Energys general partner may use its own discretion, free of fiduciary duty restrictions, in determining whether to exercise this right. As a consequence, a holder of limited partner interests may have his limited partner interests purchased from him at an undesirable time or price.
Fiduciary duties owed to unitholders by NuStar Energys general partner are prescribed by law and NuStar Energys partnership agreement.
NuStar Energys general partner is accountable to NuStar Energy and its unitholders as a fiduciary. These limited fiduciary duties are very different from the more familiar duties of a corporate board of directors, which must always act in the best interests of the corporation and its stockholders.
Fiduciary duties are generally considered to include an obligation to act with due care and loyalty. The duty of care, in the absence of a provision in a partnership agreement providing otherwise, generally requires a general partner to act for the partnership in the same manner as a prudent person would act on his own behalf. The duty of loyalty, in the absence of a provision in a partnership agreement providing otherwise, generally prohibits a general partner from taking any action or engaging in any transaction where a conflict of interest is present. The Delaware law generally provides that a limited partner may institute legal action on a partnerships behalf to recover damages from a third party where a general partner has refused to institute the action or where an effort to cause a general partner to do so is not likely to succeed. In addition, the statutory or case law of some jurisdictions may permit a limited partner to institute legal action on behalf of himself and all other similarly situated limited partners to recover damages from a general partner for violations of its fiduciary duties to the limited partners.
The Delaware law provides that Delaware limited partnerships may, in their partnership agreements, restrict or expand the fiduciary duties owed by a general partner to limited partners and the partnership.
Fiduciary standards may be modified by NuStar Energys partnership agreement. NuStar Energys partnership agreement contains various provisions restricting the fiduciary duties that might otherwise be owed by NuStar Energys general partner. The following is a summary of the material restrictions of the fiduciary duties owed by NuStar Energys general partner to the limited partners:
The partnership agreement contains provisions that waive or consent to conduct by NuStar Energys general partner and its affiliates that might otherwise raise issues as to compliance with fiduciary duties or applicable law. For example, the partnership agreement permits NuStar Energys general partner to make a number of decisions in its sole discretion, such as:
| ||•||the incurrence of indebtedness;|
| ||•||the acquisition or disposition of assets, except for the disposition of all of the assets of NuStar Energy, which requires unitholder approval;|
| ||•||the negotiation of any contracts; and|
| ||•||the disposition of NuStar Energy’s cash.|
Sole discretion entitles NuStar Energys general partner to consider only the interests and factors that it desires and it does not have a duty or obligation to give any consideration to any interest of, or factors affecting, NuStar Energy, its affiliates or any limited partner, including the public unitholders. Other provisions of NuStar Energys partnership agreement provide that NuStar Energys general partners actions must be carried out in its reasonable discretion.
The partnership agreement generally provides that affiliated transactions and resolutions of conflicts of interest not involving a required vote of unitholders must be fair and reasonable to NuStar Energy under the factors previously set forth. In determining whether a transaction or resolution is fair and reasonable NuStar Energys general partner may consider interests of all parties involved, including its own. Unless NuStar Energys general partner has acted in bad faith, the action taken by NuStar Energys general partner will not constitute a breach of its fiduciary duty.
In addition to the other more specific provisions limiting the obligations of NuStar Energys general partner, the partnership agreement further provides that NuStar Energys general partner and the officers and directors of NuStar GP, LLC will not be liable for monetary damages to NuStar Energy, the limited partners or assignees for errors of judgment or for any acts or omissions if NuStar Energys general partner and those other persons acted in good faith.