Exhibit 99.4
Exhibit 99.4 — Non-Disclosure Agreement
NON-DISCLOSURE AGREEMENT
1. Introduction. This Non-Disclosure Agreement (this “Agreement”), which shall be
effective for all purposes as of March 3, 2011, is entered into among Blueknight Energy Partners,
L.P., a Delaware limited partnership (“Blueknight”), and Blueknight Energy Partners G.P., L.L.C., a
Delaware limited liability company (the “General Partner”), on the one hand, and Swank Capital, LLC
(“Receiving Party), on the other hand. From time to time, Blueknight and the General Partner may
(but shall not be obligated to) disclose to Receiving Party certain “non-public” information
relating to Blueknight, the General Partner, their respective Affiliates and their respective
businesses. Receiving Party acknowledges that, in making any such disclosures, Blueknight is
relying on an exception to the disclosure requirements of Regulation FD requiring the recipients of
such non-public information, which is also Material, to agree to keep such information
confidential. In consideration for the receipt of such non-public information, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Blueknight, the General Partner and Receiving Party agree as follows:
2. Definitions.
(a) “Affiliate” has the meaning provided in Rule 12b-2 of the Securities Exchange Act of 1934,
as amended.
(b) “Blueknight Non-public Information” shall mean information pertaining to Blueknight, the
General Partner and/or their respective Affiliates that has not been Publicly Disclosed and that
Blueknight or the General Partner discloses to Receiving Party, including, without limitation, the
existence of the Refinancing Meeting (as defined below) and attendance by Receiving Party or any
other limited partner of Blueknight at such meeting and all information regarding the refinancing
disclosed, discussed or made available to Receiving Party in the Refinancing Meeting. The term
Blueknight Non-public Information shall not include, however, information which (i) is or becomes
generally available to the public other than as a result of disclosure by Receiving Party in breach
of this Agreement, (ii) was or becomes available to Receiving Party on a non-confidential basis
prior to or after its disclosure by Blueknight or the General Partner from a person, other than
Blueknight or the General Partner, who is not known by Receiving Party to be bound by an obligation
to Blueknight or the General Partner to keep such information confidential or (iii) is developed
independently by Receiving Party without use of Blueknight Non-public Information and without
violating any of the provisions of this Agreement.
(c) “Group” has the meaning provided such term in Blueknight’s Third Amended and Restated
Partnership Agreement.
(d) “Material” shall have the meaning given such term under applicable federal and state
securities laws, regulations, and interpretations thereof.
(e) “Publicly Disclosed” shall mean public disclosure by Blueknight of the information in
question, either via the filing of appropriate reports with the Securities and Exchange Commission,
press release announcement, or other method of “public disclosure” within the meaning of applicable
federal and state securities laws, regulations, and interpretations thereof.
7
3. Obligation to Maintain Confidentiality. Receiving Party shall (i) keep and maintain any
Material Blueknight Non-public Information in strict confidence and (ii) not disclose to any other
person that the Blueknight Non-public Information has been made available to Receiving Party,
except, in each case, to the extent that Receiving Party is requested pursuant to, or required by,
applicable law or regulation or by legal process (including by deposition, interrogatory, request
for documents, subpoena, or similar process) to disclose any Blueknight Non-public Information.
4. Trading in Blueknight Securities; Refinancing Meeting.
(a) Receiving Party hereby acknowledges that it is aware that the United States securities
laws prohibit any person who has Material non-public information about a company from using such
information in breach of a duty of confidence in purchasing or selling securities of such company
or from communicating such information to any other person under circumstances in which it is
reasonably foreseeable that such person is likely to purchase or sell such securities in reliance
upon such information in breach of a duty of confidence.
(b) The parties agree that on March 3, 2011, representatives of the parties intend to meet
with each other as well as certain other limited partners of Blueknight to discuss the refinancing
and recapitalization of Blueknight (the “Refinancing Meeting”). The parties agree that Receiving
Party will not be considered part of a Group for purposes of Blueknight’s partnership agreement
with the other limited partners in attendance at the Refinancing Meeting solely because of
Receiving Party’s attendance at the Refinancing Meeting. Furthermore, the parties agree that (i)
at the Refinancing Meeting there may be discussion in the nature of offers to compromise the
disputed claims made in filings with the Securities and Exchange Commission (including filings made
on Schedule 13D), correspondence to the General Partner and Blueknight and/or statements made by
Receiving Party or its representatives to the General Partner and Blueknight or their
representatives and (ii) all conduct of, or oral statements made by, Blueknight, the General
Partner, Receiving Party or their respective representatives at the Refinancing Meeting that
concern prospective settlement of the disputed claims (other than such conduct or statements
containing information which (1) is or becomes generally available to the public other than as a
result of disclosure by the party receiving the information at the Refinancing Meeting in breach of
this Agreement, (2) was or becomes available to the party receiving the information at the
Refinancing Meeting on a non-confidential basis prior to or after its disclosure at the Refinancing
Meeting from a person who is not known by the party receiving the information at the Refinancing
Meeting to be bound by an obligation to the party disclosing such information at the Refinancing
Meeting to keep such information confidential or (3) is developed independently without use of
conduct or statements at the Refinancing Meeting that concern prospective settlement of the
disputed claims and without violating any of the provisions of this Agreement) are inadmissible and
may not be used in any subsequent proceeding under applicable federal or state rules of evidence.
Notwithstanding anything to the contrary herein, this Section 4(b) shall survive the termination of
this agreement and/or any disclosure of Blueknight Non-public Information.
(c) Receiving Party agrees that for a period of twenty (20) days from the date of the
Refinancing Meeting, unless Receiving Party has been specifically consented to in writing by
Blueknight, Receiving Party and its Affiliates will not, directly or indirectly, effect or seek,
offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any
way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to
effect or
participate in, any sale (including any short-sale) or acquisition of any equity securities (or
beneficial ownership thereof) or acquisition of assets of Blueknight or any of its Affiliates.
8
(d) On or before the twentieth (20th) day after the date of the Refinancing Meeting,
Blueknight shall publicly disclose any Blueknight Non-public Information disclosed to Receiving
Party at the Refinancing Meeting that Blueknight, in its good faith judgment, determines is
Material non-public information under United States securities laws with respect to Blueknight or
Blueknight’s securities. Blueknight shall promptly notify Receiving Party after making such
disclosure.
5. Miscellaneous.
(a) Receiving Party acknowledges that none of Blueknight, the General Partner nor any of their
respective representatives makes any representations or warranties, express or implied, as to the
accuracy or completeness of any Blueknight Non-public Information, except to the extent provided in
any definitive agreements, that none of Blueknight, the General Partner nor any of their respective
representatives shall have any liability whatsoever to Receiving Party or any other person as a
result of their use of any Blueknight Non-public Information or any errors therein or omissions
therefrom and that Receiving Party shall assume full and exclusive responsibility for any
conclusions derived from the Blueknight Non-public Information.
(b) Receiving Party agrees that money damages would not be a sufficient remedy for any breach
of this Agreement by it and that Blueknight and the General Partner shall each be entitled, without
the requirement of posting a bond or other security, to seek specific performance and injunctive or
other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the
exclusive remedy for a breach of this Agreement, but shall be in addition to all other remedies
available at law or in equity. In the event of litigation relating to this Agreement, if a court
of competent jurisdiction determines in a final, non-appealable judgment that a party has breached
this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable
legal fees and expenses such non-breaching party has incurred in connection with such litigation,
including any appeal therefrom.
(c) This Agreement shall terminate upon the expiration of ninety (90) days from the date
hereof.
(d) This Agreement shall be subject to, and construed in accordance with, the laws of the
State of New York (excluding its conflicts of laws rules) and applicable federal laws and
regulations. This Agreement contains the entire agreement and understanding among the parties
concerning the subject matter hereof, and supersedes any prior agreements, written or oral,
relating to the subject matter hereof. This Agreement may be amended, modified or waived only by a
separate writing executed by Blueknight and Receiving Party expressly so amending, modifying or
waiving this Agreement. This Agreement may not be transferred or assigned (by operation of law or
otherwise) by Receiving Party without the prior written consent of Blueknight, and shall inure to
the benefit of and be binding upon the parties hereto and their respective permitted successors and
assigns. This Agreement may be executed by facsimile and in any number of counterparts, each of
such counterparts shall for all purposes be deemed an original and all such counterparts shall
together constitute but one and the same instrument.
[Signature Page Follows]
9
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement effective as of the
date first set forth above.
| |
|
|
|
|
| |
BLUEKNIGHT ENERGY PARTNERS, L.P.
|
|
| |
By: |
Blueknight Energy Partners G.P., L.L.C.
|
|
| |
|
|
| |
By: |
|
|
| |
Name: |
|
|
| |
Title: |
|
|
| |
| |
BLUEKNIGHT ENERGY PARTNERS G.P., L.L.C.
|
|
| |
By: |
|
|
| |
Name: |
|
|
| |
Title: |
|
|
| |
| |
SWANK CAPITAL, LLC
|
|
| |
By: |
|
|
| |
Name: |
Jerry V. Swank |
|
| |
Title: |
Managing Member |
|
| |