Attached files
| file | filename |
|---|---|
| EX-31.1 - EXHIBIT 31.1 - Westmoreland Resource Partners, LP | ex31-1.htm |
| EX-31.2 - EXHIBIT 31.2 - Westmoreland Resource Partners, LP | ex31-2.htm |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Amendment No. 1)
(Mark One)
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x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended December 31, 2011
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from to
COMMISSION FILE NO.: 001-34815
(Exact name of registrant as specified in its charter)
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Delaware
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77-0695453
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(State or Other Jurisdiction of
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(I.R.S. Employer
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Incorporation or Organization)
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Identification No.)
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41 South High Street, Suite 3450, Columbus, Ohio 43215
(Address of Principal Executive Offices, Including Zip Code)
(614) 643-0337
(Registrant’s Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Act: Common Units representing limited partner interests
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Title of Each Class
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Name of Each Exchange On Which Registered
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Common Units Representing Limited Partner Interests
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New York Stock Exchange
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Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ¨ Yes x No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ¨ Yes x No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes ¨ No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). x Yes ¨ No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one)
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Large Accelerated Filer
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¨
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Accelerated Filer
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x
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Non-Accelerated Filer
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¨
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Smaller Reporting Company
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¨
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ¨ Yes x No
The aggregate market value of the common units held by non-affiliates of the registrant (treating all executive officers and directors of the registrant, for this purpose, as if they may be affiliates of the registrant) was approximately $211,862,000 as of June 30, 2011, based on the reported closing price of the common units as reported on the New York Stock Exchange on such date.
As of March 9, 2012, 10,409,027 common units and 10,280,380 subordinated units were outstanding. The common units trade on the New York Stock Exchange under the ticker symbol “OXF.”
DOCUMENTS INCORPORATED BY REFERENCE: None
2
EXPLANATORY NOTE
This Amendment No. 1 (this “Amendment No. 1”) to the Annual Report on Form 10-K of Oxford Resource Partners, LP for the year ended December 31, 2011 (the “Form 10-K”) is being filed by Oxford Resource Partners, LP (the “Company”) in response to certain comments made by the staff of the Securities and Exchange Commission. In response to such comments, we have (i) amended Part II, Item 9A (CONTROLS AND PROCEDURES) to disclose management’s assessment of the effectiveness of the Company’s internal control over financial reporting in the section thereof titled “Management’s Annual Report on Internal Control Over Financial Reporting,” and in doing so we have set forth all of said Item 9A other than the “Report of Independent Registered Public Accounting Firm” that was originally filed with the Form 10-K and nonetheless remains a part thereof, and (ii) amended the certifications of our principal executive officer and principal financial officer delivered pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 to include all required disclosure. Except as described above, no other change has been made to the Form 10-K, and this Amendment No. 1 does not amend, update or change any other Item or disclosure in the Form 10-K in any way. This Amendment No. 1 does not reflect events occurring after the filing of the Form 10-K or modify or update those disclosures, including any exhibits to the Form 10-K affected by subsequent events.
3
ITEM 9A. CONTROLS AND PROCEDURES
Conclusion Regarding the Effectiveness of Disclosure Controls and Procedures
We carried out an evaluation, under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this Report on Form 10-K pursuant to Securities Exchange Act of 1934 Rule 13a-15. Based upon that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that, as of December 31, 2011, our disclosure controls and procedures were effective to provide reasonable assurance that material information required to be disclosed by us in reports that we file or submit under the Securities Exchange Act of 1934 is appropriately recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that information required to be disclosed by us in the reports we file or submit under the Securities Exchange Act of 1934 is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Management’s Annual Report on Internal Control Over Financial Reporting
Management is responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
Our internal control over financial reporting includes policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect transactions and dispositions of assets; (2) provide reasonable assurances that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures are being made only in accordance with authorizations of management and the directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
As of the end of the period covered by this report, our management carried out an evaluation, with the participation of our chief executive officer and chief financial officer, of the effectiveness of our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) promulgated under the Securities Exchange Act of 1934, as amended). Based upon that evaluation, our chief executive officer and chief financial officer concluded that our internal control over financial reporting was effective as of the end of the period covered by this report. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework. The design of any system of controls is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions, regardless of how remote.
The effectiveness of our internal control over financial reporting as of December 31, 2011 has been audited by Grant Thornton, an independent registered public accounting firm, as stated in their report set forth in the Report of Independent Registered Public Accounting Firm included in the Annual Report on Form 10-K filed on March 14, 2012.
Changes in Internal Control Over Financial Reporting
There has been no change in our internal control over financial reporting during the quarter ended December 31, 2011 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
4
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
Date: February 8, 2013
| OXFORD RESOURCE PARTNERS, LP | ||||
| By: OXFORD RESOURCES GP, LLC, its general partner | ||||
| By: | /s/ CHARLES C. UNGUREAN | |||
| Charles C. Ungurean | ||||
| President and Chief Executive Officer | ||||
| (Principal Executive Officer) | ||||
| By: |
/s/ BRADLEY W. HARRIS
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| Bradley W. Harris | ||||
| Senior Vice President, Chief Financial Officer and | ||||
| Treasurer | ||||
| (Principal Financial Officer) | ||||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons in their indicated capacities, which are with the general partner of the registrant, on the dates indicated.
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Signature
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Title
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Date
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/s/ GEORGE E. MCCOWN
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Chairman of the Board
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February 5, 2013
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| George E. McCown | ||||
| /s/ CHARLES C. UNGUREAN | Director, President and Chief | February 5, 2013 | ||
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Charles C. Ungurean
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Executive Officer
(principal executive officer)
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| /s/ BRADLEY W. HARRIS | Senior Vice President, Chief Financial | February 5, 2013 | ||
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Bradley W. Harris
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Officer and Treasurer
(principal financial officer)
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/s/ DENISE M. MAKSIMOSKI
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Senior Director of Accounting
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February 5, 2013
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| Denise M. Maksimoski | (principal accounting officer) | |||
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/s/ BRIAN D. BARLOW
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Director
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February 5, 2013
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| Brian D. Barlow | ||||
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/s/ MATTHEW P. CARBONE
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Director
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February 5, 2013
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| Matthew P. Carbone | ||||
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/s/ PETER B. LILLY
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Director
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February 5, 2013
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| Peter B. Lilly | ||||
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/s/ ROBERT J. MESSEY
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Director
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February 5, 2013
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| Robert J. Messey | ||||
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/s/ GERALD A. TYWONIUK
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Director
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February 5, 2013
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| Gerald A. Tywoniuk | ||||
5
INDEX TO EXHIBITS
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Exhibit
Number
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Description
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3.1
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Certificate of Limited Partnership of Oxford Resource Partners, LP (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on March 24, 2010)
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3.2
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Third Amended and Restated Agreement of Limited Partnership of Oxford Resource Partners, LP dated July 19, 2010 (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (Commission File No. 001-34815) filed on July 19, 2010)
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3.3
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Certificate of Formation of Oxford Resources GP, LLC (incorporated by reference to Exhibit 3.3 to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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3.4
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Third Amended and Restated Limited Liability Company Agreement of Oxford Resources GP, LLC dated January 1, 2011 (incorporated by reference to Exhibit 3.2 to the Current Report on Form 8-K (Commission File No. 001-34815) filed on January 4, 2011)
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10.1A
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Credit Agreement dated as of July 6, 2010 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K (Commission File No. 001-34815) filed on July 19, 2010)
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10.1B
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First Amendment to Credit Agreement and Limited Waiver dated as of July 15, 2010 (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K (Commission File No. 001-34815) filed on July 19, 2010)
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10.1C^
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Third Amendment to Credit Agreement dated as of December 28, 2011
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10.2
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Investors’ Rights Agreement, dated August 24, 2007, by and among Oxford Resource Partners, LP, Oxford Resources GP, LLC, AIM Oxford Holdings, LLC, C&T Coal, Inc., Charles C. Ungurean and Thomas T. Ungurean (incorporated by reference to Amendment No. 3 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 9, 2010)
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10.3A#
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Employment Agreement between Oxford Resources GP, LLC and Jeffrey M. Gutman, which Employment Agreement was effective on July 19, 2010 and amended and superseded by a new employment agreement effective on March 14, 2012 (incorporated by reference to Exhibit 10.4 to the Quarterly Report on Form 10-Q (Commission File No. 001-34815) for the quarter ended June 30, 2010 filed on August 10, 2010)
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10.3B^#
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Employment Agreement between Oxford Resources GP, LLC and Jeffrey M. Gutman, which Employment Agreement was effective on March 14, 2012
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10.4A#
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Employment Agreement between Oxford Resources GP, LLC and Gregory J. Honish, which Employment Agreement was effective on July 19, 2010 and amended and superseded by a new employment agreement effective on March 14, 2012 (incorporated by reference to Exhibit 10.5 to the Quarterly Report on Form 10-Q (Commission File No. 001-34815) for the quarter ended June 30, 2010 filed on August 10, 2010)
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10.4B^#
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Employment Agreement between Oxford Resources GP, LLC and Gregory J. Honish, which Employment Agreement was effective on March 14, 2012
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i
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10.5A#
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Employment Agreement between Oxford Resources GP, LLC and Daniel M. Maher dated August 1, 2010, which Employment Agreement was effective on January 1, 2011 and amended and superseded by a new employment agreement effective on March 14, 2012 (incorporated by reference to Exhibit 10.21 to the Quarterly Report on Form 10-Q (Commission File No. 001-34815) for the quarter ended September 30, 2010 filed on November 9, 2010)
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10.5B#
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First Amendment to Employment Agreement between Oxford Resources GP, LLC and Daniel M. Maher dated December 31, 2010, amending an Employment Agreement between Oxford Resources GP, LLC and Daniel M. Maher which was effective on January 1, 2011 and amended and superseded by a new employment agreement effective on March 14, 2012 (incorporated by reference to Exhibit 10.22 to the Annual Report on Form 10-K (Commission File No. 001-34815) for the year ended December 31, 2010 filed on March 18, 2011)
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10.5C^#
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Employment Agreement between Oxford Resources GP, LLC and Daniel M. Maher, which Employment Agreement was effective on March 14, 2012
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10.6A#
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Employment Agreement between Oxford Resources GP, LLC and Charles C. Ungurean, which Employment Agreement was effective on July 19, 2010 and amended and superseded by a new employment agreement effective on March 14, 2012 (incorporated by reference to Exhibit 10.6 to the Quarterly Report on Form 10-Q (Commission File No. 001-34815) for the quarter ended June 30, 2010 filed on August 10, 2010)
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10.6B^#
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Employment Agreement between Oxford Resources GP, LLC and Charles C. Ungurean, which Employment Agreement was effective on March 14, 2012
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10.7#
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Employment Agreement between Oxford Resources GP, LLC and Thomas T. Ungurean (incorporated by reference to Exhibit 10.7 to the Quarterly Report on Form 10-Q (Commission File No. 001-34815) for the quarter ended June 30, 2010 filed on August 10, 2010)
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10.8#
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Employee Unitholder Agreement among Oxford Resource Partners, LP, Oxford Resources GP, LLC and Jeffrey M. Gutman (incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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10.9#
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Employee Unitholder Agreement among Oxford Resource Partners, LP, Oxford Resources GP, LLC and Gregory J. Honish (incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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10.10#
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Oxford Resource Partners, LP Amended and Restated Long-Term Incentive Plan dated July 19, 2010 (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K (Commission File No. 001-34815) filed on July 19, 2010)
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10.11A^#
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Form of Long-Term Incentive Plan Award Agreement for Grant of Phantom Units for general use
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10.11B^#
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Form of Long-Term Incentive Plan Award Agreement for Grant of Phantom Units for use with Charles C. Ungurean, Thomas T. Ungurean, Jeffrey M. Gutman, Gregory J. Honish and Daniel M. Maher
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10.12^#
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Non-Employee Director Compensation Plan adopted on June 28, 2011 and effective on January 1, 2011
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10.13^#
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Form of Non-Employee Director Compensation Plan Award Agreement for Grant of Unrestricted Units
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10.14#
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Director Unitholder Agreement, dated December 1, 2009, by and among Oxford Resource Partners, LP, Oxford Resources GP, LLC and Gerald A. Tywoniuk (incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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10.15
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Acquisition Agreement, dated August 14, 2009, by and among Oxford Mining Company, LLC, Phoenix Coal Inc., Phoenix Coal Corporation and Phoenix Newco, LLC (incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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ii
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10.16A
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Coal Purchase and Sale Agreement No. 10-62-04-900, dated May 21, 2004, by and between Oxford Mining Company, Inc. and American Electric Power Service Corporation, agent for Columbus Southern Power Company (incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 25, 2010)
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10.16B
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Amendment No. 2004-1 to Coal Purchase and Sale Agreement, dated October 25, 2004 (incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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10.16C
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Amendment No. 2005-1 to Coal Purchase and Sale Agreement, dated April 8, 2005 (incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 25, 2010)
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10.16D
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Amendment No. 2006-3 to Coal Purchase and Sale Agreement, dated December 5, 2006 (incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 25, 2010)
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10.16E
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Amendment No. 2008-6 to Coal Purchase and Sale Agreement, dated December 29, 2008 (incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 25, 2010)
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10.16F
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Amendment No. 2009-1 to Coal Purchase and Sale Agreement, dated May 21, 2009 (incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 25, 2010)
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10.16G
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Amendment No. 2009-3 to Coal Purchase and Sale Agreement, dated December 15, 2009 (incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 25, 2010)
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10.16H
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Amendment No. 2010-1 to Coal Purchase and Sale Agreement, dated January 11, 2010 (incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 25, 2010)
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10.16I†
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Amendment No. 2010-2 to Coal Purchase and Sale Agreement, dated February 4, 2010 (incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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10.16J
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Amendment No. 2010-3 to Coal Purchase and Sale Agreement, dated April 16, 2010 (incorporated by reference to Amendment No. 3 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 9, 2010)
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10.16K^†
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Amendment No. 2011-5 to Coal Purchase and Sale Agreement, dated October 26, 2011
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10.17
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Non-Compete Agreement by and among Oxford Resource Partners, LP, C&T Coal, Inc., Charles C. Ungurean, Thomas T. Ungurean and Oxford Resources GP, LLC (incorporated by reference to Amendment No. 3 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on June 9, 2010)
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10.18
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Administrative and Operational Services Agreement, dated August 24, 2007, by and among Oxford Resource Partners, LP, Oxford Mining Company, LLC and Oxford Resources GP, LLC (incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 (Commission File No. 333-165662) filed on April 21, 2010)
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21.1^
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List of Subsidiaries of Oxford Resource Partners, LP
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23.1^
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Consent of Grant Thornton LLP
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23.2^
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Consent of John T. Boyd Company
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31.1*
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Certification of Charles C. Ungurean, President and Chief Executive Officer of Oxford Resources GP, LLC, the general partner of Oxford Resource Partners, LP, for Amendment No. 1 to December 31, 2011 Annual Report on Form 10-K, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
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iii
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31.2*
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Certification of Bradley W. Harris, Senior Vice President, Chief Financial Officer and Treasurer of Oxford Resources GP, LLC, the general partner of Oxford Resource Partners, LP, for Amendment No. 1 to December 31, 2011 Annual Report on Form 10-K, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
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32.1^
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Certification of Charles C. Ungurean, President and Chief Executive Officer of Oxford Resources GP, LLC, the general partner of Oxford Resource Partners, LP, for the December 31, 2011 Annual Report on Form 10-K, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
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32.2^
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Certification of Jeffrey M. Gutman, Senior Vice President, Chief Financial Officer and Treasurer of Oxford Resources GP, LLC, the general partner of Oxford Resource Partners, LP, for the December 31, 2011 Annual Report on Form 10-K, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
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95^
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Mine Safety Disclosure
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101^
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Interactive data files pursuant to Rule 405 of Regulation S-T: (i) our Consolidated Balance Sheets as of December 31, 2011 and December 31, 2010; (ii) our Consolidated Statements of Operations for the years ended December 31, 2011, December 31, 2010 and December 31, 2009; (iii) our Consolidated Statements of Cash Flows for the years ended December 31, 2011, December 31, 2010 and December 31, 2009; (iv) our Consolidated Statements of Partners’ Capital for the years ended December 31, 2011, December 31, 2010 and December 31, 2009; and (v) the notes to our Consolidated Financial Statements (this information is furnished and not filed or part of a registration statement or prospectus for purposes of Sections 11 and 12 of the Securities Act of 1933, as amended, and Section 18 of the Securities Exchange Act of 1934, as amended)
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*
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Filed herewith.
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^
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Filed with Annual Report on Form 10-K on March 14, 2012.
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#
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Compensatory plan or arrangement.
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†
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Certain portions have been omitted pursuant to a confidential treatment request. Omitted information has been filed separately with the Securities and Exchange Commission.
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iv