c) Vulcan Capital LLC owns a total of 1,298,280 Common Units
(representing 1.91% of the total outstanding Common Units).
(d) Vulcan Energy owns a total of 12,390,120 Common Units
(representing 18.26% of the total outstanding Common Units).
(f) David Capobianco does not own any Common Units. Mr. Capobianco
owns a minority indirect ownership interest in Vulcan Capital LLC and has an
indirect right to receive a performance-based fee based on the performance of
Vulcan Capital LLC's holdings, including its Common Units. Mr. Capobianco also
has the right to receive a performance-based fee based on the performance of
the holdings of Vulcan Energy, including the Common Units indirectly held by
Vulcan Energy. Mr. Capobianco has neither the power to vote nor to dispose of
the Issuer securities held by Vulcan Capital LLC or Vulcan Energy and
disclaims beneficial ownership of such securities.
Each Reporting Person and, to such Reporting Person's knowledge, the
other persons identified pursuant to Item 2, have not effected any other
transactions in any outstanding class of common units of the Issuer during the
past 60 days.
Each Reporting Person does not know of any other person that has the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, the shares any outstanding class of common units of
the Issuer beneficially owned by the persons identified in Item 2.
The Reporting Persons have entered into a Joint Filing Agreement,
dated as of September 9, 2005, a copy of which is attached hereto as Exhibit
99(b). Neither the fact of this filing nor anything contained herein shall be
deemed an admission by the Reporting Persons that they constitute a "group" as
such term is used in Section 13(d)(1)(k) of the rules and regulations under
the Exchange Act.
Item 6. Contracts, Arrangements, Understandings or Relationships with respect
to Securities of the Company
Please see Item 4 above.
Item 7. Material to be Filed as Exhibits
99(a) Excess Interests Voting Agreement between Vulcan Energy GP
Holdings Inc. and Plains All American GP LLC, dated August
12, 2005.
99(b) Joint Filing Agreement.
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
Date: September 9, 2005
/s/ W. Lance Conn
---------------------
By: W. Lance Conn
As Attorney-in-fact for Paul G. Allen
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
Date: September 9, 2005
/s/ David N. Capobianco
---------------------------
David N. Capobianco
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
Date: September 9, 2005
VULCAN CAPITAL PRIVATE EQUITY INC.
By: /s/ W. Lance Conn
---------------------
Name: W. Lance Conn
Title: Vice President
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
Date: September 9, 2005
VULCAN CAPITAL PRIVATE EQUITY I LLC
By: Vulcan Capital Private Equity
Management I LLC, its manager
By: Vulcan Capital Private Equity Inc.,
its managing member
By: /s/ W. Lance Conn
---------------------
Name: W. Lance Conn
Title: Vice President
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this Statement is
true, complete and correct.
Date: September 9, 2005
VULCAN ENERGY CORPORATION
By: /s/ David N. Capobianco
---------------------------
Name: David N. Capobianco
Title: Vice President and Chairman
Exhibit Index
Name of Exhibit
99(a) Excess Interests Voting Agreement between Vulcan Energy GP
Holdings Inc. and Plains All American GP LLC, dated August
12 2005.
99(b) Joint Filing Agreement.
Exhibit 99(a)
Excess Interests Voting Agreement
---------------------------------
Vulcan Energy GP Holdings Inc.
505 Fifth Avenue South
Suite 900
Seattle, Washington 98104
August 12, 2005
Plains All American GP LLC
333 Clay Street, Suite 1600
Houston, Texas 77002
Gentlemen:
Reference is made to the Amended and Restated Limited
Liability Company Agreement of Plains All American GP LLC, dated as of June 8,
2001, as amended (the "LLC Agreement"). The undersigned has become the
beneficial owner of more than 49.9% (a "Majority Holder") of the Membership
Interests (as defined in the LLC Agreement) of Plains All American GP LLC, a
Delaware limited liability company (the "Company"). Capitalized terms that are
not otherwise defined herein shall have the meanings set forth in the LLC
Agreement.
The undersigned hereby acknowledges its understanding that,
pursuant to the terms of certain employment and incentive agreements between
the Company and its employees, absent the execution and delivery of this
letter agreement by the undersigned, the fact that the undersigned has become
a Majority Holder would constitute a "change in control" for purposes of those
employment and incentive agreements.
1. Subject to the terms and conditions of this letter
agreement, during the term of this letter agreement, at each annual meeting of
the Members, at each special meeting of the Members called for the purpose of
electing Independent Directors, and in respect of any action by written
consent to elect Independent Directors, the undersigned shall vote or cause to
be voted the Excess Interests held by it and its affiliates in favor of the
election of each nominee for Independent Director in the same proportion as
all Membership Interests (other than those beneficially owned by the
undersigned and its affiliates, including the Excess Interests) are voted with
respect to such election. For the avoidance of doubt, for purposes of this
letter agreement the term "Independent Director" shall not include any
replacement Director who is to be elected by a Majority in Interest pursuant
to the second sentence of Section 7.1(a)(iv) of the LLC Agreement. "Excess
Interests" means, with respect to a particular election or removal of
Independent Directors, an amount of Membership Interests equal to the amount,
if any, by which the total Membership Interests beneficially owned by the
undersigned and its affiliates and entitled to vote with respect to such
election or removal of Independent Directors exceeds 49.9% of the outstanding
Membership Interests that are entitled to vote with respect to such election
or removal of Independent Directors.
2. Subject to the terms and conditions of this letter
agreement, during the term of this letter agreement, at each special meeting
of the Members called for the purpose of removing any Independent Director
without Good Cause, and in connection with any action by the Members to remove
any Independent Director without Good Cause, including without limitation
pursuant to Section 7.1(a)(iii) of the LLC Agreement, the undersigned shall
vote or cause to be voted the Excess Interests held by it and its affiliates
in favor of or against the removal of such Independent Director in the same
proportion as all Membership Interests (other than those beneficially owned by
the undersigned and its affiliates, including the Excess Interests) are voted
with respect to such removal. For the purposes of this letter agreement, the
Members shall have "Good Cause" to remove or fail to reelect any Independent
Director only upon such Independent Director's (i) engaging in gross
misconduct, including without limitation any breach of his fiduciary duties,
(ii) violation of the Company's Code of Business Conduct (unless waived in
accordance with the terms thereof), (iii) engaging in conduct which is
demonstrably and materially injurious to the Company or to Rodeo, L.P. and its
subsidiaries, taken as a whole, (iv) indictment for, or conviction of, a
felony involving moral turpitude.
3. The undersigned agrees that it will not provide or
promise any economic incentive or other consideration (including any
concession or forbearance) directly or indirectly to any other member of the
Company that has the intent or effect of terminating, obviating or
circumventing this letter agreement; provided that for the avoidance of doubt,
this paragraph 3 shall not be deemed to include routine conversations with
other members of the Company regarding the Independent Directors or other
matters where the undersigned attempts to persuade such other members to vote
in a specified manner as long as the undersigned's solicitations do not
involve the direct or indirect provision or promise of any economic incentives
or other consideration
4. The term of this letter agreement shall commence on the
date of this letter agreement and shall continue thereafter unless terminated
by the undersigned pursuant to this Section 4. The undersigned shall be
entitled to terminate this letter agreement at any time upon giving at least
the applicable Minimum Required Notice (as defined below) in writing of such
termination to the Company. Notwithstanding the foregoing, the undersigned
shall be entitled to terminate this letter agreement at any time by giving
written notice to the Company (which notice shall be effective immediately)
upon and after the occurrence of any of the following circumstances: (a) the
undersigned, as a result of an arm's length transaction with an unrelated
third party, is no longer a Majority Holder, (b) both KAFU Holdings, L.P. and
E-Holdings III, L.P., or any affiliate of any of the foregoing shall cease to
be a Member, (c) any other Member shall be in breach of the LLC Agreement in
any manner materially adverse to the undersigned, (d) the Persons who own the
equity interests in the undersigned, or if the undersigned is controlled
directly or indirectly by any other entity, the ultimate parent of the
undersigned, as the case may be, on the date hereof cease to beneficially own,
directly or indirectly, more than 50% of the equity interest in the
undersigned or the ultimate parent entity, as the case may be, (e) Greg L.
Armstrong shall cease to be the Chief Executive Officer of the Company, or (f)
Harry N. Pefanis shall cease to be the President and Chief Operating Officer
of the Company; provided, that (x) in the case of clause (b) above, to be
effective such written notice must be given within 90 days of such Member
ceasing to be a Member, and (y) in the case of either clause (e) or (f) above,
to be effective such written notice must be given within 90 days of such
officer ceasing to hold such position.
A "Distribution Shortfall" shall occur with respect to any
Quarter if the aggregate amount of cash distributed by Rodeo, L.P. in
respect of each Common Unit (as defined in the Rodeo L.P. Partnership
Agreement) with respect to such Quarter (as defined in the Rodeo L.P.
Partnership Agreement) is less than the aggregate amount of cash
distributed by Rodeo, L.P. in respect of each Common Unit with
respect to the immediately preceding Quarter.
"Minimum Required Notice" means, with respect to a
particular termination notice, one year prior written notice;
provided, however, that if there shall occur a Distribution Shortfall
during any Quarter when the Minimum Required Notice period is one
year (the "Triggering Quarter"), then the "Minimum Required Notice"
with respect to a termination notice given in any subsequent Quarter
shall be (i) 180 days prior written notice if such termination notice
is given during the first such subsequent Quarter (the "First
Adjusted Quarter"), (ii) 90 days prior written notice if such
termination notice is given during the second Quarter immediately
following the Triggering Quarter (the "Second Adjusted Quarter"); and
(iii) 30 days prior written notice if such termination notice is
given during the third Quarter immediately following the Triggering
Quarter (the "Third Adjusted Quarter") or any subsequent Quarter,
except that
(1) if there shall have been no Distribution
Shortfall during the First Adjusted Quarter, the "Minimum
Required Notice" period shall be 180 days with respect to
any termination notice given during the Second Adjusted
Quarter,
(2) if there shall have been no Distribution
Shortfall during either the First Adjusted Quarter or the
Second Adjusted Quarter, the "Minimum Required Notice"
period shall be one year with respect to any Quarter
following the Second Adjusted Quarter (subject to the
application of this proviso to any subsequent Quarter in the
event of a subsequent Distribution Shortfall),
(3) if there shall have been a Distribution
Shortfall in the First Adjusted Quarter and (x) no
Distribution Shortfall during the Second Adjusted Quarter,
the "Minimum Required Notice" period shall be 90 days with
respect to any termination notice given during the Third
Adjusted Quarter, (y) no Distribution Shortfall during the
Second Adjusted Quarter or the Third Adjusted Quarter, the
"Minimum Required Notice" period shall be 90 days with
respect to any termination notice given during the Quarter
immediately following the Third Adjusted Quarter (the
"Fourth Adjusted Quarter"), and (z) no Distribution
Shortfall during the Second Adjusted Quarter, the Third
Adjusted Quarter or the Fourth Adjusted Quarter, the
"Minimum Required Notice" period shall be one year with
respect to any Quarter following the Fourth Adjusted Quarter
(subject to the application of this proviso to any
subsequent Quarter in the event of a subsequent Distribution
Shortfall), and
(4) thereafter, if there shall have been four
consecutive Quarters without a Distribution Shortfall, the
"Minimum Required Notice" period shall be one year with
respect to any Quarter following the fourth of such
consecutive Quarters (subject to the application of this
proviso to any subsequent Quarter in the event of a
subsequent Distribution Shortfall).
5. Except to the extent specifically set forth above,
nothing contained herein shall be deemed to modify, supersede or in any manner
limit any rights of the undersigned under the LLC Agreement, including without
limitation, any rights of the undersigned to designate a Director pursuant to
Section 7.1(a)(ii) of the LLC Agreement, or to remove any such designated
Director pursuant to Section 7.1(a)(iii) of the LLC Agreement. Nothing
contained herein shall be deemed to modify, supersede or in any manner limit
any rights of the undersigned under the Partnership Agreement or the Rodeo,
L.P. Partnership Agreement.
6. This letter agreement is to be governed by the laws of
the State of Delaware, without giving effect to the principles of conflicts of
laws thereof. If any provision hereof is deemed unenforceable, the
enforceability of the other provisions hereof shall not be affected.
7. The undersigned signs solely in his, her or its
individual capacity with respect to his, her or its beneficial ownership of
Membership Interests and makes no agreement or understanding herein in any
other capacity, including his, her or its capacity as a director of the
Company.
8. This letter agreement may be executed in two or more
counterparts, each of which shall be considered an original but all of which
together shall constitute the same instrument.
9. This letter agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and
oral, among the undersigned and the Company, or any of them, with respect to
the subject matter hereof.
10. This letter agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by each of the undersigned and the Company.
11. This letter agreement shall not be assigned by the
Company by operation of law or otherwise without the prior written consent of
the undersigned.
12. This letter agreement shall be binding upon and inure
solely to the benefit of each party to this letter agreement and their
permitted assignees, and nothing in this letter agreement, express or implied,
is intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this letter agreement.
Without limiting the foregoing, no direct or indirect holder of any equity
interests or securities of any party to this letter agreement (whether such
holder is a limited or general partner, member, stockholder or otherwise), nor
any Affiliate of any party to this letter agreement, nor any director,
officer, employee, representative, agent or other controlling Person of each
of the parties to this letter agreement and their respective Affiliates shall
have any liability or obligation arising under this letter agreement.
13. The undersigned acknowledges and agrees that the Company
could not be made whole by monetary damages in the event of any default by the
undersigned of the terms and conditions set forth in this letter agreement. It
is accordingly agreed and understood that the Company, in addition to any
other remedy that it may have at law or in equity, shall be entitled to an
injunction or injunctions to prevent breaches of this letter agreement and
specifically to enforce the terms and provisions hereof in any action
instituted in any court of the United States or in any state having
appropriate jurisdiction.
Very truly yours,
VULCAN ENERGY GP HOLDINGS INC.
By: /s/ David N. Capobianco
--------------------------------
Name: David N. Capobianco
Title: President
Agreed and accepted as of
this 12th day of August, 2005:
PLAINS ALL AMERICAN GP LLC
By: /s/ Tim Moore
------------------------
Name: Tim Moore
Title: Vice President
Exhibit 99(b)
Joint Filing Statement
----------------------
Pursuant to Rule 13d-1(k)(1)
The undersigned acknowledge and agree that the foregoing Statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this Statement on Schedule 13D shall be filed on
behalf of each of the undersigned without the necessity of filing additional
joint filing statements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the completeness
and accuracy of the information concerning him or it contained therein, but
shall not be responsible for the completeness and accuracy of the information
concerning the other, except to the extent that he or it knows or has reason
to believe that such information is inaccurate.
Date: September 9, 2005
/s/ W. Lance Conn
---------------------
By: W. Lance Conn
As Attorney-in-fact for Paul G.
Allen
/s/ David N. Capobianco
---------------------------
David N. Capobianco
VULCAN CAPITAL PRIVATE EQUITY INC.
By: /s/ W. Lance Conn
---------------------
Name: W. Lance Conn
Title: Vice President
VULCAN CAPITAL PRIVATE EQUITY I LLC
By: Vulcan Capital Private Equity
Management I LLC, its manager
By: Vulcan Capital Private Equity
Inc., its managing member
By: /s/ W. Lance Conn
---------------------
Name: W. Lance Conn
Title: Vice President
VULCAN ENERGY CORPORATION
By: /s/ David N. Capobianco
---------------------------
Name: David N. Capobianco
Title: Vice President
and Chairman