<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 4, 2000
REGISTRATION NO. 333-32502
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
DUKE ENERGY FIELD SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
1321 DELAWARE 58-2511048
<S> <C> <C>
(Primary Standard Industrial (State or other jurisdiction of (I.R.S. Employer
Classification Code Number) incorporation or organization) Identification No.)
</TABLE>
370 17TH STREET
SUITE 900
DENVER, COLORADO 80202
(303) 595-3331
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
DAVID D. FREDERICK
SENIOR VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
370 17TH STREET
SUITE 900
DENVER, COLORADO 80202
(303) 595-3331
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
Copies to:
<TABLE>
<S> <C> <C>
JEFFERY B. FLOYD, ESQ. MARTHA B. WYRSCH, ESQ. ROBERT H. CRAFT, JR., ESQ.
VINSON & ELKINS L.L.P. DUKE ENERGY FIELD SERVICES SULLIVAN & CROMWELL
2300 FIRST CITY TOWER CORPORATION 1701 PENNSYLVANIA AVE., NW
1001 FANNIN STREET 370 17TH STREET, SUITE 900 WASHINGTON, D.C. 20004
HOUSTON, TEXAS 77002-6760 DENVER, COLORADO 80202 (202) 956-7500
(713) 758-2222 (303) 595-3331
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS
NOT AN OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
PROSPECTUS (Subject to Completion)
Issued May 4, 2000
26,300,000 Shares
Duke Energy Field Services Corporation
COMMON STOCK
---------------------
DUKE ENERGY FIELD SERVICES CORPORATION IS OFFERING 26,300,000 SHARES OF ITS
COMMON STOCK. THIS IS OUR INITIAL PUBLIC OFFERING, AND NO PUBLIC MARKET
CURRENTLY EXISTS FOR OUR SHARES. WE ANTICIPATE THAT THE INITIAL PUBLIC OFFERING
PRICE WILL BE BETWEEN $20 AND $22 PER SHARE.
---------------------
WE HAVE FILED AN APPLICATION FOR THE COMMON STOCK TO BE QUOTED ON THE NEW YORK
STOCK EXCHANGE UNDER THE SYMBOL "DEF."
---------------------
INVESTING IN THE COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON
PAGE 12.
---------------------
PRICE $ A SHARE
---------------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC COMMISSIONS COMPANY
-------- ------------- -----------
<S> <C> <C> <C>
Per Share....................... $ $ $
Total........................... $ $ $
</TABLE>
Duke Energy Field Services Corporation has granted the underwriters the right to
purchase up to an additional 3,945,000 shares of common stock to cover
over-allotments.
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
Morgan Stanley & Co. Incorporated expects to deliver the shares of common stock
to purchasers on , 2000.
---------------------
MORGAN STANLEY DEAN WITTER MERRILL LYNCH & CO.
BANC OF AMERICA SECURITIES LLC
LEHMAN BROTHERS
J.P. MORGAN & CO.
PAINEWEBBER INCORPORATED
PETRIE PARKMAN & CO.
, 2000
<PAGE> 3
ART/MAPS/DIAGRAMS
[two photographs of Duke Energy Field Services Mooreland Plant in Oklahoma]
[fold-out map of Duke Energy Field Services System Assets depicting plants,
pipelines, offices and operating areas]
<PAGE> 4
OWNERSHIP OF OUR COMPANY
We are the issuer of the common stock offered by this prospectus and the
parent and owner of Duke Energy Field Services, LLC. On March 31, 2000, the
North American midstream natural gas gathering, processing, marketing and
natural gas liquids businesses of Duke Energy Corporation ("Duke Energy") and
Phillips Petroleum Company ("Phillips") were combined into Duke Energy Field
Services, LLC.
The following diagram is a summary of the ownership structure of our
company after giving effect to the U.S. and international common stock
offerings. After the offerings, Duke Energy and Phillips will together hold
approximately 81.24% (79.02% if the underwriters fully exercise their
over-allotment option) of the outstanding common stock in our company.
Approximately 110,500 shares are expected to be issued to employees under
restricted stock awards issued concurrently with the offerings.
DUKE
The exact allocation of shares between Duke Energy and Phillips will be
determined based on the average of the closing prices of our common stock on the
New York Stock Exchange Composite Tape on its first five trading days. Assuming
that the five-day average equals the assumed initial public offering price of
$21.00 per share, after the offerings Duke Energy will indirectly own
approximately 58.65% (57.05% if the underwriters fully exercise their
over-allotment option) and Phillips will indirectly own approximately 22.59%
(21.97% if the underwriters fully exercise their over-allotment option) of our
outstanding common stock. Although the exact allocation between Duke Energy and
Phillips may vary, upon completion of the offerings, Duke Energy will, in any
event, control our company through its share ownership and representation on our
Board of Directors. For a description of the combination of the North American
midstream natural gas businesses of Duke Energy and Phillips, see "Management's
Discussion and Analysis of Financial Condition and Results of Operations -- The
Combination." For a description of the relationships among Duke Energy, Phillips
and our company, see "Relationship with Duke Energy and Phillips."
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Prospectus Summary.......................................... 4
Risk Factors................................................ 12
Cautionary Statement About Forward-Looking Statements....... 18
Use of Proceeds............................................. 19
Dividend Policy............................................. 19
Dilution.................................................... 20
Capitalization.............................................. 21
Selected Historical and Pro Forma Combined Financial and
Other Data................................................ 22
Additional Financial and Other Data......................... 25
Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 27
Business.................................................... 41
Management.................................................. 60
Relationship with Duke Energy and Phillips.................. 67
Principal Stockholders...................................... 73
Description of Capital Stock................................ 74
Shares Eligible for Future Sale............................. 78
Material United States Federal Tax Consequences to
Non-United States Holders of
Common Stock.............................................. 79
Underwriters................................................ 82
Validity of the Common Stock................................ 84
Experts..................................................... 84
Additional Information...................................... 85
Index to Financial Statements............................... F-1
</TABLE>
---------------------
You should rely only on the information contained in this prospectus. We
have not authorized anyone to provide you with different information from that
contained in this prospectus. We are offering to sell shares of our common stock
and seeking offers to buy shares of our common stock only in jurisdictions where
offers and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus or as of an earlier indicated
date, regardless of the date of delivery of this prospectus or of any sale of
our common stock. Our business, financial condition, results of operations and
prospects may have changed since those dates.
---------------------
UNTIL , 2000, ALL DEALERS THAT BUY, SELL OR TRADE SHARES OF
COMMON STOCK, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO
DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER
A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD
ALLOTMENTS OR SUBSCRIPTIONS.
3
<PAGE> 6
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus.
This summary does not contain all of the information that you should consider
before investing in our common stock. You should read the entire prospectus
carefully, including the historical and pro forma financial statements and
related notes, before making an investment decision.
Duke Energy Field Services Corporation is a new company that holds the
combined North American midstream natural gas gathering, processing, marketing
and natural gas liquids businesses of Duke Energy Corporation and Phillips
Petroleum Company. The transaction in which those businesses were combined is
referred to in this prospectus as the "Combination." Our certificate of
incorporation limits the scope of our business to the midstream natural gas
industry in the United States and Canada, the marketing of natural gas liquids
("NGLs") in Mexico and the transportation, marketing and storage of other
petroleum products, unless otherwise approved by our Board of Directors and Duke
Energy (so long as it owns a majority of our outstanding common stock).
Unless the context otherwise requires, descriptions of assets, operations
and results in this prospectus give effect to the Combination and related
transactions, the transfer to us of additional midstream natural gas assets
acquired by Duke Energy or Phillips prior to the Combination and the transfer to
us of the general partner of TEPPCO Partners, L.P. all of which are described in
more detail under "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- The Combination." In this prospectus, the terms
"we," "us" and "our" refer to Duke Energy Field Services Corporation and our
subsidiaries, including our principal subsidiary, Duke Energy Field Services,
LLC (which we refer to as "Field Services LLC") giving effect to the Combination
and the other transactions described above.
OUR COMPANY
The midstream natural gas industry is the link between the exploration and
production of raw natural gas and the delivery of its components to end-use
markets. We operate in the two principal segments of the midstream natural gas
industry:
- natural gas gathering, processing, transportation, marketing and storage;
and
- NGLs fractionation, transportation, marketing and trading.
We are the largest gatherer of raw natural gas, based on wellhead volume,
and the largest producer of NGLs in North America. We are also one of the
largest marketers of NGLs in North America. In 1999:
- we gathered and/or transported an average of approximately 7.3 billion
cubic feet per day of raw natural gas;
- we produced an average of approximately 400,000 barrels per day of NGLs;
and
- we marketed and traded an average of approximately 486,000 barrels per
day of NGLs.
During 1999, our natural gas gathering, processing, transportation,
marketing and storage segment produced $981.5 million of gross margin and $583.1
million of earnings before interest, taxes and depreciation and amortization
("EBITDA"), excluding general and administrative expenses, and our NGL
fractionation, transportation, marketing and trading segment produced $38.3
million of gross margin and $38.1 million of EBITDA, excluding general and
administrative expenses.
We gather raw natural gas through gathering systems located in seven major
natural gas producing regions: Permian Basin, Mid-Continent, East Texas-Austin
Chalk-North Louisiana, Onshore Gulf of Mexico, Rocky Mountains, Offshore Gulf of
Mexico and Western Canada. Our gathering systems consist of approximately 57,000
miles of gathering pipe, with approximately 38,000 connections to active
producing wells.
4
<PAGE> 7
Our natural gas processing operations involve the separation of raw natural
gas gathered both by our gathering systems and by third-party systems into NGLs
and residue gas. We process the raw natural gas at our 70 owned and operated
plants and at 13 third-party operated facilities in which we hold an equity
interest.
The NGLs separated from the raw natural gas by our processing operations
are either sold and transported as "NGL raw mix" or further separated through a
process known as fractionation into their individual components (ethane,
propane, butanes and natural gasoline) and then sold as components. We
fractionate NGL raw mix at our 12 owned and operated processing facilities and
at two third-party operated fractionators located on the Gulf Coast in which we
hold an equity interest.
We sell NGLs to a variety of customers ranging from large, multi-national
petrochemical and refining companies to small regional retail propane
distributors. Substantially all of our NGL sales are made at market-based
prices, including approximately 40% of our NGL production that is committed to
Phillips under an existing 15-year contract. We market approximately 370,000
barrels per day of our NGLs processed at our owned and operated facilities and
approximately 40,000 barrels per day of NGLs processed at third-party operated
facilities and trade approximately 75,000 barrels per day of NGLs at market
centers.
The residue gas that results from our processing is sold at market-based
prices to marketers or end-users, including large industrial customers and
natural gas and electric utilities serving individual consumers. We market
residue gas through our wholly owned gas marketing company. We also store
residue gas at our 8.5 billion cubic foot natural gas storage facility.
On March 31, 2000, we obtained by transfer from Duke Energy the general
partner of TEPPCO Partners, L.P., a publicly traded limited partnership which
owns and operates a network of pipelines for refined products and crude oil. The
general partner is responsible for the management and operations of TEPPCO. We
believe that our ownership of the general partner of TEPPCO improves our
business position in the transportation sector of the midstream natural gas
industry and provides additional flexibility in pursuing our disciplined
acquisition strategy by providing an alternative acquisition vehicle. It also
provides us with an opportunity to sell appropriate assets currently held by our
company to TEPPCO. Through our ownership of the general partner of TEPPCO we
have the right to receive from TEPPCO incentive cash distributions in addition
to a 2% share of distributions based on our general partner interest. At
TEPPCO's 1999 per unit distribution level, the general partner:
- receives approximately 14% of the cash distributed by TEPPCO to its
partners, which consists of 12% from the incentive cash distribution and
2% from the general partner interest; and
- under the incentive cash distribution provisions, receives 50% of any
increase in TEPPCO's per unit cash distributions.
TEPPCO has agreed to acquire Atlantic Richfield Company's 50% ownership
interest in Seaway Pipeline Company for $355 million. Seaway Pipeline Company
owns a 500-mile crude oil pipeline that extends from a marine terminal at
Freeport, Texas to Cushing, Oklahoma having a capacity of 350,000 barrels per
day, a 550-mile refined products pipeline that extends from Pasadena, Texas to
Cushing having a capacity of 85,000 barrels per day and a crude oil terminal
facility in the Houston area. TEPPCO will assume ARCO's role as operator of
Seaway. The transaction is contingent upon satisfaction of regulatory
requirements.
OUR BUSINESS STRATEGY
We are the largest gatherer of raw natural gas and the largest producer and
one of the largest marketers of NGLs in North America. We have significant
midstream natural gas operations in five of the largest natural gas producing
regions in North America. Our certificate of incorporation limits the scope of
our business to the midstream natural gas industry in the United States and
Canada, the marketing of NGLs in Mexico and the transportation, marketing and
storage of other petroleum products, unless otherwise approved by our Board of
Directors and Duke Energy (so long as it owns a majority of our outstanding
common stock). To
5
<PAGE> 8
take advantage of the anticipated growth in natural gas demand in North America,
we are pursuing the following strategies:
- Capitalize on the size and focus of our existing operations. We intend to
use the size, scope and concentration of our assets in our regions of
operation to take advantage of growth opportunities and to acquire
additional supplies of raw natural gas. Our significant market presence
and asset base generally provide us a competitive advantage in capturing
new supplies of raw natural gas because of our resulting lower costs of
connection to new wells and of processing additional raw natural gas. In
addition, we believe our size and geographic diversity allow us to
benefit from the growth of natural gas production in multiple regions
while mitigating the adverse effects from a downturn in any one region.
- Increase our presence in each aspect of the midstream business. We are
active in each significant aspect of the midstream natural gas value
chain, including raw natural gas gathering, processing and
transportation, NGL fractionation and NGL and residue gas transportation
and marketing. Each link in the value chain provides us with an
opportunity to earn incremental income from the raw natural gas that we
gather and from the NGLs and residue gas that we produce. We intend to
grow our significant NGL market presence by investing in additional NGL
infrastructure, including pipelines, fractionators and terminals.
- Increase our presence in high growth production areas. According to the
Energy Information Administration's report "Annual Energy Outlook 2000"
(the "EIA Report") production from areas such as Western Canada, Onshore
Gulf of Mexico, Rocky Mountains and Offshore Gulf of Mexico is expected
to increase significantly to meet anticipated increases in demand for
natural gas in North America. We intend to use our strategic asset base
in these growth areas and our leading position in the midstream natural
gas industry as a platform for future growth in these areas. We plan to
increase our operations in these areas by following a disciplined
acquisition strategy, expanding existing infrastructure and constructing
new gathering lines and processing facilities.
- Capitalize on proven acquisition skills in a consolidating industry. In
addition to pursuing internal growth by attracting new raw natural gas
supplies, we intend to use our substantial acquisition and integration
skills to continue to participate selectively in the consolidation of the
midstream natural gas industry. We have pursued a disciplined acquisition
strategy focused on acquiring complementary assets during periods of
relatively low commodity prices and integrating the acquired assets into
our operations. Since 1996, we have completed over 20 acquisitions,
increasing our raw natural gas processing capacity by over 275%. These
acquisitions demonstrate our ability to successfully identify, acquire
and integrate attractive midstream natural gas operations.
- Further streamline our low-cost structure. Our economies of scale,
operating efficiency and resulting low cost structure enhance our ability
to attract new raw natural gas supplies and generate current income. The
low-cost provider in any region can more readily attract new raw natural
gas volumes by offering more competitive terms to producers. We believe
the Combination provides us with a complementary base of assets from
which to further extract operating efficiencies and cost reductions,
while continuing to provide superior customer service.
---------------------
We were incorporated in the State of Delaware on December 8, 1999. Our
principal executive offices are located at 370 17th Street, Suite 900, Denver,
Colorado 80202, and our telephone number is (303) 595-3331.
6
<PAGE> 9
THE OFFERINGS
The following information does not include approximately 958,000 shares of
common stock issuable upon the exercise of employee stock options expected to be
granted concurrently with the offerings but does include approximately 110,500
shares of our common stock issued under restricted stock awards expected to be
granted to our officers and employees concurrently with the offerings.
Common stock offered:
U.S. offering............ shares
International offering... shares
Total............ 26,300,000 shares
Common stock to be
outstanding after the
offerings................ 140,752,211 shares
Over-allotment option...... 3,945,000 shares. Unless the context otherwise
requires, the information in this prospectus
assumes that the underwriters do not exercise the
over-allotment option.
Use of proceeds............ We expect the net proceeds to us from this sale of
common stock to be approximately $521 million. We
intend to use the net proceeds from the offerings
to repay a portion of the indebtedness incurred in
connection with the Combination.
Dividend policy............ We intend to declare and pay quarterly cash
dividends of $.06 per share, depending on our
financial results and action of our Board of
Directors. We expect the first dividend to be
payable with respect to the third quarter of 2000.
Proposed NYSE symbol....... "DEF"
RISK FACTORS
You should carefully read and consider all of the information included in
this prospectus. In particular, you should evaluate the specific factors
detailed under "Risk Factors" and "Cautionary Statement About Forward-Looking
Statements" before purchasing shares of our common stock.
7
<PAGE> 10
PRESENTATION OF FINANCIAL INFORMATION AND OTHER DATA
Duke Energy Field Services Corporation is a new company which holds the
combined North American midstream natural gas businesses of Duke Energy and
Phillips.
Because our operations have only recently been combined and these
operations have grown significantly through acquisitions, our historical and pro
forma financial information and operating data may not provide an accurate
indication of:
- what our actual results would have been if the transactions presented on
a pro forma basis had actually been completed as of the dates presented;
or
- what our future results of operations are likely to be.
HISTORICAL FINANCIAL INFORMATION AND OTHER DATA
From a financial reporting perspective, we are the successor to Duke
Energy's North American midstream natural gas business. The subsidiaries of Duke
Energy that conducted this business were contributed to Duke Energy Field
Services Corporation in December 1999 in contemplation of the Combination. Duke
Energy Field Services Corporation and these former subsidiaries of Duke Energy
collectively are referred to in this prospectus as the "Predecessor Company."
The historical financial statements and related financial and other data
included in this prospectus reflect the business of the Predecessor Company.
This historical financial information and other data should be viewed in light
of the following:
- the Combination is reflected as a March 31, 2000 acquisition of the
midstream natural gas business contributed to our company by Phillips in
the Combination;
- the Predecessor Company's acquisition of Union Pacific Fuels is reflected
as a March 31, 1999 acquisition by the Predecessor Company; and
- the historical financial statements of the Predecessor Company do not
include the results of the general partner of TEPPCO.
For your additional information, we have also included the audited
financial statements of:
- the midstream natural gas business of Phillips that was transferred to us
in the Combination and
- Union Pacific Fuels.
PRO FORMA FINANCIAL AND OTHER INFORMATION
In addition to the historical financial information and other data, this
prospectus includes:
- unaudited pro forma financial statements of our company for 1999 and the
three months ended March 31, 2000, each reflecting:
- the Combination and the sale of our common stock in the offerings;
- the Predecessor Company's acquisition of Union Pacific Fuels;
- the transfer to us of additional midstream natural gas assets
acquired by Duke Energy or Phillips prior to consummation of the
Combination; and
- the transfer to us of the general partner of TEPPCO,
in each case as if the transactions had occurred on January 1, 1999 for
income statement purposes; and
- combined financial and other data giving effect to the Union Pacific
Fuels acquisition and the Combination, as if each had occurred on January
1, 1995.
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SUMMARY HISTORICAL AND PRO FORMA COMBINED
FINANCIAL AND OTHER DATA
The following table sets forth summary historical financial and other data
for the Predecessor Company. The historical income statement data and cash flow
data for each of the three years ended December 31, 1999 and the historical
balance sheet data as of December 31 in each of those three years have been
derived from the Predecessor Company's audited historical financial statements.
The historical financial data for the three months ended March 31, 2000 has been
derived from unaudited financial statements. The historical data set forth below
relates only to the Predecessor Company and does not reflect the results of
operations or financial condition of the Phillips businesses transferred to us
in the Combination. In addition, the following table sets forth selected pro
forma financial and operating data, which reflect the historical results of
operations of the Predecessor Company, adjusted for:
- the acquisition of the midstream natural gas business of Phillips in the
Combination;
- the acquisition of Union Pacific Fuels;
- incurrence of indebtedness to fund the cash distributions to Duke Energy
and Phillips in connection with the Combination as described in
"Management's Discussion and Analysis of Financial Condition and Results
of Operations;"
- the offerings and the expected application of the estimated proceeds;
- the transfer to our company of additional midstream natural gas assets
acquired by Duke Energy or Phillips prior to consummation of the
Combination; and
- the transfer to our company of the general partner of TEPPCO;
as if all had occurred as of January 1, 1999 for income statement purposes and
March 31, 2000 for balance sheet purposes. The data should be read in
conjunction with the financial statements and related notes and other financial
information appearing elsewhere in this prospectus. The pro forma data set forth
below are not necessarily indicative of results that may occur in the future.
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA
------------ ------------
THREE MONTHS THREE MONTHS
PREDECESSOR COMPANY HISTORICAL PRO FORMA ENDED ENDED
------------------------------------ ---------- MARCH 31, MARCH 31,
1997 1998 1999(1)(2) 1999(1) 2000(3) 2000(3)
---------- ---------- ---------- ------- ------------ ------------
(IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Total operating
revenues............... $1,801,832 $1,584,320 $3,458,310 $5,574,580 $1,451,211 $2,050,798
Total cost and
expenses............... 1,675,885 1,538,445 3,353,539 5,312,987 1,399,289 1,908,789
Earnings before interest
and tax................ 135,731 57,720 127,273 288,931 58,681 151,977
Interest expense......... 51,113 52,403 52,915 171,613 14,477 42,904
Net income............... 51,238 2,028 43,329 63,502 26,852 64,938
OTHER DATA:
EBITDA(4)................ $ 203,432 $ 133,293 $ 258,061 $ 556,328 $ 96,580 $ 220,247
Gas transported and/or
processed (TBtu/d)..... 3.4 3.6 5.1 7.3 6.0 7.9
NGL production (MBbl/d).. 108 110 192 400 231 415
MARKET DATA:
Average NGL price (per
gallon)(5)............. $.35 $.26 $.34 $.33 $.50 $.50
Average natural gas price
(per MMBtu)(6)......... $2.59 $2.11 $2.27 $2.27 $2.52 $2.52
BALANCE SHEET DATA (END OF
PERIOD):
Total assets............. $1,639,806 $1,770,838 $3,471,835 $6,312,292 $6,089,567
Long-term debt........... $ 101,600 $ 101,600 $ 101,600 $ --(7) $ --(7)
</TABLE>
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(1) Includes $34.0 million of losses from risk management activities recorded in
total operating revenues. Duke Energy commenced risk management activities
for its midstream natural gas business at the end of 1998. Activity for
periods prior to 1999 was not significant.
(2) Includes the results of operations of Union Pacific Fuels for the nine
months ended December 31, 1999. Union Pacific Fuels was acquired by the
Predecessor Company on March 31, 1999.
(3) Includes $46.7 million of losses from risk management activities recorded in
total operating revenues.
(4) EBITDA consists of income from continuing operations before interest
expense, income tax expense, and depreciation and amortization expense, less
interest income. EBITDA is not a measurement presented in accordance with
generally accepted accounting principles. You should not consider it in
isolation from, or as a substitute for, net income or cash flow measures
prepared in accordance with generally accepted accounting principles or as a
measure of our profitability or liquidity. EBITDA is included as a
supplemental disclosure because it may provide useful information regarding
our ability to service debt and to fund capital expenditures.
(5) Based on index prices from the Mont Belvieu, Texas and Conway, Kansas market
hubs that are weighted by our component and location mix for the periods
indicated.
(6) Based on the NYMEX Henry Hub prices for the periods indicated.
(7) We expect to have $2.1 billion of short-term indebtedness outstanding after
the offerings and expect to convert a significant portion of this short-term
debt to long-term debt as market conditions permit. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
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ADDITIONAL FINANCIAL AND OTHER DATA
The following table sets forth additional financial and other data of our
company. The additional financial and other data set forth below give effect to
the Combination and the transfer to our company of additional midstream natural
gas assets acquired by Duke Energy or Phillips immediately prior to consummation
of the Combination, which were completed on March 31, 2000 and to the
acquisition of Union Pacific Fuels, which occurred on March 31, 1999, as if each
occurred on January 1, 1995.
The additional financial and other data set forth below should not be
considered to be indicative of:
- actual results that would have been realized had the Combination and the
acquisition of Union Pacific Fuels actually occurred on January 1, 1995;
or
- results of our future operations.
The data should be read in conjunction with the financial statements and related
notes and other financial information appearing elsewhere in this prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
-------------------------------------------------------------- --------------------------
1995 1996 1997 1998 1999(1) 1999(2) 2000(2)
---------- ---------- ---------- ---------- ---------- ------------ -----------
(IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Total operating
revenues.............. $2,413,871 $3,998,273 $4,769,072 $4,302,697 $5,574,580 $959,000 $2,050,798
Costs of natural gas and
petroleum products.... 1,729,278 2,976,059 3,798,465 3,527,533 4,554,776 762,000 1,703,092
---------- ---------- ---------- ---------- ---------- -------- ----------
Gross margin............ $ 684,593 $1,022,214 $ 970,607 $ 775,164 $1,019,804 $197,000 $ 347,706
========== ========== ========== ========== ========== ======== ==========
OTHER DATA:
Gas transported and/or
processed (TBtu/d).... 5.4 6.5 7.5 7.3 7.3 7.0 7.9
NGLs
production(MBbl/d).... 277 313 358 373 400 382 415
MARKET DATA:
Average NGL price (per
gallon)(3)............ $.28 $.38 $.34 $.25 $.33 $.22 $.50
Average natural gas
(price per
MMBtu)(4)............. $1.64 $2.59 $2.59 $2.11 $2.27 $1.75 $2.52
</TABLE>
- ---------------
(1) Includes $34.0 million of losses from risk management activities recorded in
total operating revenues. Duke Energy commenced risk management activities
for its midstream natural gas business at the end of 1998. Activity for
periods prior to 1999 was not significant.
(2) Includes $4.0 million of hedging gain and $46.7 million of hedging loss for
the three months ended March 31, 1999 and 2000, respectively.
(3) Based on index prices from the Mont Belvieu and Conway market hubs that are
weighted by our component and location mix for the periods indicated.
(4) Based on the NYMEX Henry Hub prices for the periods indicated.
11
<PAGE> 14
RISK FACTORS
Investing in our common stock will provide you with an equity ownership
interest in our company. As a stockholder, you will be subject to risks inherent
in our business. The performance of your shares will reflect the performance of
our business relative to, among other things, competition, market conditions and
general economic and industry conditions. The value of your investment may
increase or decrease and you could suffer a loss. You should carefully consider
the risks described below as well as the other information contained in this
prospectus. Additional risks currently not known to us or that we currently deem
immaterial may also impair our business operations.
RISKS RELATED TO OUR BUSINESS AND OPERATIONS
OUR BUSINESS IS DEPENDENT UPON PRICES AND MARKET DEMAND FOR OIL, NATURAL
GAS AND NGLS, WHICH ARE BEYOND OUR CONTROL AND HAVE BEEN EXTREMELY VOLATILE.
We are subject to significant risks due to fluctuations in commodity
prices, primarily with respect to the prices of NGLs that we own as a result of
our processing activities. For example, based upon our portfolio of supply
contracts in 1999, and excluding the effects of our commodities risk management
program, a decrease of $.01 per gallon in the price of NGLs and of $.10 per
million Btus in the average price of natural gas throughout 1999 would have
resulted in changes in pre-tax net income of approximately ($24) million and $1
million, respectively. In the past, the prices of residue gas and NGLs have been
extremely volatile and we expect this volatility to continue.
The markets and prices for residue gas and NGLs depend upon factors beyond
our control. These factors include demand for oil, natural gas and NGLs, which
fluctuate with changes in market and economic conditions and other factors,
including:
- the impact of weather on the demand for oil and natural gas;
- the level of domestic oil and natural gas production;
- the availability of imported oil and natural gas;
- the availability of local, intrastate and interstate transportation
systems;
- the availability and marketing of competitive fuels;
- the impact of energy conservation efforts; and
- the extent of governmental regulation and taxation.
WE MUST CONTINUALLY COMPETE FOR RAW NATURAL GAS SUPPLY, AND OUR SUCCESS
DEPENDS UPON THE AVAILABLE SUPPLY OF RAW NATURAL GAS.
In order to maintain or increase throughput levels in our raw natural gas
gathering systems and asset utilization rates at our processing plants, we must
continually contract for new raw natural gas supplies to offset natural declines
in connected supplies of raw natural gas. Our future growth will depend, in
part, upon whether we can contract for additional supplies at a greater rate
than the rate of natural decline in our currently connected supplies. The
primary factors affecting our ability to connect new wells to our gathering
facilities include our success in contracting for existing producing raw natural
gas supplies that are not committed to other systems and the level of drilling
activity near our gathering systems. Drilling activity generally increases (or
decreases) as oil and natural gas prices increase (or decrease). Our industry is
highly competitive, and we cannot assure you that we will be able to obtain
additional contracts for raw natural gas supplies.
Our results are materially affected by the volume of raw natural gas
processed at our facilities and asset utilization rates. Fluctuations in energy
prices can greatly affect production rates and investments by third parties in
the development of new oil and natural gas reserves. A material decrease in
natural gas production for a prolonged period in the areas where our gathering
facilities are located, as a result of depressed
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<PAGE> 15
commodity prices or otherwise, likely would have a material adverse effect on
our results of operations and financial position.
BECAUSE WE ARE A NEWLY COMBINED COMPANY WITH NO COMBINED OPERATING HISTORY,
NEITHER OUR HISTORICAL NOR OUR PRO FORMA FINANCIAL AND OPERATING DATA MAY BE
REPRESENTATIVE OF OUR FUTURE RESULTS.
We are a newly combined company with no combined operating history. Our
lack of a combined operating history may make it difficult to forecast our
future operating results. Our historical financial statements included in this
prospectus reflect the historical results of operations, financial position and
cash flows of the midstream natural gas businesses of Duke Energy prior to the
Combination. The unaudited pro forma financial information included in this
prospectus are based on the two separate midstream businesses of Duke Energy and
Phillips prior to the Combination, each of which were managed separately prior
to the Combination. As a result, the historical and pro forma information may
not give you an accurate indication of what our actual results would have been
if the Combination had been completed at the beginning of the periods presented
or of what our future results of operations are likely to be. In addition, our
future results will depend on our ability to integrate our operations,
efficiently manage our combined facilities and execute our business strategy.
A SIGNIFICANT COMPONENT OF OUR GROWTH STRATEGY IS ACQUISITIONS, AND WE MAY
NOT BE ABLE TO COMPLETE FUTURE ACQUISITIONS SUCCESSFULLY.
Our business strategy has emphasized growth through strategic acquisitions,
but we cannot assure you that we will be able to continue to identify attractive
or willing acquisition candidates or that we will be able to acquire these
candidates on economically acceptable terms. Competition for acquisition
opportunities in our industry exists and may increase. Any increase in the level
of competition for acquisitions may increase the cost of, or cause us to refrain
from, completing acquisitions.
Our strategy of completing acquisitions is dependent upon, among other
things, our ability to obtain debt and equity financing and regulatory
approvals. Our ability to pursue our growth strategy may be hindered if we are
not able to obtain financing or regulatory approvals, including those under
federal and state antitrust laws. Our ability to grow through acquisitions and
manage such growth will require us to continue to invest in operational,
financial and management information systems and to attract, retain, motivate
and effectively manage our employees. The inability to manage the integration of
acquisitions effectively could have a material adverse effect on our financial
condition, results of operations and business. Pursuit of our acquisition
strategy may cause our financial position and results of operations to fluctuate
significantly from period to period.
GROWING OUR BUSINESS BY CONSTRUCTING NEW PIPELINES AND PROCESSING
FACILITIES SUBJECTS US TO CONSTRUCTION RISKS AND RISKS THAT RAW NATURAL GAS
SUPPLIES WILL NOT BE AVAILABLE UPON COMPLETION OF THE FACILITIES.
One of the ways we intend to grow our business is through the construction
of additions to our existing gathering systems and construction of new
processing facilities. The construction of gathering and processing facilities
requires the expenditure of significant amounts of capital, which may exceed our
expectations. Generally, we may have only limited raw natural gas supplies
committed to these facilities prior to their construction. Moreover, we may
construct facilities to capture anticipated future growth in production in a
region in which anticipated production growth does not materialize. As a result,
there is the risk that new facilities may not be able to attract enough raw
natural gas to achieve our expected investment return, which could adversely
affect our results of operations and financial condition.
WE OPERATE IN HIGHLY COMPETITIVE MARKETS IN COMPETITION WITH A NUMBER OF
DIFFERENT COMPANIES.
We face strong competition in our geographic areas of operations. Our
competitors include major integrated oil companies, interstate and intrastate
pipelines and raw natural gas gatherers and processors. Some of our competitors
offer more services or have greater financial resources and access to larger raw
natural gas supplies than we do. We compete with integrated companies that have
greater access to raw natural gas supply and are less susceptible to
fluctuations in price or volume, and some of our competitors that
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<PAGE> 16
have greater financial resources may have an advantage in competing for
acquisitions or other new business opportunities.
FEDERAL, STATE OR LOCAL REGULATORY MEASURES COULD ADVERSELY AFFECT OUR
BUSINESS.
While the Federal Energy Regulatory Commission, or FERC, does not directly
regulate the major portions of our operations, federal regulation, directly or
indirectly, influences certain aspects of our business and the market for our
products. As a raw natural gas gatherer and not an operator of interstate
transmission pipelines, we generally are exempt from FERC regulation under the
Natural Gas Act of 1938, but FERC regulation still significantly affects our
business. In recent years, FERC has pursued pro-competition policies in its
regulation of interstate natural gas pipelines. However, we cannot assure you
that FERC will continue this approach as it considers proposals by pipelines to
allow negotiated rates not limited by rate ceilings, pipeline rate case
proposals and revisions to rules and policies that may affect rights of access
to natural gas transportation capacity.
While state public utility commissions do not regulate our business, state
and local regulations do affect our business. We are subject to ratable take and
common purchaser statutes in the states where we operate. Ratable take statutes
generally require gatherers to take, without undue discrimination, natural gas
production that may be tendered to the gatherer for handling. Similarly, common
purchaser statutes generally require gatherers to purchase without undue
discrimination as to source of supply or producer. These statutes are designed
to prohibit discrimination in favor of one producer over another producer or one
source of supply over another source of supply. These statutes also have the
effect of restricting our right as an owner of gathering facilities to decide
with whom we contract to purchase or transport natural gas. Federal law leaves
any economic regulation of raw natural gas gathering to the states, and some of
the states in which we operate have adopted complaint-based or other limited
economic regulation of raw natural gas gathering activities. States in which we
operate that have adopted some form of complaint-based regulation, like
Oklahoma, Kansas and Texas, generally allow natural gas producers and shippers
to file complaints with state regulators in an effort to resolve grievances
relating to natural gas gathering access and rate discrimination. The states in
which we conduct operations administer federal pipeline safety standards under
the Pipeline Safety Act of 1968, and the "rural gathering exemption" under that
statute that our gathering facilities currently enjoy may be restricted in the
future. The "rural gathering exemption" under the Natural Gas Pipeline Safety
Act of 1968 presently exempts substantial portions of our gathering facilities
from jurisdiction under that statute, including those portions located outside
of cities, towns, or any area designated as residential or commercial, such as a
subdivision or shopping center. See "Business -- Regulation."
OUR BUSINESS INVOLVES HAZARDOUS SUBSTANCES AND MAY BE ADVERSELY AFFECTED BY
ENVIRONMENTAL REGULATION.
Many of the operations and activities of our gathering systems, plants and
other facilities are subject to significant federal, state and local
environmental laws and regulations. These include, for example, laws and
regulations that impose obligations related to air emissions and discharge of
wastes from our facilities and the clean up of hazardous substances that may
have been released at properties currently or previously owned or operated by us
or locations to which we have sent wastes for disposal. Various governmental
authorities have the power to enforce compliance with these regulations and the
permits issued under them, and violators are subject to administrative, civil
and criminal penalties, including civil fines, injunctions or both. Liability
may be incurred without regard to fault for the remediation of contaminated
areas. Private parties, including the owners of properties through which our
gathering systems pass, may also have the right to pursue legal actions to
enforce compliance as well as to seek damages for non-compliance with
environmental laws and regulations or for personal injury or property damage.
There is inherent risk of the incurrence of environmental costs and
liabilities in our business due to our handling of natural gas and other
petroleum products, air emissions related to our operations, historical industry
operations, waste disposal practices and the prior use of natural gas flow
meters containing mercury. In addition, the possibility exists that stricter
laws, regulations or enforcement policies could significantly increase our
compliance costs and the cost of any remediation that may become necessary. We
cannot assure you that we will not incur material environmental costs and
liabilities. Furthermore, we cannot assure you that our insurance will provide
sufficient coverage in the event an environmental claim is made against us.
14
<PAGE> 17
Our business may be adversely affected by increased costs due to stricter
pollution control requirements or liabilities resulting from non-compliance with
required operating or other regulatory permits. New environmental regulations
might adversely affect our products and activities, including processing,
storage and transportation, as well as waste management and air emissions.
Federal and state agencies also could impose additional safety requirements, any
of which could affect our profitability.
OUR BUSINESS INVOLVES MANY HAZARDS AND OPERATIONAL RISKS, SOME OF WHICH MAY
NOT BE COVERED BY INSURANCE.
Our operations are subject to the many hazards inherent in the gathering,
compressing, treating and processing of raw natural gas and NGLs and storage of
residue gas, including ruptures, leaks and fires. These risks could result in
substantial losses due to personal injury and/or loss of life, severe damage to
and destruction of property and equipment and pollution or other environmental
damage and may result in curtailment or suspension of our related operations. We
are not fully insured against all risks incident to our business. If a
significant accident or event occurs that is not fully insured, it could
adversely affect our operations and financial condition. See
"Business -- Insurance."
OUR USE OF DERIVATIVE FINANCIAL INSTRUMENTS HAS IN THE PAST AND COULD IN
THE FUTURE RESULT IN FINANCIAL LOSSES OR REDUCE OUR INCOME.
We use futures and option contracts traded on the New York Mercantile
Exchange and over-the-counter options and price and basis swaps with other
natural gas merchants and financial institutions. Use of these instruments is
intended to reduce our exposure to short-term volatility in commodity prices. We
could, however, incur financial losses or fail to recognize the full value of a
market opportunity as a result of volatility in the market values of the
underlying commodities or if one of our counterparties fails to perform under a
contract.
Duke Energy has conducted our commodity risk management activities since
late 1998. Prior to that time, we did not engage in significant commodity risk
management activities. In the past, Duke Energy used crude oil price swaps to
hedge a portion of our exposure to decreasing NGL prices and generally increased
the level of hedging as prices increased. This strategy resulted in a $34.0
million hedging loss in 1999 and a $46.7 million hedging loss in the first
quarter of 2000 due to crude oil prices rising above the level at which they
were hedged. Effective with the Combination, we began conducting our commodity
risk management activities independent of Duke Energy. We anticipate that we
will generally hedge a lower percentage of our cash flows compared to the
historical hedging levels undertaken by Duke Energy on our behalf.
For additional information about our risk management activities, including
our use of derivative financial instruments, see "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Qualitative and
Quantitative Disclosure about Market Risk."
OUR SUCCESS DEPENDS ON KEY MEMBERS OF OUR MANAGEMENT, THE LOSS OF WHOM
COULD DISRUPT OUR BUSINESS OPERATIONS.
We depend on the continued employment and performance of Jim W. Mogg,
Michael J. Panatier, Mark A. Borer, Michael J. Bradley, David D. Frederick,
Robert F. Martinovich, William W. Slaughter and Martha B. Wyrsch. We have
entered into an employment agreement with Mr. Panatier and a consulting
agreement with Mr. Slaughter. See "Management -- Employment and Consulting
Agreements." If our key managers resign or become unable to continue in their
present roles and are not adequately replaced, our business operations could be
materially adversely affected. We do not maintain any "key man" life insurance
for any officers. See "Management."
RISKS RELATED TO OUR RELATIONSHIP WITH DUKE ENERGY AND PHILLIPS
DUKE ENERGY AND PHILLIPS WILL CONTROL THE OUTCOME OF STOCKHOLDER VOTING AND
MAY EXERCISE THEIR VOTING POWER IN A MANNER ADVERSE TO YOU.
After the offerings, Duke Energy and Phillips will together hold
approximately 81.24% of the outstanding common stock in our company. The exact
allocation of these shares between Duke Energy and Phillips will be
15
<PAGE> 18
determined based on the average of the closing prices of our common stock on the
New York Stock Exchange Composite Tape on its first five trading days. Assuming
that the five-day average is the same as the assumed initial public offering
price, after the offerings Duke Energy will indirectly own approximately 58.65%
(57.05% if the underwriters fully exercise their over-allotment option) and
Phillips will indirectly own approximately 22.59% (21.97% if the underwriters
fully exercise their over-allotment option) of our outstanding common stock.
Although the exact allocation between Duke Energy and Phillips may vary, upon
completion of the offerings, Duke Energy will, in any event, control our company
through its share ownership and representation on our Board of Directors.
Accordingly, Duke Energy and Phillips are in a position to control the
outcome of matters requiring a stockholder vote, including the election of
directors, adoption of an amendment to our certificate of incorporation or
bylaws or approving transactions involving a change of control. In addition, our
certificate of incorporation grants each of Duke Energy and Phillips the right
to purchase shares of common stock in our future public offerings in an amount
sufficient to maintain its percentage ownership in our company so long as each
owns at least 20% of our common stock.
Duke Energy and Phillips have agreed to vote their shares of common stock
in a manner that ensures that seven designees of Duke Energy (two of whom are
required to be independent directors) and four designees of Phillips (one of
whom is required to be an independent director) are elected to our Board of
Directors. Our bylaws require the approval of at least eight of our 11 directors
for authorization of a variety of corporate actions, including significant
acquisitions, dispositions, capital expenditures and borrowings. As a result,
Duke Energy and Phillips have the ability to control our policies, management
and affairs, including decisions regarding the acquisition or disposition of
assets, business combinations, issuances of common stock and the declaration of
dividends. For example, Duke Energy and Phillips could prevent transactions that
would dilute their respective ownership interests in our company, including
prospective acquisitions that we would finance by issuing shares of our common
stock. The interests of Duke Energy and Phillips may differ from yours, and they
may vote their common stock in a manner that may adversely affect you.
SEVERAL OF OUR DIRECTORS AND OFFICERS MAY HAVE CONFLICTS OF INTEREST
BECAUSE THEY ARE ALSO DIRECTORS OR OFFICERS OF DUKE ENERGY, PHILLIPS OR THE
GENERAL PARTNER OF TEPPCO.
After completion of the offerings, five of our directors also will be past
or current directors or officers of Duke Energy, four of the directors will be
past or current directors or officers of Phillips and four of our directors or
officers will be directors of the general partner of TEPPCO, a situation that
may create conflicts of interest. These directors and officers have dual
responsibilities. Directors and officers of Duke Energy and Phillips have
fiduciary duties to manage Duke Energy and Phillips, including their investments
in subsidiaries and affiliates such as us, in a manner beneficial to Duke Energy
and Phillips and their stockholders. Directors and officers of the general
partner of TEPPCO have fiduciary duties to manage the business of TEPPCO in a
manner beneficial to TEPPCO and its unitholders, including its public
unitholders. As directors and officers of our company, they also have fiduciary
duties to manage us in a manner beneficial to us and our stockholders. Their
duties as directors or officers of Duke Energy, Phillips or the general partner
of TEPPCO may conflict with their duties as directors of our company with
respect to corporate opportunities, business dealings among Duke Energy,
Phillips, TEPPCO and us and other corporate matters. For example, Duke Energy,
Phillips, TEPPCO and our company are engaged in related lines of business, and
we may have similar acquisition strategies. As a result, conflicts may arise
because acquisition opportunities that may be beneficial to more than one
company may be presented to our officers or directors who are also officers or
directors of Duke Energy, Phillips or the general partner of TEPPCO. Other
conflicts of interest may arise in the future as a result of the extensive
relationships among our company, Duke Energy, Phillips and TEPPCO. The
resolution of these conflicts may not always be in our or our stockholders' best
interest.
OUR BUSINESS OPPORTUNITIES COULD BE LIMITED BECAUSE DUKE ENERGY, PHILLIPS
AND THEIR RESPECTIVE AFFILIATES MAY COMPETE WITH US IN MIDSTREAM NATURAL GAS
ACTIVITIES, AND WE MAY ONLY ENGAGE IN THE LIMITED ACTIVITIES DESCRIBED IN THIS
PROSPECTUS.
Our certificate of incorporation limits the scope of our business to the
midstream natural gas industry in the United States and Canada and the marketing
of NGLs in Mexico and does not permit us to pursue other
16
<PAGE> 19
potentially profitable activities. Duke Energy and its affiliates are permitted
to engage in the midstream natural gas industry and related businesses, even if
it has a negative competitive effect on us. We cannot amend these provisions of
our certificate of incorporation without Duke Energy's prior consent, which Duke
Energy may withhold at its sole discretion. Phillips also has retained midstream
natural gas assets in its exploration and production organization and is
permitted to engage in the midstream natural gas industry and related
businesses, even if it has a negative competitive effect on our company.
DUKE ENERGY'S OWNERSHIP INTEREST AND PROVISIONS CONTAINED IN OUR
CERTIFICATE OF INCORPORATION COULD DISCOURAGE A TAKEOVER ATTEMPT, WHICH MAY
REDUCE OR ELIMINATE THE LIKELIHOOD OF A CHANGE OF CONTROL TRANSACTION AND,
THEREFORE, YOUR ABILITY TO SELL YOUR SHARES FOR A PREMIUM.
In addition to Duke Energy's controlling position, provisions contained in
our certificate of incorporation, such as limitations on stockholder proposals
at meetings of stockholders and the inability of stockholders to call special
meetings, could make it more difficult for a third party to acquire control of
our Company, even if some of our stockholders considered such a change of
control to be beneficial. Our certificate of incorporation also authorizes our
Board of Directors to issue preferred stock without stockholder approval. If our
Board of Directors elects to issue preferred stock, it could make it even more
difficult for a third party to acquire us, which may reduce or eliminate your
ability to sell your shares of common stock at a premium. See "Description of
Capital Stock."
OUR COSTS RELATED TO CORPORATE SERVICES COULD INCREASE AS OUR RELATIONSHIP
WITH DUKE ENERGY OR PHILLIPS CHANGES IN THE FUTURE.
We have entered into agreements with Duke Energy and Phillips under which
Duke Energy and Phillips provide corporate support services to us. Our
agreements with Duke Energy and Phillips expire, unless extended, on December
31, 2000. Replacing such services, either internally or through third-party
providers, may cause disruptions in our operations or result in costs in excess
of our historical costs for similar services.
PHILLIPS HAS NOT YET COMPLETELY TRANSFERRED TO US RECORD TITLE TO ALL OF
ITS MIDSTREAM ASSETS THAT WERE TRANSFERRED TO US IN THE COMBINATION. IN THE
EVENT OF A BANKRUPTCY OF PHILLIPS, WE MAY NOT BE ABLE TO OBTAIN RECORD TITLE TO
THESE ASSETS.
Although Phillips has transferred to us the midstream natural gas assets it
contributed in the Combination, Phillips and its affiliates continue to hold
record title to some of the real property for our benefit. Although Phillips is
in the process of transferring record title to us, the process may not be
completed for some time. In the event of a Phillips bankruptcy before record
title has been conveyed to us, we may have difficulty or be unable to obtain
record title to these properties. The failure to complete this planned record
title transfer could have a material adverse effect on our business, operations
and financial results.
RISKS RELATED TO OWNERSHIP OF OUR COMMON STOCK
YOU WILL EXPERIENCE IMMEDIATE AND SUBSTANTIAL DILUTION.
The initial public offering price is substantially higher than the
pre-offering net tangible book value per share of our common stock. Purchasers
of our common stock in the offerings will experience immediate and substantial
dilution. The dilution to new investors will be approximately $7.53 per share in
net tangible book value. See "Dilution."
THERE HAS BEEN NO PRIOR PUBLIC MARKET FOR OUR COMMON STOCK, AND THE PRICE
OF OUR STOCK MAY BE SUBJECT TO FLUCTUATIONS.
No market for our common stock existed prior to this offering, and although
we have applied to have our shares of common stock listed on the New York Stock
Exchange, we cannot assure you that a viable trading market for our common stock
will develop or be sustained.
The initial public offering price was determined by negotiations among us,
Duke Energy and the underwriters based on numerous factors. The market price of
our common stock after this offering may vary from the initial public offering
price, and you may not be able to resell your shares at or above the initial
public
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<PAGE> 20
offering price. The market price of our common stock is likely to be volatile
and could be subject to fluctuations in response to factors such as the
following, most of which are beyond our control:
- operating results that vary from the expectations of securities analysts
and investors;
- changes in expectations as to our future financial performance, including
financial estimates by securities analysts and investors;
- the operations, regulatory, market and other risks discussed in this
section;
- announcements by us or our competitors of significant contracts,
acquisitions, strategic partnerships, joint ventures or capital
commitments;
- announcements by third parties of significant claims or proceedings
against us; and
- future sales of our common stock.
In addition, the stock market has from time to time experienced extreme price
and volume fluctuations. These broad market fluctuations may adversely affect
the market price of our common stock.
FUTURE SALES OF OUR COMMON STOCK BY EXISTING STOCKHOLDERS COULD DEPRESS OUR
STOCK PRICE.
Sales of a substantial number of shares of our common stock after the
offerings could adversely affect the market price of our common stock by
introducing a significant increase in the supply of common stock to the market.
This increased supply could cause the market price of our common stock to
decline significantly.
After the offerings, we will have outstanding 140,752,211 shares of common
stock, and we will have reserved 4,000,000 shares of common stock for issuance
under our 2000 Long-Term Incentive Plan. All the shares of common stock sold in
the offerings will be freely tradable without restriction or further
registration under the federal securities laws unless purchased by one of our
"affiliates," as that term is defined in Rule 144 under the Securities Act of
1933. The remaining shares of outstanding common stock, including shares held by
Duke Energy, Phillips and their affiliates, will be "restricted securities"
under the Securities Act and will be subject to restrictions on the timing,
manner and volume of sales of restricted shares.
In connection with the offerings, we and our officers and directors, as
well as Duke Energy and Phillips, have agreed not to sell any shares of common
stock for a period of 180 days after the date of this prospectus without the
prior written consent of Morgan Stanley & Co. Incorporated. The lock-up to which
we are a party does not apply to our securities issued under our existing
benefit plans, including our 2000 Long-Term Incentive Plan. The lock-up to which
Duke Energy, Phillips and our officers and directors are a party does not apply
to our securities acquired by them in open market transactions after completion
of the offerings. Morgan Stanley & Co. Incorporated has sole discretion to waive
any of the provisions of any of these lock-up agreements. Upon expiration of the
lock-up period, the shares outstanding and owned by Duke Energy, Phillips and
their affiliates may be sold in the future without registration under the
Securities Act to the extent permitted by Rule 144 or any applicable exemption
under the Securities Act. Under a registration rights agreement between Duke
Energy, Phillips and our company, Duke Energy, Phillips and their affiliates
have the right to require us to register their shares of our common stock
following the lock-up period. The possibility that Duke Energy, Phillips or any
of their or our affiliates may dispose of shares of our common stock, or the
announcement or completion of any such transaction, could have an adverse effect
on the market price of our common stock. See "Shares Eligible for Future Sale."
CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING STATEMENTS
This prospectus contains statements that do not directly or exclusively
relate to historical facts. Such statements are "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995. You
can typically identify forward-looking statements by the use of forward-looking
words, such as "may," "could," "project," "believe," "anticipate," "expect,"
"estimate," "potential," "plan," "forecast" and other similar words.
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<PAGE> 21
All statements other than statements of historical facts contained in this
prospectus, including statements regarding our future financial position,
business strategy, budgets, projected costs and plans and objectives of
management for future operations, are forward-looking statements.
The forward-looking statements in this prospectus reflect our intentions,
plans, expectations, assumptions and beliefs about future events and are subject
to risks, uncertainties and other factors, many of which are outside our
control. Important factors that could cause actual results to differ materially
from the expectations expressed or implied in the forward-looking statements
include known and unknown risks. Known risks include, but are not limited to,
those listed in the "Risk Factors" section and elsewhere in this prospectus.
In light of these risks, uncertainties and assumptions, the events
described in the forward-looking statements in this prospectus might not occur
or might occur to a different extent or at a different time than described in
this prospectus. We undertake no obligation to update or revise our
forward-looking statements, whether as a result of new information, future
events or otherwise.
USE OF PROCEEDS
We expect the net proceeds to us from the offerings to be approximately
$521 million ($600 million if the underwriters fully exercise their
over-allotment option).
We intend to use the net proceeds that we receive from the offerings to
repay outstanding commercial paper. The proceeds of the commercial paper were
used to make one-time cash distributions of approximately $1.5 billion to Duke
Energy and approximately $1.2 billion to Phillips and for working capital
requirements. At April 30, 2000, our outstanding commercial paper had maturity
dates ranging from one day to 70 days, with annual interest rates ranging from
6.20% to 6.45%. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations -- The Combination" and "-- Liquidity and Capital
Resources."
DIVIDEND POLICY
Following consummation of the offerings, we currently anticipate paying
quarterly cash dividends on our common stock. Subject to attaining earnings
sufficient to pay such dividends and meet our other cash needs, our Board of
Directors currently intends to declare and pay an initial quarterly dividend of
$.06 per share of common stock payable October 16, 2000 to holders of record on
September 29, 2000. We expect cash flow from operations to be sufficient to fund
this dividend. See "Management's Discussion and Analysis of Financial Condition
and Results of Operations."
The declaration, amount and payment of dividends are at the discretion of
our Board of Directors and will depend upon our results of operations, financial
condition, cash requirements for our business, future prospects and other
factors determined to be relevant by our Board of Directors, as well as the
effect of any restrictive covenants in our credit agreements and debt
instruments. We cannot assure you that dividends will be paid in the future nor
can we assure you as to the amount of any dividends.
19
<PAGE> 22
DILUTION
If you invest in our common stock, your interest will be diluted to the
extent of the difference between the public offering price per share of our
common stock and the net tangible book value per share of our common stock after
the offerings. Considering the exchange of Phillips' member interest in Field
Services LLC for our common stock in connection with the offerings, all book
value determinations reflect minority interest prior to the offerings as
stockholders' equity. We calculate net book value per share by dividing the net
assets (total assets less liabilities) by the number of shares outstanding
before the offerings. We calculate net tangible book value per share by dividing
the net tangible assets (total assets less liabilities and net intangible
assets) by the number of shares of common stock outstanding before the
offerings.
Our net book value and net tangible book value as of March 31, 2000 were
approximately $16.06 and $10.82 per share, respectively. Without taking into
account any changes in net book value or net tangible book value after March 31,
2000, other than to give effect to the offerings (at an assumed initial public
offering price per share of $21.00), the application of the estimated net
proceeds from the offerings and deferred tax adjustments to intangibles, the pro
forma net book value of the common stock as of March 31, 2000 would have been
approximately $2,357.4 million, or $16.76 per share, and the pro forma net
tangible book value of the common stock as of such date would have been
approximately $1,894.8 million, or $13.47 per share. Assuming the offerings had
occurred at March 31, 2000, an immediate increase in net book value of $.70 per
share to the existing stockholders and an immediate pro forma dilution of $4.24
per share to new investors would have occurred. The following table shows the
effect of the offerings as if the offerings had occurred at March 31, 2000 and
illustrates the immediate increase in pro forma net tangible book value of $2.65
per share to the existing stockholders and an immediate pro forma dilution of
$7.53 per share to new investors:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share........... $21.00
Net tangible book value per share as of March 31,
2000................................................. $10.82
Increase in net tangible book value per share
attributable to the offerings........................ 2.65
------
Pro forma net tangible book value per share as of March
31, 2000 after giving effect to the offerings........... 13.47
------
Pro forma dilution per share to new investors............. $ 7.53
======
</TABLE>
The foregoing table assumes the underwriters do not exercise their
overallotment option, and it does not reflect restricted stock awards for
approximately 110,500 shares of common stock expected to be issued concurrently
with the offerings. Assuming all the restricted stock awards are granted, pro
forma net tangible book value per share would decrease $.01 per share to $13.46
per share.
The following table shows, on a pro forma as adjusted basis at March 31,
2000, the number of shares of common stock owned and the average price paid per
share by the existing stockholders (based on net book value) and by new
investors purchasing common stock from us in the offerings:
<TABLE>
<CAPTION>
SHARES PURCHASED TOTAL CONSIDERATION
----------------------- ----------------------- AVERAGE PRICE
NUMBER PERCENT AMOUNT PERCENT PER SHARE
------------- ------- ------------- ------- -------------
(IN MILLIONS) (IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Existing stockholders (including
anticipated restricted stock
awards).......................... 114.5 81.3% $1,836.9 76.9% $16.05
New investors...................... 26.3 18.7 552.3 23.1 21.00
----- ----- -------- ---- ------
Total......................... 140.8 100.0% $2,389.2 100% $16.97
===== ===== ======== ==== ======
</TABLE>
20
<PAGE> 23
CAPITALIZATION
The following table sets forth the total capitalization of our company as
of March 31, 2000:
- on a historical basis; and
- on a pro forma basis giving effect to:
- the financing of the Combination;
- the merger of the subsidiary of Phillips that indirectly holds
Phillips' minority interest into our company concurrently with the
offerings and the resulting issuance of shares of our common stock to
Phillips; and
- the sale of 26,300,000 shares of our common stock in the offerings and
the application of the estimated net proceeds from the offerings.
You should read the information below in conjunction with "Use of Proceeds,"
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and our consolidated financial statements.
<TABLE>
<CAPTION>
AS OF
MARCH 31, 2000
-------------------------
HISTORICAL PRO FORMA
---------- ----------
(IN THOUSANDS)
<S> <C> <C>
Short term debt............................................. $2,744,319(1) $2,138,400(2)
========== ==========
Minority interest........................................... $ 521,705 $ --
Stockholders' equity:
Common stock, $1.00 par value per share, 1,000 shares
authorized, 1,000 shares issued and outstanding
historical, $.01 par value per share, 500,000,000
shares authorized, 140,752,211 shares issued and
outstanding as adjusted................................ 1 408
Paid-in capital........................................... 1,115,241 2,156,020
Retained earnings......................................... 199,943 199,943
---------- ----------
Total stockholders' equity............................. 1,315,185 2,357,371
---------- ----------
Total capitalization................................... $1,836,890 $2,357,371
========== ==========
</TABLE>
- ---------------
(1) Represents distributions payable to Duke Energy and Phillips in connection
with the Combination.
(2) Represents outstanding commercial paper issued on April 3, 2000 to pay the
distributions payable to Duke Energy and Phillips, net of reductions
resulting from the use of proceeds of the offerings.
21
<PAGE> 24
SELECTED HISTORICAL AND PRO FORMA
COMBINED FINANCIAL AND OTHER DATA
The following table sets forth selected historical financial and other data
for the Predecessor Company. The historical income statement data and cash flow
data for each of the three years ended December 31, 1999 and the historical
balance sheet data as of December 31 in each of those three years have been
derived from the Predecessor Company's audited historical financial statements.
The historical financial information for 1995 and 1996 and the three months
ended March 31, 1999 and 2000 is derived from unaudited financial statements.
The historical data set forth below relates only to the Predecessor Company and
does not reflect the results of operations or financial condition of the
Phillips businesses transferred to us in the Combination. In addition, the
following table sets forth selected pro forma financial and other data, which
reflect the historical results of operations of the Predecessor Company,
adjusted for:
- the acquisition of the midstream natural gas business of Phillips in the
Combination;
- the acquisition of Union Pacific Fuels;
- incurrence of indebtedness to fund the cash distributions to Duke Energy
and Phillips in connection with the Combination as described in
"Management's Discussion and Analysis of Financial Condition and Results
of Operations;"
- the offerings and the expected application of the estimated proceeds;
- the transfer to our company of additional midstream natural gas assets
acquired by Duke Energy prior to consummation of the Combination; and
- the transfer to our company of the general partner of TEPPCO;
as if all had occurred as of January 1, 1999 for income statement purposes and
March 31, 2000 for balance sheet purposes. The data should be read in
conjunction with the financial statements and related notes and other financial
information appearing elsewhere in this prospectus. The pro forma data set forth
below are not necessarily indicative of results that may occur in the future.
<TABLE>
<CAPTION>
PREDECESSOR COMPANY HISTORICAL PRO FORMA
------------------------------------------------------------- ----------
1995 1996 1997 1998 1999(1)(2) 1999(1)
-------- ---------- ---------- ---------- ----------- ----------
(IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C> <C>
ANNUAL INCOME STATEMENT DATA:
Operating revenues:
Sales of natural gas and petroleum
products........................ $752,880 $1,321,111 $1,700,029 $1,469,133 $ 3,310,260 $5,268,927
Transportation, storage and
processing...................... 52,308 70,577 101,803 115,187 148,050 305,653
-------- ---------- ---------- ---------- ----------- ----------
Total operating revenues... 805,188 1,391,688 1,801,832 1,584,320 3,458,310 5,574,580
Costs and expenses:
Natural gas and petroleum
products........................ 601,533 1,070,805 1,468,089 1,338,129 2,965,297 4,554,776
Operating and maintenance......... 65,458 93,838 104,308 113,556 181,392 393,134
Depreciation and amortization..... 37,281 55,500 67,701 75,573 130,788 267,397
General and administrative........ 20,576 43,871 36,023 44,946 73,685 96,210
Net (gain) loss on sale of
assets.......................... (9,029) (2,350) (236) (33,759) 2,377 1,470
-------- ---------- ---------- ---------- ----------- ----------
Total costs and expenses... 715,819 1,261,664 1,675,885 1,538,445 3,353,539 5,312,987
Operating income.................... 89,369 130,024 125,947 45,875 104,771 261,593
Equity in earnings of unconsolidated
affiliates........................ 1,660 2,997 9,784 11,845 22,502 27,338
-------- ---------- ---------- ---------- ----------- ----------
Earnings before interest and tax.... 91,029 133,021 135,731 57,720 127,273 288,931
Interest expense.................... 20,115 12,747 51,113 52,403 52,915 171,613
-------- ---------- ---------- ---------- ----------- ----------
Earnings before income tax.......... 70,914 120,274 84,618 5,317 74,358 117,318
Income tax.......................... 37,299 35,665 33,380 3,289 31,029 53,816
-------- ---------- ---------- ---------- ----------- ----------
Net income.......................... $ 33,615 $ 84,609 $ 51,238 $ 2,028 $ 43,329 $ 63,502
======== ========== ========== ========== =========== ==========
Earnings per share(3)............... $ .45
==========
</TABLE>
22
<PAGE> 25
<TABLE>
<CAPTION>
PREDECESSOR COMPANY HISTORICAL PRO FORMA
------------------------------------------------------------- ----------
1995 1996 1997 1998 1999(1)(2) 1999(1)
-------- ---------- ---------- ---------- ----------- ----------
(IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C> <C>
OTHER DATA:
Cash flow data:
Cash flow from operations......... $ 173,357 $ 40,409 $ 173,136
Cash flow from investing
activities...................... (138,021) (203,625) (1,571,446)
Cash flow from financing
activities...................... (35,061) 162,514 1,398,934
Acquisitions and other capital
expenditures...................... $183,531 $ 524,730 $ 121,978 $ 185,479 $ 1,570,083 $ 429,847
EBITDA(4)........................... $128,310 $ 188,521 $ 203,432 $ 133,293 $ 258,061 $ 556,328
Gas transported and/or processed
(TBtu/d).......................... 1.9 2.9 3.4 3.6 5.1 7.3
NGLs production(MBbl/d)............. 55 79 108 110 192 400
MARKET DATA:
Average NGLs price per gallon(5).... $.29 $.39 $.35 $.26 $.34 $.33
Average natural gas price per
MMBtu(6).......................... $1.64 $2.59 $2.59 $2.11 $2.27 $2.27
BALANCE SHEET DATA (END OF PERIOD):
Total assets........................ $917,831 $1,459,416 $1,649,213 $1,770,838 $ 3,471,835
Long-term debt...................... $101,600 $ 101,600 $ 101,600 $ 101,600 $ 101,600
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
---------------------------------------------------
PREDECESSOR COMPANY HISTORICAL PRO FORMA
------------------------------- ----------
1999(8) 2000(8) 2000(8)
----------- ---------- ----------
(IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C>
QUARTERLY INCOME STATEMENT DATA:
Operating revenues:
Sales of natural gas and petroleum products....... $ 305,152 $1,415,465 $2,005,449
Transportation, storage and processing............ 29,845 35,746 45,349
----------- ---------- ----------
Total operating revenues................... 334,997 1,451,211 2,050,798
Costs and expenses:
Natural gas and petroleum products................ 272,530 1,278,511 1,703,092
Operating and maintenance......................... 29,096 49,039 99,424
Depreciation and amortization..................... 20,029 37,899 68,270
General and administrative........................ 16,112 29,701 33,952
Net (gain) loss on sale of assets................. (42) 4,139 4,051
----------- ---------- ----------
Total costs and expenses................... 337,725 1,399,289 1,908,789
----------- ---------- ----------
Operating income.................................... (2,728) 51,922 142,009
Equity in earnings of unconsolidated affiliates..... 3,286 6,759 9,968
----------- ---------- ----------
Earnings before interest and tax.................... 558 58,681 151,977
Interest expense.................................... (12,445) (14,477) (42,904)
----------- ---------- ----------
Earnings before income tax.......................... (11,887) 44,204 109,073
Income tax.......................................... (3,366) 17,352 44,135
----------- ---------- ----------
Net income (loss)................................... $ (8,521) $ 26,852 $ 64,938
=========== ========== ==========
Earnings per share(3)............................... $ .46
==========
OTHER DATA:
EBITDA(4)........................................... $ 20,587 $ 96,580 $ 220,247
Gas transported and/or processed (TBtu/d)........... 3.4 6.0 7.9
NGLs production(MBbl/d)............................. 108 231 415
MARKET DATA:
Average NGLs price per gallon(5).................... $ .23 $ .50 $ .50
Average natural gas price per MMBtu(6).............. $ 1.75 $ 2.52 $ 2.52
BALANCE SHEET DATA (END OF PERIOD):
Total assets........................................ $6,312,292 $6,089,567
Long-term debt...................................... $ --(7) $ --(7)
</TABLE>
23
<PAGE> 26
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------------ -----------------------
1997 1998 1999(1)(2) 1999(8) 2000(8)
---------- ---------- ---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
HISTORICAL SEGMENT INFORMATION:
Operating revenues:
Natural gas.............................. $1,683,483 $1,497,901 $2,483,197 $ 308,326 $ 899,214
NGLs..................................... 423,680 309,380 1,365,577 72,582 798,816
Intersegment............................. (305,331) (222,961) (390,464) (45,911) (246,819)
---------- ---------- ---------- ---------- ----------
Total operating revenues.......... $1,801,832 $1,584,320 $3,458,310 $ 334,997 $1,451,211
========== ========== ========== ========== ==========
Margin:
Natural gas.............................. $ 334,129 $ 243,787 $ 459,843 $ 61,711 $ 147,856
NGLs..................................... (386) 2,404 33,170 756 24,844
---------- ---------- ---------- ---------- ----------
Total margin...................... $ 333,743 $ 246,191 $ 493,013 $ 62,467 $ 172,700
========== ========== ========== ========== ==========
EBITDA(4):
Natural gas.............................. $ 239,841 $ 175,835 $ 298,698 $ 35,957 $ 101,741
NGLs..................................... (386) 2,404 33,048 742 24,540
Corporate................................ (36,023) (44,946) (73,685) (16,112) (29,701)
---------- ---------- ---------- ---------- ----------
Total EBITDA...................... $ 203,432 $ 133,293 $ 258,061 $ 20,587 $ 96,580
========== ========== ========== ========== ==========
EBIT(4):
Natural gas.............................. $ 174,248 $ 102,365 $ 179,273 $ 16,501 $ 67,711
NGLs..................................... (386) 2,404 23,975 742 21,513
Corporate................................ (38,131) (47,049) (75,975) (16,685) (30,543)
---------- ---------- ---------- ---------- ----------
Total EBIT........................ $ 135,731 $ 57,720 $ 127,273 $ 558 $ 58,681
========== ========== ========== ========== ==========
Total assets:
Natural gas.............................. $1,505,111 $2,754,447 $5,329,520
NGLs..................................... 5,137 225,702 191,337
Corporate................................ 260,590 491,686 791,435
---------- ---------- ----------
Total assets...................... $1,770,838 $3,471,835 $6,312,292
========== ========== ==========
</TABLE>
- ---------------
(1) Includes $34.0 million of hedging losses recorded in total operating
revenues. Duke Energy commenced risk management activities associated with
its midstream natural gas business at the end of 1998. Activity for periods
prior to 1999 was not significant.
(2) Includes the results of operations of Union Pacific Fuels for the nine
months ended December 31, 1999. Union Pacific Fuels was acquired by the
Predecessor Company on March 31, 1999.
(3) Earnings per share is not presented for historical periods since the
Predecessor Company was an indirect wholly owned subsidiary of Duke Energy.
Pro forma earnings per share reflects outstanding shares after the
Combination and the anticipated issuance of common stock from the offerings.
(4) EBITDA consists of income from continuing operations before interest
expense, income tax expense, and depreciation and amortization expense, less
interest income. EBIT consists of income from continuing operations before
interest expense and income tax expense, less interest income. Neither
EBITDA nor EBIT is a measurement presented in accordance with generally
accepted accounting principles. You should not consider either measure in
isolation from or as a substitute for net income or cash flow measures
prepared in accordance with generally accepted accounting principles or as a
measure of our profitability or liquidity. EBITDA is included as a
supplemental disclosure because it may provide useful information regarding
our ability to service debt and to fund capital expenditures.
(5) Based on index prices from the Mont Belvieu and Conway market hubs that are
weighted by our component and location mix for the periods indicated.
(6) Based on the NYMEX Henry Hub prices for the periods indicated.
(7) We expect to have $2.1 billion of short-term indebtedness outstanding after
the offerings and expect to convert a significant portion of this short-term
debt to long-term debt as market conditions permit. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources."
(8) Includes $4.0 million of hedging gain and $46.7 million of hedging loss for
the three months ended March 31, 1999 and 2000, respectively.
24
<PAGE> 27
ADDITIONAL FINANCIAL AND OTHER DATA
The following table sets forth additional financial and other data of our
company. The additional financial and other data set forth in the table below
give effect to the Combination and the transfer to our company of additional
midstream natural gas assets acquired by Duke Energy or Phillips prior to
consummation of the Combination, which were completed on March 31, 2000 and to
the acquisition of Union Pacific Fuels, which occurred on March 31, 1999, as if
each occurred on January 1, 1995.
The additional financial and other data set forth in the table below should
not be considered to be indicative of:
- actual results that would have been realized had the Combination and the
acquisition of Union Pacific Fuels actually occurred on January 1, 1995;
or
- results of our future operations.
The data should be read in conjunction with the financial statements and related
notes and other financial information appearing elsewhere in this prospectus.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
-------------------------------------------------------------- ---------------------
1995 1996 1997 1998 1999(1) 1999(2) 2000(2)
---------- ---------- ---------- ---------- ---------- -------- ----------
(IN THOUSANDS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Total operating revenues... $2,413,871 $3,998,273 $4,769,072 $4,302,697 $5,574,580 $959,028 $2,050,798
Costs of natural gas and
petroleum products....... 1,729,278 2,976,059 3,798,465 3,527,533 4,554,776 761,753 1,703,092
---------- ---------- ---------- ---------- ---------- -------- ----------
Gross margin............... $ 684,593 $1,022,214 $ 970,607 $ 775,164 $1,019,804 $197,275 $ 347,706
========== ========== ========== ========== ========== ======== ==========
OTHER DATA:
Gas transported and/or
processed (TBtu/d)....... 5.4 6.5 7.5 7.3 7.3 7.0 7.9
NGLs production(MBbl/d).... 277 313 358 373 400 382 415
MARKET DATA:
Average NGLs (price per
gallon)(3)............... $.28 $.38 $.34 $.25 $.33 $.22 $.50
Average natural gas (price
per MMBtu)(4)............ $1.64 $2.59 $2.59 $2.11 $2.27 $1.75 $2.52
</TABLE>
- ---------------
(1) Includes $34.0 million of losses from risk management activities recorded in
total operating revenues. Duke Energy commenced risk management activities
for its midstream natural gas business at the end of 1998. Activity for
periods prior to 1999 was not significant.
(2) Includes $4.0 million of hedging gain and $46.7 million of hedging loss for
the three months ended March 31, 1999 and 2000, respectively.
(3) Based on index prices from the Mont Belvieu and Conway market hubs that are
weighted by our component mix and location mix for the periods indicated.
(4) Based on the NYMEX Henry Hub prices for the periods indicated.
25
<PAGE> 28
The following table presents certain summary historical financial data of
the Predecessor Company, the midstream natural gas business of Phillips'
transfer to our company in connection with the Combination and Union Pacific
Fuels acquired by the Predecessor Company on March 31, 1999.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------
1995 1996 1997 1998 1999
--------- ---------- --------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
PREDECESSOR COMPANY
Gross Margin................................. $ 203,655 $ 320,883 $ 333,743 $ 246,191 $ 493,013
Operating, maintenance and general and
administrative............................. 86,034 137,709 140,331 158,502 255,077
Other income................................. 10,689 5,347 10,020 45,604 20,125
--------- ---------- --------- --------- ---------
EBITDA(1).................................... $ 128,310 $ 188,521 $ 203,432 $ 133,293 $ 258,061
========= ========== ========= ========= =========
PHILLIPS GAS COMPANY
Gross Margin................................. $ 340,751 $ 486,534 $ 444,727 $ 355,479 $ 440,547
Operating, maintenance and general and
administrative............................. 254,973 186,499 205,375 199,862 192,424
Other income................................. 1,443 4,527 2,858 10,665 1,955
--------- ---------- --------- --------- ---------
EBITDA(1).................................... $ 87,221 $ 304,562 $ 242,210 $ 166,282 $ 250,078
========= ========== ========= ========= =========
UNION PACIFIC FUELS
Gross Margin................................. $ 140,187 $ 214,797 $ 192,137 $ 173,494 $ 45,044
Operating, maintenance and general and
administrative............................. 54,655 65,538 77,621 102,626 28,943
Other income................................. 15,507 24,207 19,535 17,785 4,821
--------- ---------- --------- --------- ---------
EBITDA(1).................................... $ 101,039 $ 173,466 $ 134,051 $ 88,653 $ 20,922
========= ========== ========= ========= =========
</TABLE>
- ---------------
(1) EBITDA consists of income from continuing operations before interest
expense, income tax expense, and depreciation and amortization expense, less
interest income. EBITDA is not a measurement presented in accordance with
generally accepted accounting principles. You should not consider it in
isolation from or as a substitute for net income or cash flow measures
prepared in accordance with generally accepted accounting principles or as a
measure of our profitability or liquidity. EBITDA is included as a
supplemental disclosure because it may provide useful information regarding
an ability to service debt and to fund capital expenditures.
26
<PAGE> 29
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The following discussion details the material factors that affected our
historical and pro forma financial condition and results of operations in 1997,
1998 and 1999 and the three months ended March 31, 1999 and 2000. This
discussion should be read in conjunction with "Selected Historical and Pro Forma
Combined Financial and Operating Data," "Combined Financial and Other Data" and
the historical and pro forma financial statements, and, in each case, the notes
related thereto, included elsewhere in this prospectus.
Unless the context otherwise requires, the discussion of our business
contained in this section relates to the Predecessor Company on an historical
basis without giving effect to the Combination, the transfer to our company of
additional midstream natural gas assets acquired by Duke Energy or Phillips
prior to consummation of the Combination or the transfer to our Company of the
general partner of TEPPCO from Duke Energy.
OVERVIEW
We operate in the two principal business segments of the midstream natural
gas industry:
- natural gas gathering, processing, transportation and storage, from which
we generate revenues primarily by providing services such as compression,
treating and gathering, processing, local fractionation, transportation
of residue gas, storage and marketing. In 1999, approximately 72% of the
Predecessor Company's operating revenues and approximately 93% of the
Predecessor Company's gross margin were derived from this segment.
- NGLs fractionation, transportation, marketing and trading, from which we
generate revenues from transportation fees, market center fractionation
and the marketing and trading of NGLs. In 1999, approximately 28% of the
Predecessor Company's operating revenues and approximately 7% of the
Predecessor Company's gross margin were from this segment.
Our certificate of incorporation limits the scope of our business to the
midstream natural gas industry in the United States and Canada, the marketing of
NGLs in Mexico and the transportation, marketing and storage of other petroleum
products, unless otherwise approved by our Board of Directors and Duke Energy
(so long as it owns a majority of our outstanding common stock). This limitation
in scope is not currently expected to materially impact the results of our
operations.
EFFECTS OF COMMODITY PRICES
In 1999, approximately 59% of the Predecessor Company's gross margin was
generated by arrangements that are commodity price sensitive and 41% of the
Predecessor Company's gross margin was generated by fee-based arrangements.
Because the gross margin of Phillips' midstream gas business is more heavily
weighted towards arrangements that are commodity price sensitive, as a result of
the Combination the portion of our gross margin generated by fee-based
arrangements has decreased. For example, in January, 2000, after giving effect
to the Combination, approximately 28% of our gross margin was generated by
fee-based arrangements.
The midstream natural gas industry has been cyclical, with the operating
results of companies in the industry significantly affected by the prevailing
price of NGLs, which in turn generally is correlated to the price of crude oil.
Although the prevailing price of natural gas has less short-term significance to
our operating results than the price of NGLs, in the long term the growth of our
business depends on natural gas prices being at levels sufficient to provide
incentives and capital for producers to increase natural gas exploration and
production. In the past, the prices of NGLs and natural gas have been extremely
volatile.
27
<PAGE> 30
The following table sets forth financial data for the Predecessor Company
and the weighted average price of NGLs for each of the five years ended December
31, 1999 and demonstrates the relationship of our EBITDA to NGL prices. The
table below should not be viewed as indicating that the level of NGL prices is
the only factor affecting our results of operations. In addition to NGL prices,
our results of operations reflected in the table below were primarily affected
by:
- fluctuations in raw natural gas volumes processed, including increases
resulting from our acquisitions and additions;
- the Predecessor Company's historical risk management activities; and
- gain/(loss) on the sale of assets.
[GRAPH]
Note: The weighted average NGL prices set forth in the table above are
based on index prices from the Mont Belvieu and Conway market hubs
that are weighted by our component and location mix for the years
indicated.
The gas gathering and processing price environment deteriorated between
1996 and 1997 as prices for NGLs decreased and prices for natural gas increased
from 1996 levels. Increases in worldwide crude oil supply and production in 1998
drove a steep decline in crude oil prices. NGL prices also declined sharply in
1998 as a result of the correlation between crude oil and NGL pricing. Natural
gas prices also declined during 1998 principally due to mild weather.
The lower NGL and natural gas price environment experienced in 1998
prevailed during the first quarter of 1999. However, during the last three
quarters of 1999, NGL prices increased sharply as major crude oil exporting
countries agreed to maintain crude oil production at predetermined levels and
world demand for crude oil and NGLs increased. The lower crude oil and natural
gas prices in 1998 and early 1999 caused a significant reduction in the
exploration activities of U.S. producers, which in turn had a significant
negative effect on natural gas volumes gathered and processed in 1999.
During the first quarter of 2000, the weighted average NGL price (based on
index prices from the Mont Belvieu and Conway market hubs that are weighted by
our component and location mix) was approximately $.50 per gallon. In the
near-term, we expect NGL prices to follow changes in crude oil prices generally,
which we believe will in large part be determined by the level of production
from major crude oil exporting countries and the demand generated by growth in
the world economy. In contrast, we believe that future natural gas prices will
be influenced by supply deliverability, the severity of winter weather and the
level of U.S. economic growth. We believe that weather will be the strongest
determinant of near-term natural gas prices. The price increases in crude oil,
NGLs and natural gas have spurred increased natural gas drilling activity. For
example, the number of actively drilling rigs in North America has increased by
approximately 65% from approximately
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<PAGE> 31
760 in February 1999 to more than 1,270 in February 2000. This drilling activity
increase is expected to have a positive effect on natural gas volumes gathered
and processed in the near term.
EFFECTS OF OUR RAW NATURAL GAS SUPPLY ARRANGEMENTS
Our results are affected by the types of arrangements we use to purchase
raw natural gas. We obtain access to raw natural gas and provide our midstream
natural gas services principally under three types of contracts:
- Percentage-of-Proceeds Contracts -- Under these contracts (which also
include percentage-of-index contracts), we receive as our fee a
negotiated percentage of the residue natural gas and NGLs value derived
from our gathering and processing activities, with the producer retaining
the remainder of the value. These type of contracts permit us and the
producers to share proportionately in price changes. Under these
contracts, we share in both the increases and decreases in natural gas
prices and NGL prices. In December 1999, after giving effect to the
Combination approximately 57% of our gross margin was generated from
percentage-of-proceeds or percentage-of-index contracts.
- Fee-Based Contracts -- Under these contracts we receive a set fee for
gathering, processing and/or treating raw natural gas. Our revenue stream
from these contracts is correlated with our level of gathering and
processing activity and is not directly dependent on commodity prices. In
December 1999, after giving effect to the Combination, approximately 25%
of our gross margin was generated from fee-based contracts.
- Keep-Whole Contracts -- Under these contracts we gather raw natural gas
from the producer for processing. After we process the raw natural gas,
we are obligated to return to the producer residue gas with a Btu content
equivalent to the Btu content of the raw natural gas gathered. As a
result of our processing, NGLs are extracted from the raw natural gas
resulting in a shrinkage in the Btu content of the natural gas. We market
the NGLs and purchase natural gas at market prices in order to return to
the producer residue gas with a Btu content equivalent to the Btu content
of the raw natural gas gathered. Accordingly, under these contracts, we
are exposed to increases in the price of natural gas and decreases in the
price of NGLs. In December 1999, after giving effect to the Combination,
approximately 15% of our gross margin was generated from keep-whole
contracts.
Our current mix of percentage-of-proceeds and percentage-of-index contracts
(where we are exposed to decreases in natural gas prices) and keep-whole
contracts (where we are exposed to increases in natural gas prices)
significantly mitigates our exposure to increases in natural gas prices, while
retaining our exposure to changes in NGL prices.
We prefer to enter into percentage-of-proceeds type supply contracts
(including percentage-of-index contracts). We believe this type of contract
provides the best alignment with our producers and represents the best
risk/reward profile for the capital we employ. Notwithstanding this preference,
we also recognize from a competitive viewpoint that we will need to offer
keep-whole contracts to attract certain supply to our systems. We also employ a
fee-type contract, particularly where there is treating and/or transportation
involved. Our contract mix and, accordingly, our exposure to natural gas and NGL
prices may change as a result of changes in producer preferences, our expansion
in regions where some types of contracts are more common and other market
factors.
Based upon the combined company's portfolio of supply contracts in 1999,
and excluding the effect of our commodities risk management program, an increase
of $.01 per gallon in the price of NGLs and $.10 per million Btus in the average
price of natural gas throughout such period would have resulted in changes in
pre-tax net income of approximately $24 million and ($1) million, respectively.
See "-- Quantitative and Qualitative Disclosure About Market Risks."
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<PAGE> 32
OTHER FACTORS THAT HAVE SIGNIFICANTLY AFFECTED OUR RESULTS
Our results of operations also are correlated with increases and decreases
in the volume of raw natural gas that we put through our system, which we refer
to as throughput volume, and the percentage of capacity at which our processing
facilities operate, which we refer to as our asset utilization rate. Throughput
volumes and asset utilization rates generally are driven by production on a
regional basis and more broadly by demand for residue natural gas and NGLs.
Risk management, which has been directed by Duke Energy's centralized
program for controlling, managing and coordinating its management of risks, also
has affected our results of operations, particularly in 1999 and the first
quarter of 2000. Our 1999 and first quarter 2000 results of operations include
hedging losses of $34.0 million and $46.7 million, respectively. After the
Combination, we will direct our risk management activities independently of Duke
Energy, with goals, policies and procedures that are different from those of
Duke Energy. See " -- Quantitative and Qualitative Disclosure about Market
Risk."
In addition to market factors and production, our results have been
affected by our acquisition strategy, including the timing of acquisitions and
our ability to integrate acquired operations and achieve operating synergies.
THE COMBINATION
On March 31, 2000, we combined the gas gathering, processing, marketing and
NGLs businesses of Duke Energy and Phillips. In connection with the Combination,
Phillips transferred all of its interest in its subsidiaries that conducted its
midstream natural gas business to Field Services LLC, our subsidiary formed in
December of 1999 to hold all of Duke Energy's gas gathering and processing
business. In connection with the Combination, Duke Energy and Phillips also
transferred to Field Services LLC additional midstream natural gas assets
acquired by Duke Energy or Phillips prior to consummation of the Combination,
including the Mid-Continent gathering and processing assets of Conoco and
Mitchell Energy. In addition, concurrently with the Combination, we obtained by
transfer from Duke Energy the general partner of TEPPCO. In exchange for the
asset contribution, Phillips received 30.3% of the member interests in Field
Services LLC, with Duke Energy indirectly, through us, holding the remaining
69.7% of the outstanding member interests. In connection with the closing of the
Combination, Field Services LLC borrowed approximately $2.8 billion in the
commercial paper market and made one-time cash distributions (including
reimbursements for acquisitions) of approximately $1.5 billion to Duke Energy
and approximately $1.2 billion to Phillips. See "-- Liquidity and Capital
Resources." The Combination is accounted for as a purchase of the Phillips
midstream natural gas business.
Concurrently with the consummation of the offerings of common stock, the
subsidiary of Phillips that indirectly holds Phillips' interest in Field
Services LLC will be merged into our company, and we will issue shares of our
common stock to Phillips. After the merger and completion of the offerings of
common stock, Duke Energy and Phillips together will own 81.24% of our
outstanding common stock. The exact allocation between Duke Energy and Phillips
of shares of our common stock will be determined by the average of the closing
prices of our common stock on its first five trading days on the New York Stock
Exchange Composite Tape. Assuming that the five-day average price is the same as
the assumed initial public offering price, following the offerings, Duke Energy
will own approximately 58.65% and Phillips will own approximately 22.59% of our
outstanding common stock. Although the exact allocation may vary, Duke Energy
will, in all events, continue to control our company through its share ownership
and representation on our Board of Directors.
The Combination was accounted for as a purchase business combination in
accordance with Accounting Principles Board Opinion (APB) "No. 16, Accounting
for Business Combinations". The Predecessor Company was the acquiror of
Phillips' midstream natural gas business in the Combination. The purchase price
allocation associated with the Phillips assets is preliminary. Currently there
are no pre-acquisition contingent liabilities reflected in the purchase price
allocation. The final purchase price allocation is subject to adjustment pending
gathering of additional information regarding certain pre-acquisition contingent
liabilities and
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<PAGE> 33
obtaining appraisals. The effect of any pre-acquisition contingencies is not
expected to have a material effect on our operating results, liquidity or
financial condition.
COMBINED RESULTS OF OPERATIONS
The following is a discussion of the combined operating revenues, and cost
of sales of our company giving effect to the Combination, the transfer to our
company of the midstream natural gas businesses acquired by Duke Energy and
Phillips prior to the consummation of the Combination and the acquisition of
Union Pacific Fuels as if each transaction occurred on January 1, 1995.
This discussion should be read in conjunction with the historical and pro
forma financial statements and related notes and other financial information
appearing elsewhere in this prospectus. The data on which this discussion is
based should not be considered indicative of:
- the actual results that would have been realized had the Combination and
the acquisition of Union Pacific Fuels actually occurred on January 1,
1995; or
- the results of our future operations.
THREE MONTHS ENDED MARCH 31, 2000 COMPARED WITH THREE MONTHS ENDED MARCH
31, 1999
Operating Revenues. Operating revenues increased $1,091.8 million, or 114%,
from $959.0 million to $2,050.8 million. Of this increase, approximately $1,000
million was due to increases in commodity prices, as weighted average NGL
prices, based on our component product mix, were approximately $.28 per gallon
higher and natural gas prices were approximately $.77 per million Btus higher.
Acquisitions and plant expansions contributed approximately $90 million to the
revenue increase. NGL production during the first quarter increased 33,000
barrels per day, or 9%, from 382,000 barrels per day to 415,000 barrels per day,
and natural gas transported and/or processed increased 0.9 trillion Btus per
day, or 13%, from 7.0 trillion Btus per day to 7.9 trillion Btus per day.
Included in first quarter 2000 operating revenues is a $46.7 million loss on
hedging activity compared to a $4.0 million gain in first quarter 1999.
Cost of Sales. Costs of natural gas and petroleum products increased $941.3
million, or 124%, from $761.8 million to $1,703.1 million. This increase was
primarily due to the interaction of our gas and NGL purchase contracts with
higher commodity prices. Higher natural gas and NGLs throughput associated with
our acquisitions and plant expansions also increased product purchase costs.
Gross Margin. Gross margin increased $150.4 million, or 76%, from $197.3
million to $347.7 million. This increase was principally the result of higher
average NGL prices and increased throughput volumes offset slightly by higher
natural gas prices. Also contributing to this increase was an approximately $16
million margin increase associated with NGL marketing and trading. These
increases were partially offset by a $46.7 million loss from our hedging
activity.
1999 COMPARED WITH 1998
Operating Revenues. Operating revenues increased $1,271.9 million, or 30%,
from $4,302.7 million to $5,574.6 million. Of this increase, approximately
$1,100 million was due to increases in commodity prices, as weighted average NGL
prices, based on our component product mix, were approximately $.08 per gallon
higher and natural gas prices were approximately $.16 per million Btus higher.
Our acquisitions and plant expansions also contributed to this increase. NGLs
production during 1999 increased 27,000 barrels per day, or 7%, from 373,000
barrels per day to 400,000 barrels per day, and natural gas transported and/or
processed remained essentially unchanged at 7.3 trillion Btus per day. The
recovery of commodity prices during the last three quarters of 1999 encouraged
exploration and production activity, which positively affected existing
throughput volumes. Included in 1999 operating revenues is approximately $34.0
million of loss on hedging activity. There were no significant hedging
activities in 1998. See "-- Quantitative and Qualitative Disclosure About Market
Risks."
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<PAGE> 34
Cost of Sales. Costs of natural gas and petroleum products increased
$1,027.3 million, or 29%, from $3,527.5 million to $4,554.8 million. This
increase primarily was due to the interaction of our gas and NGL purchase
contracts with higher commodity prices.
Gross Margin. Gross margin increased $244.6 million, or 32%, from $775.2
million to $1,019.8 million. This increase was largely the result of higher
average NGL prices minimally offset by higher natural gas prices. The increase
was partially offset by a $34.0 million loss from our hedging activity.
1998 COMPARED WITH 1997
Operating Revenues. Operating revenues decreased $466.4 million, or 10%,
from $4,769.1 million to $4,302.7 million. Lower commodity prices resulted in an
approximately $800 million reduction of operating revenues, as weighted average
NGL prices, based on our component product mix, were approximately $.09 per
gallon lower and natural gas prices were unchanged. Partially offsetting this
decrease was approximately $22 million additional revenues attributable to our
fourth quarter 1997 acquisition of Highlands Gas Partners and approximately $300
million additional revenues attributable to our increased NGL trading and
marketing activities. Natural gas transported and/or processed decreased .2
trillion Btus per day, or 3%, from 7.5 trillion Btus per day to 7.3 trillion
Btus per day. This decrease was primarily the result of reduced exploration and
production activity caused by depressed commodity prices. This decrease was
offset by an increase in NGLs production of 15,000 barrels per day, or 4%, from
358,000 barrels per day to 373,000 barrels per day. NGLs production growth
primarily was the result of the Highlands Gas Partners acquisition and the
restart of a processing facility in the fourth quarter of 1997.
Cost of Sales. Cost of natural gas and petroleum products decreased $271.0
million, or 7%, from $3,798.5 million to $3,527.5 million. This decrease
primarily was due to declining NGL prices. Increased NGL trading and marketing
activity partially offset this decrease.
Gross Margin. Gross margin decreased $195.4 million, or 20%, from $970.6
million to $775.2 million. This decrease largely was the result of substantially
lower commodity prices.
QUARTERLY COMBINED RESULTS
The following table sets forth unaudited combined financial and operating
data for our company on a quarterly basis for each of 1998, 1999 and the three
months ended March 31, 2000.
<TABLE>
<CAPTION>
COMBINED
---------------------------------------------------------------------------------------
1998 1999 2000
------------------------------------- ------------------------------------- -------
FIRST SECOND THIRD FOURTH FIRST SECOND THIRD FOURTH FIRST
QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER QUARTER
------- ------- ------- ------- ------- ------- ------- ------- -------
(IN MILLIONS, EXCEPT PER UNIT DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Total operating
revenues................. $1,113 $1,143 $1,095 $952 $959 $1,158 $1,597 $1,861 $2,051
Costs of natural gas and
petroleum products..... 902 951 900 775 762 923 1,313 1,557 1,703
Gross margin............. 211 192 195 177 197 235 284 304 348
Average NGL price (per
gallon)(1)............. .28 .26 .20 .22 .22 .30 .39 .41 .50
</TABLE>
- ---------------
(1) Based on index prices from the Mont Belvieu and Conway market hubs that are
weighed by our component and location mix for the periods indicated.
HISTORICAL RESULTS OF OPERATIONS
The following is a discussion of the historical results of operations of
the Predecessor Company.
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THREE MONTHS ENDED MARCH 31, 2000 COMPARED WITH THREE MONTHS ENDED MARCH 31,
1999
Operating Revenues. Operating revenues increased $1,116.2 million, or 333%,
from $335.0 million to $1,451.2 million. Operating revenues from the sale of
natural gas and petroleum products accounted for $1,415.5 million of the total
and $1,110.3 million of the increase. Of this increase, approximately $425
million is related to the March 31, 1999 acquisition of Union Pacific Fuels.
Increased NGL trading and marketing activity also contributed to the increase.
NGL production during the first quarter increased 123,600 barrels per day, or
115%, from 107,600 barrels per day to 231,200 barrels per day, and natural gas
transported and/or processed increased 2.6 trillion Btus per day, or 76%, from
3.4 trillion Btus per day to 6.0 trillion Btus per day. Of the 123,600 barrels
per day increase, the Union Pacific Fuels acquisition contributed 100,600
barrels per day, with the combination of our Wilcox plant expansion, completion
of our Mobile Bay Plant and the acquisition of Koch's South Texas assets
accounting for the remainder of the increase. Of the 2.6 trillion Btus per day
increase, the Union Pacific Fuels acquisition contributed 2.0 trillion Btus per
day, with the combination of other acquisitions, plant expansions and
completions accounting for the balance of the increase.
Commodity prices also contributed to higher revenues. Weighted average NGL
prices, based on our component product mix, were approximately $.27 per gallon
higher and natural gas prices were approximately $.77 per million Btus higher
for the first quarter. These price increases yielded average prices of $.50 per
gallon and $2.52 per million Btus, respectively, as compared with $.23 per
gallon and $1.75 per million Btus for the first quarter of 1999. Revenues
associated with gathering, transportation, storage, processing fees and other
increased $5.9 million, or 20%, from $29.8 million to $35.7 million, mainly as a
result of the Union Pacific Fuels acquisition. A $46.7 million hedging loss in
the first quarter of 2000 offset total operating revenue increases. See
"-- Quantitative and Qualitative Disclosure About Market Risks."
Costs and Expenses. Costs of natural gas and petroleum products increased
$1,006 million, or 369%, from $272.5 million to $1,278.5 million. This increase
was due to the Union Pacific Fuels acquisition (approximately $340 million), the
interaction of our natural gas and NGL purchase contracts with higher commodity
prices and increased trading and marketing activity.
Operating and maintenance expenses increased $19.9 million, or 68%, from
$29.1 million to $49.0 million. Of this increase, approximately $13 million was
due to the Union Pacific Fuels acquisition. General and administrative expenses
increased $13.6 million, or 84%, from $16.1 million to $29.7 million. Of this
increase, $5.1 million was due to increased allocated corporate overhead from
our parent, Duke Energy. The remainder was associated with increased activity
resulting from the Union Pacific Fuels acquisition and increased fiscal year
2000 incentive compensation accruals.
Depreciation and amortization increased $17.9 million, or 90%, from $20
million to $37.9 million. Of this increase, $15.2 million was due to the Union
Pacific Fuels acquisition. The remainder was due to ongoing capital expenditures
for well connections, facility maintenance/enhancements and acquisitions.
Sale of Assets. Net (gain) loss on sales of assets decreased $4.1 million
from zero activity to a loss of $4.1 million. The loss was primarily the result
of the sale of the Westana joint venture investment.
Equity Earnings. Equity earnings of unconsolidated affiliates increased
$3.5 million, or 106%, from $3.3 million to $6.8 million. This increase was
largely due to interests in joint ventures and partnerships acquired from Union
Pacific Fuels.
Interest. Interest expense increased $2.1 million, or 17%, from $12.4
million to $14.5 million. This increase is primarily related to interest on
notes due to Duke Energy.
Net Income. Net income increased $35.4 million from a loss of $8.5 million
to $26.9 million. This increase was largely the result of the acquisition of
Union Pacific Fuels and higher average NGL prices. The benefit of higher NGL
prices was partially offset by higher natural gas prices. A $46.7 million
pre-tax loss from hedging activities experienced during the first quarter of
2000 partially offset the increase.
EBITDA. EBITDA for the natural gas gathering, processing, transportation
and storage segment increased $65.7 million from $36.0 million to $101.7
million. Of this increase, approximately $56 million was
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<PAGE> 36
due to the acquisition of Union Pacific Fuels and approximately $60 million was
due to a $.27 per gallon increase in average NGL prices. Additional increases
were attributable to the combination of our Wilcox plant expansion, completion
of our Mobile Bay plant and the acquisition of Koch's South Texas assets. These
benefits were offset by a $50.7 million decrease from hedging activities ($46.7
million loss in 2000 compared to a $4.0 million gain in 1999) and approximately
$6 million due to a $.77 per million Btu increase in natural gas prices.
EBITDA for the NGLs fractionation, transportation, marketing and trading
segment increased $23.8 million from $.7 million to $24.5 million due primarily
to NGL trading and marketing activity and the acquisition of Union Pacific
Fuels.
1999 COMPARED WITH 1998
Operating Revenues. Operating revenues increased $1,874.0 million, or 118%,
from $1,584.3 million to $3,458.3 million. Operating revenues from the sale of
natural gas and petroleum products accounted for $3,310.3 million of the total
and $1,841.2 million of the increase. Of this increase, approximately $1.0
billion was attributable to the March 31, 1999 acquisition of Union Pacific
Fuels. Increased NGL trading and marketing activity associated with the Union
Pacific Fuels acquisition also contributed to the increase. NGL production
during 1999 increased 82,000 barrels per day, or 75%, from 110,000 barrels per
day to 192,000 barrels per day. Of the 82,000 barrels per day increase, the
Union Pacific Fuels acquisition contributed 71,000 barrels per day, with the
combination of our Wilcox plant expansion, completion of our Mobile Bay Plant
and the acquisition of Koch's South Texas assets accounting for the remainder of
the increase. Raw natural gas transported and/or processed increased 1.5
trillion Btus per day, or 42%, from 3.6 trillion Btus per day to 5.1 trillion
Btus per day. The Union Pacific Fuels acquisition accounted for 1.4 trillion
Btus per day of the natural gas increase.
Commodity prices also contributed to higher revenues. Weighted average NGL
prices, based on our component product mix, were approximately $.08 per gallon
higher and natural gas prices were approximately $.16 per million Btus higher
for 1999, yielding prices of $.34 and $2.27, respectively, as compared with $.26
and $2.11 in 1998. Revenues associated with gathering, transportation, storage,
processing fees and other increased $32.8 million, or 28%, from $115.2 million
to $148.0 million principally as a result of the Union Pacific Fuels
acquisition. Total operating revenue increases were offset by a $34.0 million
hedging loss in 1999. See "-- Quantitative and Qualitative Disclosure About
Market Risks."
Costs and Expenses. Costs of natural gas and petroleum products increased
$1,627.2 million, or 122%, from $1,338.1 million to $2,965.3 million. This
increase was due primarily to the Union Pacific Fuels acquisition ($800
million), increased NGL trading and marketing activity and the interaction of
our natural gas and NGL purchase contracts with higher commodity prices.
Operating and maintenance expenses increased $67.8 million, or 60%, from
$113.6 million to $181.4 million. Of this increase, approximately $65.0 million
was due to the Union Pacific Fuels acquisition. General and administrative
expenses increased $28.7 million, or 64%, from $45.0 million to $73.7 million.
This increase was due to a $7.0 million increase in allocated corporate overhead
from our parent, Duke Energy, and increases resulting from the Union Pacific
Fuels acquisition.
Depreciation and amortization increased $55.2 million, or 73%, from $75.6
million to $130.8 million. Of this increase, $45.2 million was due to the Union
Pacific Fuels acquisition and the remainder was due to ongoing capital
expenditures for well connections, facility maintenance/enhancements and
acquisitions.
Sale of Assets. Net (gain) loss on sales of assets decreased $36.2 million,
from a $33.8 million gain to a $2.4 million loss from 1998 to 1999. This
decrease was primarily the result of a $38.0 million gain recognized in 1998 on
the sale of two fractionators in Weld County, Colorado.
Equity Earnings. Equity earnings of unconsolidated affiliates increased
$10.7 million, or 91%, from $11.8 million to $22.5 million. This increase was
largely due to interests in joint ventures and partnerships acquired from Union
Pacific Fuels in 1999.
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<PAGE> 37
Interest. Interest expense of $52.9 million for 1999 remained almost
unchanged from 1998 and was principally related to interest on notes due to Duke
Energy.
Net Income. Net income increased $41.3 million from $2.0 million to $43.3
million. This increase was largely the result of the acquisition of Union
Pacific Fuels and higher average NGL prices experienced during 1999. The benefit
of higher NGL prices was partially offset by higher natural gas prices. The
increase in net income was largely offset by a pre-tax gain of approximately
$38.0 million recognized on the sale of our Weld County fractionators in 1998
and a $34.0 million loss on hedging activity in 1999.
EBITDA. EBITDA for the natural gas gathering, processing, transportation
and storage segment increased $122.9 million from $175.8 million to $298.7
million. Of the increase, approximately $110 million was due to the acquisition
of Union Pacific Fuels and $80.0 million was due to $.08 per gallon higher NGL
prices. Additional increases were recognized with the combination of our Wilcox
plant expansion, completion of our Mobile Bay Plant and the acquisition of
Koch's South Texas assets. These increases were offset by a $38.0 million gain
recognized in 1998 on the sale of the Weld County fractionators, hedging losses
in 1999 of $34.0 million, an approximately $5 million decrease due to $.16 per
million BTU increase in gas prices and a $7.0 million increase in allocated
corporate overhead from our parent, Duke Energy.
EBITDA for the NGLs fractionation, transportation, marketing and trading
segment increased $30.6 million from $2.4 million to $33.0 million due primarily
to the acquisition of Union Pacific Fuels.
1998 COMPARED WITH 1997
Operating Revenues. Operating revenues decreased $217.5 million, or 12%,
from $1,801.8 million to $1,584.3 million. Operating revenues from the sale of
natural gas and petroleum products decreased $230.9 million, or 14%, from
$1,700.0 million to $1,469.1 million. This decrease was largely due to commodity
prices, as weighted average NGLs prices, based on our component product mix,
were approximately $.09 per gallon lower and natural gas prices were
approximately $.48 per MMBtu lower for 1998, yielding prices of $.26 and $2.11,
respectively, as compared with $.35 and $2.59 in 1997. This NGL price decline
was partially offset by an increase in NGL production during 1998 of 2,000
barrels per day, or 2%, from 108,000 barrels per day to 110,000 barrels per day,
and by an increase in natural gas gathered, transported and/or processed of .2
trillion Btus per day, or 6%, from 3.4 trillion Btus per day to 3.6 trillion
Btus per day, due to increased production on existing facilities. Revenues
associated with gathering, transportation, storage, processing fees and other
increased $13.4 million, or 13%, from $101.8 million to $115.2 million. This
increase was principally the result of increased volumes.
Costs and Expenses. Costs of natural gas and petroleum products decreased
$130.0 million, or 9%, from $1,468.1 million to $1,338.1 million. This decrease
was primarily due to declining NGL prices. The NGL price decline was partially
offset by increases in system throughput volumes.
Operating and maintenance expenses increased $9.3 million, or 9%, from
$104.3 million to $113.6 million. This increase was primarily due to higher
property tax accruals associated with property additions and other inflationary
factors. General and administrative expenses increased $8.9 million, or 25%,
from $36.0 million to $44.9 million. This increase was due primarily to an
increase in the incentive bonus accrual and internal growth.
Depreciation and amortization increased $7.9 million, or 12%, from $67.7
million to $75.6 million. This increase was primarily due to ongoing capital
expenditures for well connections, facility maintenance/enhancements and
acquisitions.
Sales of Assets. Net (gain) loss on sales of assets increased $33.6
million, from a $.2 million gain to a $33.8 million gain from 1997 to 1998. This
increase was primarily due to a $38.0 million gain recognized in March 1998 on
the sale of the Weld County fractionators.
Equity Earnings. Equity earnings of unconsolidated affiliates increased
$2.0 million, or 20%, from $9.8 million to $11.8 million. This increase was
largely due to increased earnings from Dauphin Island Gathering and Main Pass
Oil in the offshore region.
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Interest. Interest expense increased $1.3 million, or 3%, from $51.1
million to $52.4 million. Interest expense reflects interest on notes due to
affiliated companies.
Net Income. Net income decreased $49.2 million, or 96%, from $51.2 million
to $2.0 million. This decrease was largely the result of substantially lower
commodity prices. A pre-tax gain of approximately $38.0 million recognized on
the sale of our Weld County fractionators in March 1998 partially offset the
impact of the sharp NGL price decline.
EBITDA. EBITDA for the natural gas gathering, processing, transportation
and storage segment decreased $64.0 million from $239.8 million to $175.8
million. Of the decrease, approximately $80 million was due to $.09 per gallon
lower NGL prices and approximately $18 million was due to increased operating
and general and administrative expenses resulting from higher property tax
accruals associated with property additions, an increase in the incentive bonus
accrual and internal growth. These decreases were partially offset by a $38.0
million gain recognized in March 1998 on the sale of the Weld County
fractionators.
EBITDA for the NGLs fractionation, transportation, marketing and trading
segment increased $2.8 million from $(.4) million to $2.4 million due to
increased trading and marketing activity.
ENVIRONMENTAL CONSIDERATIONS
Environmental expenditures are expensed or capitalized as appropriate,
depending upon the future economic benefit. Historically these expenditures have
been between $5 million and $15 million annually except for those environmental
liabilities identified with the acquisition of Union Pacific Fuels of
approximately $63 million. The Union Pacific Fuels environmental liabilities
associated with soil and groundwater contamination were transferred to a third
party at a cost of approximately $48 million.
The outlook for environmental spending, both capitalized and expensed, is
not expected to change materially from historical levels of $5 to $15 million
annually.
LIQUIDITY AND CAPITAL RESOURCES
LIQUIDITY PRIOR TO THE COMBINATION
The Predecessor Company's capital investments and acquisitions have been
financed by cash flow from operations and non-interest bearing advances from
Duke Energy or its subsidiaries under various arrangements. Under Duke Energy's
centralized cash management system, Duke Energy deposited sufficient funds in
our bank accounts for us to meet our daily obligations and withdrew excess funds
from those accounts. Advances were offset by cash provided by operations to
yield net advances from Duke Energy which were included in the historical
consolidated balance sheets and statements of cash flows of the Predecessor
Company. In 1999, the Predecessor Company had notes to and advances from Duke
Energy which were terminated in connection with the Combination.
FINANCING TRANSACTIONS IN CONNECTION WITH THE COMBINATION
In connection with the Combination, all advances from Duke Energy were
capitalized to equity and all advances from Phillips were capitalized.
On March 31, 2000, Field Services LLC entered into a $2.8 billion credit
facility with several financial institutions. The credit facility will be used
as the liquidity backstop to support a commercial paper program. On April 3,
2000 Field Services LLC borrowed approximately $2.8 billion in the commercial
paper market to fund the one-time cash distributions (including reimbursements
for acquisitions) of approximately $1.5 billion to Duke Energy and approximately
$1.2 billion to Phillips and to cover working capital requirements. At April 30,
2000 our outstanding commercial paper had maturities ranging from one day to 70
days and had annual interest rates between 6.20% and 6.45%. At no time will the
amount of our outstanding commercial paper exceed the available amount under the
credit facility. The credit facility matures on March 30, 2001 and borrowings
bear interest at a rate equal to, at our option, either (1) LIBOR plus .50% per
year for the first 90 days following the closing of the credit facility and
LIBOR plus .625% per year thereafter or (2) the higher
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of (a) the Bank of America prime rate and (b) the Federal Funds rate plus .50%
per year. Upon completion of the offerings, Duke Energy Field Services
Corporation will assume Field Services LLC's obligations under the facility.
Effective April 4, 2000, Field Services LLC entered into a $100 million
revolving credit agreement with Duke Capital Corporation, an indirect,
wholly-owned subsidiary of Duke Energy. The revolving credit agreement will be
used for short-term financing requirements. At April 30, 2000, there were no
amounts outstanding under this facility. The agreement terminates on May 31,
2000, and bears interest at the Bank of America prime rate.
Proceeds of the offerings will be used to repay a portion of our
outstanding commercial paper, and the credit facility will be permanently
reduced by the amount of such proceeds. The amount available under the credit
facility and corresponding commercial paper program will be further reduced by
the amount, if any, of long-term debt we may issue, but in no event will the
credit facility be reduced to below $1.0 billion. Upon completion of the
offerings and application of the net proceeds, we expect to have outstanding
$2.1 billion of indebtedness. The debt levels reflected in the pro forma
combined financial statements are based upon the indebtedness we anticipate
having outstanding upon consummation of the financing transactions described
above and the offerings. In the future, our debt levels will vary depending on
our liquidity needs, capital expenditures and cash flow.
Based on current and anticipated levels of operations, we believe that our
cash on hand and cash flow from operations, combined with borrowings available
under the commercial paper program and credit facilities, will be sufficient to
enable us to meet our current and anticipated cash operating requirements and
working capital needs for the next year. Actual capital requirements, however,
may change, particularly as a result of any acquisitions that we may make. Our
ability to meet current and anticipated operating requirements will depend on
our future performance.
CAPITAL EXPENDITURES
Our capital expenditures consist of expenditures for acquisitions and
construction of additional gathering systems, processing plants, fractionators
and other facilities and infrastructure in addition to well connections and
repairs and maintenance of our existing facilities. Our capital expenditure
budget for well connections and repair and maintenance of our existing
facilities in 2000 is approximately $175 million, of which approximately $25
million was spent in the three months ended March 31, 2000.
On March 31, 2000, Field Services LLC acquired gathering and processing
assets located in central Oklahoma from Conoco, Inc. and Mitchell Energy and
Development Corp. Field Services LLC paid cash of $99.5 million, and exchanged
its interest in certain gathering and marketing joint ventures located in
southeast Texas having a total net book value of approximately $42 million as
consideration for these assets.
Our level of capital expenditures for acquisitions and construction depends
on many factors, including industry conditions, the availability of attractive
acquisition candidates and construction projects, the level of commodity prices
and competition. We expect to finance our capital expenditures with our cash on
hand, cash flow from operations and borrowings available under our commercial
paper program, our credit facility or other available sources of financing.
CASH FLOWS
Net cash provided by operating activities for the Predecessor Company for
the three months ended March 31, 2000 improved to $186.2 million from $24.4
million for the same period in 1999, primarily due to higher commodity prices
and acquisitions. Net cash used in investing activities by the Predecessor
Company was $111.4 million for the three months ended March 31, 2000 compared to
$1,458.2 million for the same period in 1999. Acquisitions of the
Conoco/Mitchell assets in 2000 and the Union Pacific Fuels assets in 1999 were
the primary uses of the invested cash. The net cash used in investing activities
was financed through operating activities, advances from Duke Energy and
proceeds from the issuance of short-term debt.
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Net cash provided by operating activities for the Predecessor Company in
1999 improved to $173.1 million from $40.4 million in 1998, primarily due to
higher commodity prices and acquisitions. Net cash used in investing activities
by the Predecessor Company was $1,571.4 million for 1999 compared to $203.6
million for 1998, of which $1,456.5 million was used for acquisitions and the
remainder was used principally for capital expenditures. The net cash used in
investing activities was financed through operating activities, advances from
Duke Energy and proceeds from the issuance of short-term debt.
Net cash provided by operating activities for the Predecessor Company was
$40.4 million for 1998 compared to $173.4 million for 1997. This decrease was
primarily due to the reduction of trade accounts payable to producers for the
purchase of raw natural gas at purchase prices lower than those in 1997. Net
cash used in investing activities by the Predecessor Company in 1998 increased
to $203.6 million from $138.0 million in 1997. In 1998, $185.5 million was used
for capital expenditures and $84.9 million was used for investments in
affiliates. The net cash used in investing activities was provided by operating
activities and advances from Duke Energy.
QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISKS
COMMODITY PRICE RISK
We are subject to significant risks due to fluctuations in commodity
prices, primarily with respect to the prices of NGLs that we own as a result of
our processing activities. Based upon the Predecessor Company's portfolio of
supply contracts in 1999, without giving effect to hedging activities that would
reduce the impact of commodity price decreases, a decrease of $.01 per gallon in
the price of NGLs and $.10 per million Btus in the average price of natural gas
throughout 1999 would have resulted in changes in pre-tax net income of
approximately $(15) million and $5 million, respectively. Based upon the
combined company's portfolio of supply contracts in 1999, and excluding the
effects of our commodities risk management program, similar commodities price
changes in 1999 would have resulted in changes in pre-tax net income of
approximately $(24) million and $1 million, respectively.
Commodity derivatives such as futures and swaps are available to reduce
such exposure to fluctuations in commodity prices. Gains and losses related to
commodity derivatives are recognized in income when the underlying hedged
physical transaction closes, and such gains and losses are included in sales of
natural gas and petroleum products in our statement of income.
Natural gas and crude oil futures, which are used to hedge NGLs prices,
involve the buying and selling of natural gas and crude oil for future delivery
at a fixed price. Over-the-counter swap agreements require us to receive or make
payments on the difference between a specified price and the actual price of
natural gas or crude oil.
Historically, the Predecessor Company's commodity price risk was managed by
Duke Energy's centralized program for controlling, managing and coordinating its
risk management activities. Under this program, the Predecessor Company used
futures and swaps to manage margins on offsetting fixed-price purchase or sale
commitments for physical quantities of natural gas and NGLs. Historically,
futures and swaps conducted through Duke Energy were handled through Duke Energy
Trading and Marketing, LLC, a partnership in which Duke Energy owns a 60%
interest. Under this arrangement, the Predecessor Company did not experience
margin requirements.
At December 31, 1998 and 1999 the Predecessor Company (through Duke Energy)
had outstanding futures and swaps for an absolute notional contract quantity of
10.92 and 7.8 Bcf of natural gas and an absolute notional contract quantity of
59,000 and 32,764,000 barrels of crude oil, respectively, both of which were
intended to offset the risk of price fluctuations under fixed-price commitments
for delivering and purchasing natural gas and NGLs, respectively. The gains,
losses and costs related to those financial instruments that qualify as a hedge
are not recognized until the underlying physical transaction occurs. At December
31, 1998 and 1999, the Predecessor Company had current unrecognized net gains
(losses) of $1.8 million and $(63.5) million, respectively, related to commodity
instruments. All unrecognized gains and losses at
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March 31, 2000, the date of the Combination, remain with Duke Energy and will
not have an impact on our company's future earnings.
Losses relating to hedging with commodity derivatives included in the
Predecessor Company's statement of income equaled $34.0 million for 1999. There
were no corresponding losses in 1997 or 1998. For the three months ended March
31, 1999 and 2000, the Predecessor Company recorded a hedging gain of $4.0
million and a hedging loss of $46.7 million, respectively.
After the Combination, we began directing our risk management activities
independently of Duke Energy.
We intend to use commodity-based derivative contracts to reduce the risk in
our overall earnings and cash flow with the primary goals of:
- maintaining minimum cash flow to fund debt service, dividends, and
maintenance type capital projects;
- avoiding disruption of our growth capital and value creation process; and
- retaining a high percentage of the potential upside relating to commodity
price increases.
We implemented a risk management policy that provides guidelines for
entering into contractual arrangements to manage our commodity price exposure.
Our risk management committee has ongoing responsibility for the content of this
policy and has principal oversight responsibility for compliance with the policy
framework by ensuring proper procedures and controls are in place.
In general, we will look to provide downside protection to our business
activities while retaining most of the upside potential by using floors and
other similar hedging structures. These structures will typically require the
payment of a premium to protect the downside while retaining exposure to the
upside. Historically, NGLs and related commodity products have shown a mean
reverting tendency to long term average prices, which implies that supply and
demand for products balance over cycles. Therefore, we may choose to forego
price upside in favor of a known, hedged cash flow position as prices rise
significantly above historical levels and depending upon existing market
drivers.
An active forward market for hedging of NGL products is not normally
available for hedging a significant amount of our NGL production beyond a one to
three month time horizon. With an anticipated hedging horizon of up to 12
months, crude oil derivatives, which historically have had a high correlation
with NGL prices, will typically be the mechanism used for longer-term price risk
management.
As of March 31, 2000, the existing commodity positions under the Duke
Energy centralized program were transferred to Duke Energy. In establishing its
initial independent commodity risk management position on April 1, 2000, the
Company acquired a portion of Duke Energy's existing commodity derivatives held
for non-trading purposes. The absolute notional contract quantity of the
positions acquired was 4,607,000 barrels of crude oil. Such positions were
acquired at market value.
INTEREST RATE RISK
Prior to the Combination, our subsidiaries had no material interest rate
risk associated with debt used to finance our operations due to limited third
party borrowings. After completion of the offerings, we expect to have
approximately $2.1 billion outstanding under a commercial paper program. As a
result, we are exposed to market risks related to changes in interest rates. In
the future, we intend to manage our interest rate exposure using a mix of fixed
and floating interest rate debt. Following the application of the net proceeds
of the offerings, and assuming none of our outstanding commercial paper is
refinanced with long-term fixed rate debt, an increase of .5% in interest rates
would result in an increase in annual interest expense of approximately $10.5
million.
FOREIGN CURRENCY RISK
Currently we have no material foreign currency exposure.
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ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" (SFAS 133). SFAS 133 establishes standards for
derivative instruments, including certain derivative instruments embedded in
other contracts (collectively referred to as derivatives) and for hedging
activities. SFAS 133 requires that an entity recognize all derivatives as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. If certain conditions are met, a derivative may be
specifically designated as:
- a hedge of the exposure to changes in the fair value of a recognized
asset or liability or an unrecognized firm commitment;
- a hedge of the exposure to variable cash flows of a forecasted
transaction; or
- a hedge of the foreign currency exposure of a net investment in a foreign
operation, an unrecognized firm commitment, an available-for-sale
security, or a foreign-currency-denominated forecasted transaction.
The accounting for changes in the fair value of a derivative (gains and
losses) depends on the intended use of the derivative and the resulting
designation. We are required to adopt SFAS 133 on January 1, 2001. We have not
completed the process of evaluating the impact that will result from adopting
SFAS 133.
YEAR 2000
We did not experience any disruption to our operations resulting from the
transition to the year 2000. We completed our year 2000 readiness program in
November 1999. Our systems will continue to be monitored throughout the year.
The total cost of the program, including costs such as consulting and contract
costs, was approximately $2.2 million. These costs exclude replacement systems
that, in addition to being year 2000 ready, provided significantly enhanced
capabilities that benefit operations in future periods.
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BUSINESS
OUR BUSINESS
The midstream natural gas industry is the link between exploration and
production of raw natural gas and the delivery of its components to end-use
markets. We operate in the two principal segments of the midstream natural gas
industry:
- natural gas gathering, processing, transportation, marketing and storage;
and
- NGL fractionation, transportation, marketing and trading.
We are the largest gatherer of raw natural gas, based on wellhead volume,
and the largest producer of NGLs in North America. We are also one of the
largest marketers of NGLs in North America. In 1999:
- we gathered and/or transported an average of approximately 7.3 billion
cubic feet per day of raw natural gas;
- we produced an average of approximately 400,000 barrels per day of NGLs;
and
- we marketed and traded an average of approximately 486,000 barrels per
day of NGLs.
During 1999, our natural gas gathering, processing, transportation,
marketing and storage segment produced $981.5 million of gross margin and $583.1
million of EBITDA, excluding general and administrative expenses, and our NGL
fractionation, transportation, marketing and trading segment produced $38.3
million of gross margin and $38.1 million of EBITDA, excluding general and
administrative expenses.
We gather raw natural gas through gathering systems located in seven major
natural gas producing regions: Permian Basin, Mid-Continent, East Texas-Austin
Chalk-North Louisiana, Onshore Gulf of Mexico, Rocky Mountains, Offshore Gulf of
Mexico and Western Canada. Our gathering systems consist of approximately 57,000
miles of gathering pipe, with approximately 38,000 active connections to
producing wells.
Our natural gas processing operations involve the separation of raw natural
gas gathered both by our gathering systems and by third-party systems into NGLs
and residue gas. We process the raw natural gas at our 70 owned and operated
plants and at 13 third-party operated facilities in which we hold an equity
interest.
The NGLs separated from the raw natural gas by our processing operations
are either sold and transported as NGL raw mix or further separated through a
process known as fractionation into their individual components (ethane,
propane, butanes and natural gasoline) and then sold as components. We
fractionate NGL raw mix at our 12 owned and operated processing facilities and
at two third-party operated fractionators located on the Gulf Coast in which we
hold an equity interest.
We sell NGLs to a variety of customers ranging from large, multi-national
petrochemical and refining companies to small regional retail propane
distributors. Substantially all of our NGL sales are made at market-based
prices, including approximately 40% of our NGL production that is committed to
Phillips under an existing 15-year contract. We market approximately 370,000
barrels per day of NGLs processed at our owned and operated plants and 40,000
barrels per day of NGLs processed at third-party operated facilities and trade
approximately 75,000 barrels per day of NGLs at market centers.
The residue gas that results from our processing is sold at market-based
prices to marketers or end-users, including large industrial customers and
natural gas and electric utilities serving individual consumers. We market
residue gas through our wholly owned gas marketing company. We also store
residue gas at our 8.5 billion cubic foot natural gas storage facility.
On March 31, 2000, we obtained by transfer from Duke Energy the general
partner of TEPPCO. The general partner is responsible for the management and
operations of TEPPCO. We believe that our ownership of the general partner of
TEPPCO improves our business position in the transportation sector of the
midstream natural gas industry and provides additional flexibility in pursuing
our disciplined acquisition
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strategy by providing an alternative acquisition vehicle. It also provides us
with an opportunity to sell appropriate assets currently held by our company to
TEPPCO. Through our ownership of the general partner of TEPPCO we have the right
to receive from TEPPCO incentive cash distributions in addition to a 2% share of
distributions based on our general partner interest. At TEPPCO's 1999 per unit
distribution level, the general partner:
- receives approximately 14% of the cash distributed by TEPPCO to its
partners, which consists of 12% from the incentive cash distribution
and 2% from the general partner interest; and
- under the incentive cash distribution provisions, receives 50% of
any increase in TEPPCO's per unit cash distributions.
TEPPCO has agreed to acquire Atlantic Richfield Company's 50% ownership
interest in Seaway Pipeline Company for $355 million. Seaway Pipeline Company
owns a 500-mile crude oil pipeline that extends from a marine terminal at
Freeport, Texas to Cushing, Oklahoma having a capacity of 350,000 barrels per
day, a 550-mile refined products pipeline that extends from Pasadena, Texas to
Cushing having a capacity of 85,000 barrels per day and a crude oil terminal
facility in the Houston area. TEPPCO will assume ARCO's role as operator of
Seaway. The transaction is contingent upon satisfaction of regulatory
requirements.
INDUSTRY OVERVIEW
The midstream natural gas industry in North America is comprised of
approximately 150 companies that process approximately 45 billion cubic feet per
day of raw natural gas and produce approximately 1.9 million barrels per day of
NGLs. The industry generally is characterized by regional competition based on
the proximity of gathering systems and processing plants to natural gas
producing wells.
Demand for natural gas in North America has grown significantly in recent
years. We believe that demand will continue to increase and will be driven
primarily by the growth of natural gas-fired electric generation. According to
the EIA Report, U.S. demand for natural gas is expected to increase from 22
trillion cubic feet in 1999 to 32 trillion cubic feet in 2020. We believe that
oil and natural gas producers in North America will respond to increased demand
by focusing their exploration and drilling efforts on basins where pipeline and
processing capacity has been, or is being, built and where there is sufficient
capacity to meet the needs of high demand markets. We have a strong presence and
significant capacity in several of these areas (including Onshore Gulf of Mexico
and Rocky Mountains, where we are among the three largest midstream natural gas
companies based on volumes of natural gas gathered and processed) that,
according to the EIA Report, are forecasted to have significant growth in
production between now and 2020. This growth in production, which is expected to
be 2.31 trillion cubic feet in Rocky Mountain region and 1.71 trillion cubic
feet in Onshore Gulf of Mexico region by 2020, should provide us with
opportunities to increase our throughput volumes and asset utilization.
The midstream natural gas industry has experienced significant
consolidation since the mid-1990s. We believe the following factors have
contributed to this consolidation:
- significant economies of scale resulting from improved operating
efficiencies, throughput volumes and asset utilization rates that can be
achieved by strategically growing operations;
- decisions by transmission pipelines and by exploration and production
companies to divest their gathering, processing and marketing activities
and concentrate their businesses on gas transmission and on exploration
and production; and
- technological improvements.
OUR BUSINESS STRATEGY
We are the largest gatherer of raw natural gas and the largest producer and
one of the largest marketers of NGLs in North America. Our certificate of
incorporation limits the scope of our business to the midstream natural gas
industry in the United States and Canada, the marketing of NGLs in Mexico, and
the transportation, marketing and storage of other petroleum products, unless
otherwise approved by our Board of
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Directors and Duke Energy (so long as it owns at least 50% of our outstanding
common stock). We have significant midstream natural gas operations in five of
the largest natural gas producing regions in North America. To take advantage of
the anticipated growth in natural gas demand in North America, we are pursuing
the following strategies:
- Capitalize on the size and focus of our existing operations. We intend to
use the size, scope and concentration of our assets in our regions of
operation to take advantage of growth opportunities and to acquire
additional supplies of raw natural gas. Our significant market presence
and asset base generally provide us with a competitive advantage in
capturing new supplies of raw natural gas because of our resulting lower
costs of connection to new wells and of processing additional raw natural
gas. In addition, we believe our size and geographic diversity allow us
to benefit from the growth of natural gas production in multiple regions
while mitigating the adverse effects from a downturn in any one region.
- Increase our presence in each aspect of the midstream business. We are
active in each significant aspect of the midstream natural gas value
chain, including raw natural gas gathering, processing, and
transportation, NGL fractionation and NGL and residue gas transportation
and marketing. Each link in the value chain provides us with an
opportunity to earn incremental income from the raw natural gas that we
gather and from the NGLs and residue gas that we produce. We intend to
grow our significant NGL market presence by investing in additional NGL
infrastructure, including pipelines, fractionators and terminals.
- Increase our presence in high growth production areas. According to the
EIA Report, production from areas such as Western Canada, Onshore Gulf of
Mexico, Rocky Mountains and Offshore Gulf of Mexico is expected to
increase significantly to meet anticipated increases in demand for
natural gas in North America. We intend to use our strategic asset base
in these growth areas and our leading position in the midstream natural
gas industry as a platform for future growth in these areas. We plan to
increase our operations in these areas by following a disciplined
acquisition strategy, and by expanding existing infrastructure and
constructing new gathering lines and processing facilities.
- Capitalize on proven acquisition skills in a consolidating industry. In
addition to pursuing internal growth by attracting new raw natural gas
supplies, we intend to use our substantial acquisition and integration
skills to continue to participate selectively in the consolidation of the
midstream natural gas industry. We have pursued a disciplined acquisition
strategy focused on acquiring complementary assets during periods of
relatively low commodity prices and integrating the acquired assets into
our operations. Since 1996, we have completed over 20 acquisitions,
increasing our raw natural gas processing capacity by over 275%. These
acquisitions demonstrate our ability to successfully identify, acquire
and integrate attractive midstream natural gas operations.
- Further streamline our low-cost structure. Our economies of scale,
operating efficiency and resulting low cost structure enhance our ability
to attract new raw natural gas supplies and generate current income. The
low-cost provider in any region can more readily attract new raw natural
gas volumes by offering more competitive terms to producers. We believe
the Combination provides us with a complementary base of assets from
which to further extract operating efficiencies and cost reductions,
while continuing to provide superior customer service.
NATURAL GAS GATHERING, PROCESSING, TRANSPORTATION, MARKETING AND STORAGE
OVERVIEW
Our raw natural gas gathering and processing operations consist of:
- approximately 57,000 miles of gathering pipe, with connections to
approximately 38,000 active producing wells; and
- 70 owned and operated processing plants and ownership interests in 13
additional third-party operated plants, with a combined processing
capacity of approximately 7.9 billion cubic feet per day.
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We currently gather, process and/or transport approximately 7.3 billion
cubic feet per day of raw natural gas. During 1999, our natural gas gathering,
processing, transportation, marketing and storage activities produced $981.5
million of gross margin and $583.1 million of EBITDA.
Our raw natural gas gathering and processing operations are located in 11
contiguous states in the United States and two provinces in Western Canada. We
provide services in the following key North American natural gas and oil
producing regions; Permian Basin, Mid-Continent, East Texas-Austin Chalk-North
Louisiana, Onshore Gulf of Mexico, Rocky Mountains, Offshore Gulf of Mexico and
Western Canada. We have a significant presence in the first five of these
producing regions where we are among the three largest midstream natural gas
companies based on volumes of natural gas gathered and processed.
Raw Natural Gas Supply Arrangements. Typically, we take ownership of raw
natural gas at the wellhead. Each producer generally dedicates to us the raw
natural gas produced from designated oil and natural gas leases for a specific
term. The term will typically extend for three to seven years. We currently have
more than 15,000 active contracts with over 5,000 producers. We obtain access to
raw natural gas and provide our midstream natural gas service principally under
three types of contracts: percentage-of-proceeds contracts, fee-based contracts
and keep-whole contracts. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Overview -- Effects of Our Raw Natural
Gas Supply Arrangements" for a description of these types of contracts.
Raw Natural Gas Gathering. As of December 31, 1999, we had approximately 17
trillion cubic feet of raw natural gas supplies attached to our systems. We
receive raw natural gas from a diverse group of producers under contracts with
varying durations to provide a stable supply of raw natural gas through our
processing plants. A significant portion of the raw natural gas that is
processed by us is produced by large producers, including ExxonMobil, Union
Pacific Resources, BP Amoco and Phillips, which together account for
approximately 20% of our processed raw natural gas.
We continually seek new supplies of raw natural gas, both to offset natural
declines in production from connected wells and to increase throughput volume.
Historically, we have been successful in connecting additional supplies to more
than offset natural declines in production.
We obtain new well connections in our operating areas by contracting for
production from new wells or by obtaining raw natural gas that has been released
from other gathering systems. Producers may switch raw natural gas from one
gathering system to another to obtain better commercial terms, conditions and
service levels.
We believe our significant asset base and scope of our operations provides
us with significant opportunities to add released raw natural gas to our
systems. In addition, we have significant processing capacity in the Onshore
Gulf of Mexico, Offshore Gulf of Mexico and Rocky Mountain regions, which the
Energy Information Administration's report "U.S. Crude Oil, Natural Gas and
Natural Gas Liquids Reserves, 1998 Annual Report" indicates contain significant
quantities of proved natural gas reserves. We also have a presence in other
potential high-growth areas such as the Western Canadian Sedimentary Basin. As a
result of new connections resulting from both increased drilling and released
raw natural gas, we connected approximately 1,300 additional wells in 1998 and
1,500 additional wells in 1999.
Gathering systems are operated at design pressures that will maximize the
total throughput from all connected wells. On gathering systems where it is
economically feasible, we operate at a relatively low pressure, which can allow
us to offer a significant benefit to raw natural gas producers. Specifically,
lower pressure gathering systems allow wells, which produce at progressively
lower field pressures as they age, to remain connected to gathering systems and
continue to produce for longer periods of time. As the pressure of a well
declines, it becomes increasingly more difficult to deliver the remaining
production in the ground against a higher pressure that exists in the connecting
gathering system. Field compression is typically used to lower the pressure of a
gathering system. If field compression is not installed, then the remaining
production in the ground will not be produced because it cannot overcome the
higher gathering system pressure. In contrast, if field compression is
installed, then a well can continue delivering production that otherwise would
not be produced. Our field compression systems provide the flexibility of
connecting a high pressure well to the
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downstream side of the compressor even though the well is producing at a
pressure greater than the upstream side. As the well ages and the pressure
naturally declines, the well can be reconnected to the upstream, low pressure
side of the compressor and continue to produce. By maintaining low pressure
systems with field compression units, we believe that the wells connected to our
systems are able to produce longer and at higher volumes before disconnection is
required.
Raw Natural Gas Processing. Most of our natural gas gathering systems feed
into our natural gas processing plants. Our processing plants produced an
average of approximately 4.7 billion cubic feet per day of residue gas and an
average of approximately 400,000 barrels per day of NGLs during 1999.
Our natural gas processing operations involve the extraction of NGLs from
raw natural gas, and, at certain facilities, the fractionation of NGLs into
their individual components (ethane, propane, butanes and natural gasoline). We
sell NGLs produced by our processing operations to a variety of customers
ranging from large, multi-national petrochemical and refining companies,
including Phillips, to small, regional retail propane distributors.
At three plants, we also extract helium from the residue gas stream. Helium
is used for medical diagnostics, in arc welding and other metallurgical and
chemical processes, in the space exploration program and other scientific
applications, for diluting oxygen for breathing (by patients with respiratory
ailments and by deep-sea divers) and for inflating lighter-than-air aircraft and
balloons. These plants are among the few helium extraction facilities in the
United States. We extracted approximately 1.3 billion cubic feet of helium
during 1999, producing revenues of approximately $33 million.
Hydrogen sulfide also is separated in the treating and processing cycle.
During 1999, we produced and sold approximately 93,000 long tons of sulfur,
producing revenues of approximately $1.1 million.
We also remove off-quality crude oil, nitrogen, carbon dioxide and brine
from the raw natural gas stream. The nitrogen and carbon dioxide are released
into the atmosphere, and the crude oil and brine are accumulated and stored
temporarily at field compressors or the various plants. The brine is transported
to licensed disposal wells owned either by us or by third parties. The crude oil
is sold in the off-quality crude oil market.
Residue Gas Marketing. In addition to our gathering and processing
activities discussed above, we are involved in the purchase and sale of residue
gas, directly or through our wholly owned gas marketing company. Our gas
marketing efforts primarily involve supplying the residue gas demands of
end-user customers that are physically attached to our pipeline systems and
supplying the gas processing requirements associated with our keep-whole
processing agreements.
We are focused on extracting the highest possible value for the residue gas
that results from our processing and transportation operations. Of the residue
gas that we market, we currently sell approximately 25% to various on-system
users and approximately 75% to industrial end-users, national wholesale gas
marketing companies (including Duke Energy Trading and Marketing, a subsidiary
of Duke Energy and one of the largest gas marketers in the United States) and
electric utilities.
Our Spindletop storage facility plays an important role in our ability to
act as a full-service natural gas marketer. We lease approximately two-thirds of
the facility's capacity to our customers, and we use the balance to manage
relatively constant natural gas supply volumes with uneven demand levels and
provide "backup" service to our customers.
The natural gas marketing industry is a highly competitive commodity
business with a significant degree of price transparency. We provide a full
range of natural gas marketing services in conjunction with the gathering,
processing, and transportation services we offer on our facilities, which allows
us to use our asset infrastructure to enhance our revenues across each aspect of
the natural gas value chain.
Financial Services. We provide mezzanine financing to producers seeking
capital for production enhancement in our core physical and marketing asset
areas. We provide financing to operators as part of our efforts to increase
utilization of our existing assets, gain access to incremental supplies and
generate opportunities for us to expand existing infrastructure and/or construct
new gathering lines and processing
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facilities. The majority of the financing plans we offer are asset-based and we
require that our producers satisfy risk/reward tolerances. This program has
created significant gathering and processing opportunities for us. At December
31, 1999, we had $21.9 million in financing outstanding under this program.
REGIONS OF OPERATIONS
Our operations cover substantially all of the major natural gas producing
regions in the United States, as well as portions of Western Canada. In
addition, our geographic diversity reduces the impact of regional price
fluctuations and regional changes in drilling activity.
Our raw natural gas gathering and processing assets are managed in line
with the seven geographic regions in which we operate. The following table
provides information concerning the raw natural gas gathering systems and
processing plants currently owned or operated by us.
<TABLE>
<CAPTION>
COMPANY PLANTS
GAS GATHERING OPERATED OPERATED NET PLANT
REGION SYSTEM(MILES) PLANTS BY OTHERS CAPACITY(MMCF/D)
- ------ ------------- -------- --------- ----------------
<S> <C> <C> <C> <C>
Permian Basin........ 12,890 19 2 1,417
Mid-Continent........ 30,820 19 2 2,273
East Texas-Austin
Chalk-North
Louisiana.......... 5,869 10 1 1,555
Onshore Gulf of
Mexico............. 3,008 7 1 1,083
Rocky Mountains...... 3,765 10 1 600
Offshore Gulf of
Mexico............. 490 2 6 909
Western Canada....... 144 3 0 109
------ -- -- -----
Total................ 56,986 70 13 7,946
====== == == =====
<CAPTION>
1999 OPERATING DATA
--------------------------------------------------------
PLANT INLET RESIDUE GAS NGLS
REGION VOLUME(MMCF/D) PRODUCTION(MMCF/D) PRODUCTION(BBLS/D)
- ------ -------------- ------------------ ------------------
<S> <C> <C> <C>
Permian Basin........ 1,123 816 124,507
Mid-Continent........ 1,459 1,223 120,551
East Texas-Austin
Chalk-North
Louisiana.......... 1,033 937 69,420
Onshore Gulf of
Mexico............. 757 675 37,944
Rocky Mountains...... 387 319 24,708
Offshore Gulf of
Mexico............. 736 691 15,148
Western Canada....... 76 72 278
----- ----- -------
Total................ 5,571 4,733 392,556(1)
===== ===== =======
</TABLE>
- ---------------
(1) Excludes approximately 7,500 barrels per day processed at third party plants
on our behalf.
Our key suppliers of raw natural gas in these seven regions include major
integrated oil companies, independent oil and gas producers, intrastate pipeline
companies and natural gas marketing companies. Our principal competitors in this
segment of our business consist of major integrated oil companies, independent
oil and gas gathers, and interstate and intrastate pipeline companies.
Regional Growth Strategies. Growth of our gas gathering and processing
operations is key to our success. Increased raw natural gas supply enables us to
increase throughput volumes and asset utilization throughout our entire
midstream natural gas value chain. As we develop our regional growth strategies,
we evaluate the nature of the opportunity that a particular region presents. The
attributes that we evaluate include the nature of the gas reserves and
production profile, existing midstream infrastructure including capacity and
capabilities, the regulatory environment, the characteristics of the
competition, and the competitive position of our assets and capabilities. In a
general sense, we employ one or more of the strategies described below:
- Growth -- in regions where production is expected to grow significantly
and/or there is a need for additional gathering and processing
infrastructure, we plan to expand our gathering and processing assets by
following a disciplined acquisition strategy, by expanding existing
infrastructure, and by constructing new gathering lines and processing
facilities.
- Consolidation -- in regions that include mature producing basins with
flat to declining production or that have excess gathering and processing
capacity, we seek opportunities to efficiently consolidate the existing
asset base in order to increase utilization and operating efficiencies
and realize economies of scale.
- Opportunistic -- in regions where production growth is not primarily
generated by new exploration drilling activity we intend to optimize our
existing assets and selectively expand certain facilities or construct
new facilities to seize opportunities to increase our throughput. These
regions are generally
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<PAGE> 49
experiencing stable to increasing production through the application of
new drilling technologies like 3-D seismic, horizontal drilling and
improved well completion techniques. The application of new technologies
is causing the drilling of additional wells in areas of existing
production and recompletions of existing wells which create additional
opportunities to add new gas supplies.
In each region, we plan to apply both our broad overall business strategy
and the strategy uniquely suited to each region. We believe this plan will yield
balanced growth initiatives, including new construction in certain high growth
areas, expansion of existing systems and complementary acquisitions, combined
with efficiency improvements and/or asset consolidation. We also plan to
rationalize assets and redeploy capital to higher value opportunities.
A description of our operations, key suppliers and principal competitors in
each region is set forth below:
Permian Basin. Our facilities in this region are located in West Texas and
Southeast New Mexico. We own majority interests in and are the operator of 19
natural gas processing plants in this region. In addition, we own minority
interest in two other natural gas processing plants that are operated by others.
Our natural gas processing plants are strategically located to access production
of the Permian Basin. Our plants have processing capacity net to our interest of
1.4 billion cubic feet of raw natural gas per day. Operations in this region are
primarily focused on gathering and processing, but we also are positioned for
marketing residue gas and NGLs. We offer low, intermediate, and high pressure
gathering and processing and both high and low NGLs content treating. Three of
our processing facilities provide fractionation services. Residue gas sales are
enhanced by access to the Waha Hub where multiple pipeline interconnects source
gas for virtually every market in the United States. Our older facilities have
been modernized to improve product recoveries, and most of our plants offer
sulfur removal. During 1999, these plants operated at an overall 79% capacity
utilization rate. On average, the raw natural gas from West Texas contains
approximately 5.2 gallons of NGLs per thousand cubic feet, while raw natural gas
from New Mexico contains approximately 4.6 gallons of NGLs per thousand cubic
feet.
As we generally pursue a consolidation strategy in this region, our assets
will allow us to compete for new gas supplies in most major fields and benefit
from the expected increase in drilling and production from technological
advances. In addition, our ability to redirect gas between several processing
plants allows us to maximize utilization of our processing capacity in this
region.
Our key suppliers in this region include ExxonMobil, Union Pacific
Resources and Yates Petroleum. Our principal competitors in this region include
Dynegy, Koch and Texaco.
Mid-Continent. Our facilities in this region are located in Oklahoma,
Kansas and the Texas Panhandle. In this region, we own and are the operator of
19 natural gas processing plants, 18 of which we own a 100% interest and one of
which we own a 50% interest. We also own minority interests in two other natural
gas processing plants that are operated by others. We gather and process raw
natural gas primarily from the Arkoma, Ardmore, and Anadarko basins, including
the prolific Hugoton and Panhandle fields. Our plants have processing capacity
net to our interest of 2.3 billion cubic feet of raw natural gas per day. During
1999, our plants operated at an overall 65% capacity utilization rate. On
average, the raw natural gas from this region contains from 3 to 5 gallons of
NGLs per thousand cubic feet.
We also produce approximately 28% of the United States domestic supply of
helium from our Mid-Continent facilities. Annual growth in demand for helium
over the past 15 years has been approximately 8.5% per year. Because of its
unique characteristics and use as an industrial gas, we expect demand for helium
to grow well into the future.
Existing production in the Mid-Continent region is typically from mature
fields with shallow decline profiles that will provide our plants with a
dependable source of raw natural gas over a long term. With the development of
improved exploration and production techniques such as 3-D seismic and
horizontal drilling over the past several years, additional reserves have become
economically producible in this region. We hold large acreage dedication
positions with various producers who have developed programs to add
substantially to
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their reserve base. The infrastructure of our plants and gathering facilities
are uniquely positioned to pursue our consolidation strategy.
Our key suppliers in this region include Phillips, OXY USA and Anadarko
Petroleum. Our principal competitors in this region include Coastal Field
Services, Oneok Field Services and Enogex Inc.
East Texas-Austin Chalk-North Louisiana. Our facilities in this region are
located in East Texas, North Louisiana and the Austin Chalk formation of East
Central Texas and Central Louisiana. We own majority interests in and are the
operator of 10 natural gas processing plants in this region. In addition, we own
a minority interest in one natural gas processing plant that is operated by
another entity. Our plants have processing capacity net to our interest of 1.6
billion cubic feet of raw natural gas per day. During 1999, these plants
operated at an overall 66% capacity utilization rate. In this region we also own
three intrastate gathering systems, which, in the aggregate, can gather and
transport approximately 480 million cubic feet of raw natural gas per day.
Our East Texas operations are centered around our East Texas Complex,
located near Carthage, Texas. This plant complex is the second largest raw
natural gas processing facility in the continental United States, based on
liquids recovery, and currently produces approximately 40,000 barrels per day of
NGLs. Our 165-mile gathering network aggregates production to the East Texas
Complex, which currently gathers approximately 130 million cubic feet of raw
natural gas per day. In addition, the plant is connected to and processes raw
natural gas from several other gathering systems, including those owned by Koch,
Union Pacific Resources and American Central. Substantially all of the raw
natural gas processed at the complex is contracted under percent-of-proceeds
agreements with an average remaining term of approximately six years. This plant
is adjacent to our Carthage Hub, which delivers residue gas to interconnects
with 14 interstate and intrastate pipelines. The Carthage Hub, with an aggregate
delivery capacity of two billion cubic feet per day, acts as a key exchange
point for the purchase and sale of residue gas. We also operate Panola pipeline,
with throughput capacity of up to 40,000 barrels per day, which carries NGLs
from our East Texas Complex to markets in Mont Belvieu, Texas. In this region,
we also own and operate the Fuels Cotton Valley Gathering System, which consists
of 76 miles of pipeline and which gathers approximately 30 million cubic feet of
raw natural gas per day.
As we pursue a combination of opportunistic and consolidation strategies in
this diverse region, we intend to leverage our modern processing capacity,
intrastate gas pipeline and NGL assets.
Our key suppliers in this region include Union Pacific Resources, Devon and
Phillips. Our principal competitors in this region include Koch, El Paso Field
Services and Southwest Pipeline Corporation.
Onshore Gulf of Mexico. Our facilities in this region are located in South
Texas and the Southeastern portions of the Texas Gulf Coast. We own a 100%
interest in and are the operator of seven natural gas processing plants and the
Spindletop gas storage facility in this region. In addition, we own a minority
interest in one natural gas processing plant that is operated by another entity.
Our plants have processing capacity net to our interest of 1.1 billion cubic
feet of raw natural gas per day. During 1999, the plants in this region ran at
an overall 70% capacity utilization rate.
Our Spindletop natural gas storage facility is located near Beaumont, Texas
and has current working natural gas capacity of 8.5 billion cubic feet, plus
expansion potential of up to an additional 10 billion cubic feet. We currently
have approximately 5.6 billion cubic feet of the available storage capacity
under lease with expiration terms out to July 2004. This high deliverability
storage facility is positioned to meet the needs of the natural gas-fired
electric generation marketplace, currently the fastest growing demand segment of
the natural gas industry. The facility interconnects with 12 interstate and
intrastate pipelines and is designed to handle the hourly demand needs of power
generators.
To achieve growth in our Onshore Gulf of Mexico region, we intend to fully
integrate our recently acquired assets and use the diversity of our current
asset base to provide value-added services to our broad customer base. We will
also seek additional opportunities to participate in the anticipated growth in
supply from this region.
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<PAGE> 51
Our key suppliers in this region include Collins & Ware, United Oil and
Minerals and TransTexas. Our principal competitors in this region include PG&E
Texas Transmission, Tejas Gas Corp. and Houston Pipe Line Company.
Rocky Mountains. Our facilities in this region are located in the DJ Basin
of Northern Colorado, the Ladder Creek area of Southeast Colorado and the
Greater Green River Basin and Overthrust Belt areas of Southwest Wyoming and
Northeast Utah. We own a 100% interest in and are the operator of 10 natural gas
processing plants in this region. In addition, we own a minority interest in one
natural gas processing plant that is operated by another entity. Our plants have
processing capacity net to our interest of 600 million cubic feet of raw natural
gas per day. During 1999, our plants in this region operated at an overall 65%
capacity utilization rate. These assets provide for the gathering and processing
of raw natural gas, the transportation and fractionation of NGLs, nitrogen
rejection, and helium extraction and liquification services.
The Rocky Mountains region has well placed assets with strong competitive
positions in areas that are expected to benefit from increased drilling
activity, providing us with a platform for growth. In this region, we expect to
achieve growth through our existing assets, strategic acquisitions and
development of new facilities. In addition, we intend to pursue an opportunistic
strategy in areas where new technologies and recovery methods are being
employed.
Our key suppliers in the region include Patina Oil & Gas, HS Resources and
Union Pacific Resources. Our principal competitors in this region include HS
Resources, Williams Field Services and Western Gas Resources.
Offshore Gulf of Mexico. Our facilities in this region are located along
the Gulf Coast areas of Louisiana, Mississippi and Alabama. We own minority
interests in and are the operator of two natural gas processing plants in this
region. In addition, we own a 50% interest in one natural gas processing plant
and minority interests in five other natural gas processing plants, all of which
are operated by other entities. The plants have processing capacity net to our
interest of 909 million cubic feet of raw natural gas per day. During 1999, our
plants in this region operated at an overall 81% capacity utilization rate. Each
of these plants straddle offshore pipeline systems delivering a relatively lower
NGLs content gas stream than that of our onshore gathering systems, as
approximately 50% of the produced NGLs content consists of ethane. As a result,
the offshore region's revenues are concentrated in fee-based business
arrangements and are less dependent on fluctuating commodity prices.
In addition, we own a 37% interest in the Dauphin Island Gathering
Partnership, an offshore gathering and transmission system. Dauphin Island has
attractive market outlets, including deliveries to Texas Eastern Transmission
Corporation, Transco, Koch, Gateway and Florida Gas Transmission for re-delivery
to the Southeast, Mid-Atlantic, Northeast and New England natural gas markets.
Dauphin Island's leased capacity on Texas Eastern Transmission Corporation's
pipeline provides us with a means to cross the Mississippi River to deliver or
receive production from the Venice, Louisiana natural gas hub area. Further, the
Main Pass Oil Gathering Company system, in which we own a 33% interest, also has
access to a variety of markets through existing shallow-water and deep-water
interconnections and dual market outlets into Shell's Delta terminal as well as
Chevron's Cypress terminal.
We believe that the Offshore Gulf of Mexico production area will be one of
the most active regions for new drilling in the United States. Our strategic
growth plan for this region is to add new facilities to our existing base so
that we can capture new offshore development opportunities. Our existing assets
in the eastern Gulf of Mexico are positioned to access new and ongoing
production developments. Based on our broad range of assets in the region, we
intend to capture incremental margins along the natural gas value chain.
Our key suppliers in the Offshore Gulf of Mexico region include Coastal,
ExxonMobil and CNG Producing Company. Our principal competitors in this region
include El Paso Energy, Coral Energy and Williams.
Western Canada. We own a majority interest in and are the operator of three
natural gas processing plants in Western Canada that are strategically located
in the Peace River Arch area of Northwestern Alberta. Our facilities in this
region have processing capacity net to our interest of 109 million cubic feet of
raw natural
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gas per day. Our 144-mile gathering system located in this region supports these
processing facilities. During 1999, our processing plants in this area operated
at an overall 70% capacity utilization rate. Our processing facilities in this
area are new, with the majority having been constructed since 1995. Our
processing arrangements are primarily fee-based, providing an income stream that
is not subject to fluctuations in commodity prices.
The Peace River Arch area continues to be an active drilling area with land
widely held among several large and small producers. Multiple residue gas market
outlets can be accessed from our facilities through connections to TransCanada's
NOVA system, the Westcoast system into British Columbia and the Alliance
Pipeline, scheduled to be operational in October 2000.
According to the EIA Report, less than 20% of the gathering and processing
assets in the area are owned by midstream gathering and processing companies. As
a result, we believe that significant growth opportunities exist in this region.
We anticipate that producers in this area may follow the lead of U.S. producers
and divest their midstream assets over the next few years. We are positioned to
capitalize on this fundamental shift in the Canadian natural gas processing
industry and plan to expand our position in Alberta and British Columbia through
additional acquisitions and greenfield projects.
Our key suppliers in this region include Star Oil & Gas Ltd., Talisman
Energy Inc. and Anderson Exploration Ltd. Our principal competitors in the area
include TransCanada Midstream, Talisman Energy Inc. and Westcoast Energy, Inc.
NATURAL GAS LIQUIDS TRANSPORTATION, FRACTIONATION AND MARKETING
OVERVIEW
We market our NGLs and provide marketing services to third party NGL
producers and sales customers in significant NGL production and market centers
in the United States. During 1999, our NGL transportation, fractionation and
marketing activities produced $38.3 million of gross margin and $38.1 million of
EBITDA. In 1999, we marketed and traded approximately 486,000 barrels of NGLs
per day, of which approximately 85% was production for our own account, ranking
us as one of the largest NGLs marketers in the country.
Our NGL services include plant tailgate purchases, transportation,
fractionation, flexible pricing options, price risk management and
product-in-kind agreements. Our primary NGL operations are located in close
proximity to our gathering and processing assets in each of the regions in which
we operate, other than Western Canada. We own interests in two NGLs
fractionators at the Mont Belvieu, Texas market center, the Mont Belvieu I
fractionation facility and the Enterprise Products fractionation facility. In
addition, we own interests in two major NGLs pipelines serving the Mont Belvieu
facilities, the wholly owned Panola Pipeline in East Texas and an interest in
the Black Lake Pipeline in Louisiana and East Texas. We also own several
regional fractionation plants and NGLs pipelines.
We possess a large asset base of NGL fractionators and pipelines that are
used to provide value-added services to our refining, chemical, industrial,
retail and wholesale propane-marketing customers. We intend to capture premium
value in local markets while maintaining a low cost structure by maximizing
facility utilization at our 12 regional fractionators and 12 pipeline systems.
STRATEGY
Our strategy is to exploit the size, scope and reliability of supply from
our raw natural gas processing operations and apply our knowledge of NGL market
dynamics to make additional investments in NGL infrastructure. Our
interconnected natural gas processing operations provide us with an opportunity
to capture fee-based investment opportunities in certain NGL assets, including
pipelines, fractionators and terminals. In conjunction with this investment
strategy and as an enhancement to the margin generation from our NGL assets, we
also intend to focus on the following areas: producer services, local sales and
fractionation, market hub fractionation, transportation and market center
trading and storage, each of which briefly is discussed below.
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<PAGE> 53
Producer Services. We plan to expand our services to producers principally
in the areas of price risk management and handling the marketing of their
products. Over the last several years, we have expanded our supply base
significantly beyond our own equity production by providing a long-term market
for third-party NGLs at competitive prices.
Local Sales and Fractionation. We will seek opportunities to maximize value
of our product by expanding local sales. We have fractionation capabilities at
14 of our raw natural gas processing plants. Our ability to fractionate NGLs at
regional processing plants provides us with direct access to local NGLs markets.
Market Hub Fractionation. We will focus on optimizing our product slate
from our two Gulf Coast fractionators, the Mont Belvieu I and Enterprise
Products fractionators, where we have a combined owned capacity of 57,000
barrels per day. The control of products from these fractionators complements
our market center trading activity.
Transportation. We will seek additional opportunities to invest in NGL
pipelines and secure favorable third party transportation arrangements. We use
company-owned NGL pipelines to transport approximately 94,500 barrels per day of
our total NGL pipeline volumes, providing transportation to market center
fractionation hubs or to end use markets. We also are a significant shipper on
third party pipelines in the Rocky Mountains, Mid-Continent and Permian Basin
producing regions and, as a result, receive the benefit of incentive rates on
many of our NGLs shipments.
Market Center Trading and Storage. We use trading and storage at the Mont
Belvieu, Texas and Conway, Kansas NGL market centers to manage our price risk
and provide additional services to our customers. We undertake these activities
through the use of fixed forward sales, basis and spread trades, storage
opportunities, put/call options, term contracts and spot market trading. We
believe there are additional opportunities to grow our price risk management
services with our industrial customer base.
KEY SUPPLIERS AND COMPETITION
The marketing of NGLs is a highly competitive business that involves
integrated oil and natural gas companies, mid-stream gathering and processing
companies, trading houses, international liquid propane gas producers and
refining and chemical companies. There is competition to source NGLs from plant
operators for movement through pipeline networks and fractionation facilities as
well as to supply large consumers such as multi-state propane, refining and
chemical companies with their NGLs needs. Our three largest suppliers are our
own plants, Union Pacific Resources and Pacific Gas & Electric. Our largest
sales customers are Phillips, Dow Chemical and ExxonMobil, which accounted for
12%, 2% and 1%, respectively, of our total revenues in 1999. Our three principal
competitors in the marketing of NGLs are Dynegy, Koch and Enterprise. In 1999,
we marketed and traded an average of approximately 486,000 barrels per day, or
approximately 19% of the available domestic supply, which includes gas plant
production, refinery plant production and imports.
TEPPCO
On March 31, 2000, we obtained by transfer from Duke Energy, the general
partner of TEPPCO, a publicly traded master limited partnership. TEPPCO operates
in two principal areas:
- refined products and liquefied petroleum gases transportation; and
- crude oil and NGLs transportation and marketing.
TEPPCO is one of the largest pipeline common carriers of refined petroleum
products and liquefied petroleum gases in the United States. Its operations in
this line of business consist of:
- interstate transportation, storage and terminaling of petroleum products;
- short-haul shuttle transportation of liquefied petroleum gas at the Mont
Belvieu, Texas complex;
- sale of product inventory;
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- fractionation of NGLs; and
- ancillary services.
TEPPCO's refined products and liquefied petroleum gas pipeline system includes
approximately 4,300 miles of pipeline which extend from southeast Texas through
the central and midwestern United States to the northeastern United States.
TEPPCO's refined products and liquefied petroleum gas pipeline system has
storage capacity of 13 million barrels of refined petroleum products and 38
million barrels of liquefied petroleum gas.
Through its crude oil and NGLs transportation and marketing business,
TEPPCO gathers, stores, transports and markets crude oil, NGLs, lube oil and
specialty chemicals, principally in Oklahoma, Texas and the Rocky Mountain
region. TEPPCO's crude oil and NGLs assets include approximately 1,950 miles of
crude oil pipeline and 1.7 million barrels of crude oil storage and
approximately 425 miles of NGL pipeline with an aggregate capacity of 25,000
barrels per day.
We believe that our ownership of the general partnership interest of TEPPCO
improves our business position in the transportation sector of the midstream
natural gas industry and provides us additional flexibility in pursuing our
disciplined acquisition strategy by providing an alternative acquisition
vehicle. It also provides us with an opportunity to sell appropriate assets
currently held by our company to TEPPCO.
The general partner of TEPPCO manages and directs TEPPCO under the TEPPCO
partnership agreement and the partnership agreements of its operating
partnerships. Under the partnership agreements, the general partner of TEPPCO is
reimbursed for all direct and indirect expenses it incurs or payments it makes
on behalf of TEPPCO.
TEPPCO makes quarterly cash distributions of its available cash, which
consists generally of all cash receipts less disbursements and cash reserves
necessary for working capital, anticipated capital expenditures and
contingencies, the amounts of which are determined by the general partner of
TEPPCO.
The partnership agreements provide for incentive distributions payable to
the general partner of TEPPCO out of TEPPCO's available cash in the event
quarterly distributions to its unitholders exceed certain specified targets. In
general, subject to certain limitations, if a quarterly distribution exceeds a
target of $.275 per limited partner unit, the general partner of TEPPCO will
receive incentive distributions equal to:
- 15% of that portion of the distribution per limited partner unit which
exceeds the minimum quarterly distribution amount of $.275 but is not
more than $.325, plus
- 25% of that portion of the quarterly distribution per limited partner
unit which exceeds $.325 but is not more than $.45, plus
- 50% of that portion of the quarterly distribution per limited partner
unit which exceeds $.45.
At TEPPCO's 1999 per unit distribution level, the general partner:
- receives approximately 14% of the cash distributed by TEPPCO to its
partners, which consists of 12% from the incentive cash distribution and
2% from the general partner interest; and
- under the incentive cash distribution provisions, receives 50% of any
increase in TEPPCO's per unit cash distributions.
During 1999, total cash distributions to the general partner of TEPPCO were
$8.3 million.
TEPPCO has agreed to acquire Atlantic Richfield Company's 50% ownership
interest in Seaway Pipeline Company for $355 million. Seaway Pipeline Company
owns a 500-mile crude oil pipeline that extends from a marine terminal at
Freeport, Texas to Cushing, Oklahoma having a capacity of 350,000 barrels per
day, a 550-mile refined products pipeline that extends from Pasadena, Texas to
Cushing having a capacity of 85,000 barrels per day and a crude oil terminal
facility in the Houston area. TEPPCO will assume ARCO's role as operator of
Seaway. The transaction is contingent upon satisfaction of regulatory
requirements.
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NATURAL GAS SUPPLIERS
We purchase substantially all of our raw natural gas from producers under
varying term contracts. Typically, we take ownership of raw natural gas at the
wellhead, settling payments with producers on terms set forth in the applicable
contracts. These producers range in size from small independent owners and
operators to large integrated oil companies, such as Phillips, our largest
single supplier. No single producer accounted for more than 10% of our natural
gas throughput in 1999. Each producer generally dedicates to us the raw natural
gas produced from designated oil and natural gas leases for a specific term. The
term will typically extend for three to seven years and in some cases for the
life of the lease. We currently have over 15,000 active contracts with over
5,000 producers. We consider our relations with our producers to be good. For a
description of the types of contracts we have entered into with our suppliers,
please see "Natural Gas Gathering, Processing, Transportation, Marketing and
Storage--Raw Natural Gas Supply Arrangements."
COMPETITION
We face strong competition in acquiring raw natural gas supplies. Our
competitors in obtaining additional gas supplies and in gathering and processing
raw natural gas include:
- major integrated oil companies;
- major interstate and intrastate pipelines or their affiliates;
- other large raw natural gas gatherers that gather, process and market
natural gas and/or NGLs; and
- a relatively large number of smaller raw natural gas gatherers of varying
financial resources and experience.
Competition for raw natural gas supplies is concentrated in geographic
regions based upon the location of gathering systems and natural gas processing
plants. Although we are one of the largest gatherers and processors in most of
the geographic regions in which we operate, most producers in these areas have
alternate gathering and processing facilities available to them. In addition,
producers have other alternatives, such as building their own gathering
facilities or in some cases selling their raw natural gas supplies without
processing. Competition for raw natural gas supplies in these regions is
primarily based on:
- the reputation, efficiency and reliability of the gatherer/processor,
including the operating pressure of the gathering system;
- the availability of gathering and transportation;
- the pricing arrangement offered by the gatherer/processor; and
- the ability of the gatherer/processor to obtain a satisfactory price for
the producers' residue gas and extracted NGLs.
In addition to competition in raw natural gas gathering and processing,
there is vigorous competition in the marketing of residue gas. Competition for
customers is based primarily upon the price of the delivered gas, the services
offered by the seller, and the reliability of the seller in making deliveries.
Residue gas also competes on a price basis with alternative fuels such as oil
and coal, especially for customers that have the capability of using these
alternative fuels and on the basis of local environmental considerations. Also,
to foster competition in the natural gas industry, certain regulatory actions of
FERC and some states have allowed buying and selling to occur at more points
along transmission and distribution systems.
Competition in the NGLs marketing area comes from other midstream NGLs
marketing companies, international producers/traders, chemical companies and
other asset owners. Along with numerous marketing competitors, we offer price
risk management and other services. We believe it is important that we tailor
our services to the end-use customer to remain competitive.
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REGULATION
Transportation. Historically, the transportation and sale for resale of
natural gas in interstate commerce have been regulated under the Natural Gas Act
of 1938, the Natural Gas Policy Act of 1978, and the regulations promulgated
thereunder by FERC. In the past, the federal government regulated the prices at
which natural gas could be sold. In 1989, Congress enacted the Natural Gas
Wellhead Decontrol Act, which removed all Natural Gas Act and Natural Gas Policy
Act price and non-price controls affecting wellhead sales of natural gas.
Congress could, however, reenact field natural gas price controls in the future,
though we know of no current initiative to do so.
As a gatherer, processor and marketer of raw natural gas, we depend on the
natural gas transportation and storage services offered by various interstate
and intrastate pipeline companies to enable the delivery and sale of our residue
gas supplies. In accordance with methods required by FERC for allocating the
system capacity of "open access" interstate pipelines, at times other system
users can preempt the availability of interstate natural gas transportation and
storage service necessary to enable us to make deliveries and sales of residue
gas. Moreover, shippers and pipelines may negotiate the rates charged by
pipelines for such services within certain allowed parameters. These rates will
also periodically vary depending upon individual system usage and other factors.
An inability to obtain transportation and storage services at competitive rates
can hinder our processing and marketing operations and affect our sales margins.
The intrastate pipelines that we own are subject to state regulation and,
to the extent they provide interstate services under Section 311 of the Natural
Gas Policy Act of 1978, also are subject to FERC regulation. We also own an
interest in a natural gas gathering system and interstate transmission system
located in offshore waters south of Louisiana and Alabama. The offshore
gathering system is not a jurisdictional entity under the Natural Gas Act; the
interstate offshore transmission system is regulated by FERC.
Commencing in April 1992, FERC issued Order No. 636 and a series of related
orders that require interstate pipelines to provide open-access transportation
on a basis that is equal for all marketers of natural gas. FERC has stated that
it intends for Order No. 636 to foster increased competition within all phases
of the natural gas industry. Order No. 636 applies to our activities in Dauphin
Island Gathering Partners and how we conduct gathering, processing and marketing
activities in the market place serviced by Dauphin Island Gathering Partners.
The courts have largely affirmed the significant features of Order No. 636 and
the numerous related orders pertaining to individual pipelines, although certain
appeals remain pending and FERC continues to review and modify its regulations.
For example, the FERC recently issued Order No. 637 which, among other things:
- lifts the cost-based cap on pipeline transportation rates in the capacity
release market until September 30, 2002 for short-term releases of
pipeline capacity of less than one year;
- permits pipelines to charge different maximum cost-based rates for peak
and off-peak periods;
- encourages, but does not mandate, auctions for pipeline capacity;
- requires pipelines to implement imbalance management services;
- restricts the ability of pipelines to impose penalties for imbalances,
overruns and non-compliance with operational flow orders; and
- implements a number of new pipeline reporting requirements.
Order No. 637 also requires the FERC to analyze whether the FERC should
implement additional fundamental policy changes, including, among other things,
whether to pursue performance-based ratemaking or other non-cost based
ratemaking techniques and whether the FERC should mandate greater
standardization in terms and conditions of service across the interstate
pipeline grid. In addition, the FERC recently implemented new regulations
governing the procedure for obtaining authorization to construct new pipeline
facilities and has issued a policy statement, which it largely affirmed in a
recent order on rehearing, establishing a presumption in favor of requiring
owners of new pipeline facilities to charge rates based solely on
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the costs associated with such new pipeline facilities. We cannot predict what
further action FERC will take on these matters. However, we do not believe that
we will be affected by any action taken previously or in the future on these
matters materially differently than other natural gas gatherers, processors and
marketers with which we compete.
Additional proposals and proceedings that might affect the natural gas
industry are pending before Congress, FERC and the courts. The natural gas
industry historically has been heavily regulated; therefore, there is no
assurance that the less stringent and pro-competition regulatory approach
recently pursued by FERC and Congress will continue.
Gathering. The Natural Gas Act exempts natural gas gathering facilities
from the jurisdiction of FERC. Interstate natural gas transmission facilities,
on the other hand, remain subject to FERC jurisdiction. FERC has historically
distinguished between these two types of facilities on a fact-specific basis. We
believe that our gathering facilities and operations meet the current tests that
FERC uses to grant non-jurisdictional gathering facility status. However, there
is no assurance that FERC will not modify such tests or that all of our
facilities will remain classified as natural gas gathering facilities.
Some states in which we own gathering facilities have adopted laws and
regulations that require gatherers either to purchase without undue
discrimination as to source or supplier or to take ratably without undue
discrimination natural gas production that may be tendered to the gatherer for
handling. For example, the states of Oklahoma and Kansas also have adopted
complaint-based statutes that allow the Oklahoma Corporation Commission and the
Kansas Corporation Commission, respectively, to remedy discriminatory rates for
providing gathering service where the parties are unable to agree. In a similar
way, the Railroad Commission of Texas sponsors a complaint procedure for
resolving grievances about natural gas gathering access and rate discrimination.
The FERC recently issued Order No. 639, requiring that virtually all
non-proprietary pipeline transporters of natural gas on the outer-continental
shelf report information on their affiliations, rates and conditions of service.
Among FERC's purposes in issuing these rules was the desire to provide shippers
on the outer-continental shelf with greater assurance of open-access services on
pipelines located on the outer-continental shelf and non-discriminatory rates
and conditions of service on these pipelines. The FERC exempted Natural Gas
Act-regulated pipelines, like Dauphin Island Gathering Partners, from the new
reporting requirements, reasoning that the information that these pipelines were
already reporting was sufficient to monitor conformity with existing
non-discrimination mandates. However, pipelines not regulated under the Natural
Gas Act, like our gathering lines located on the outer-continental shelf, must
comply with the new rules. Order No. 639 creates additional significant
reporting requirements for us. The new reporting requirements could place us at
a competitive disadvantage relative to other offshore gatherers that are owned
by producers of natural gas because these other gatherers will have access to
our Order No. 639 reporting information but will have no reciprocal reporting
obligation. Additionally, the new rules provide that rates and conditions of
service acceptable under the Natural Gas Act for jurisdictional
outer-continental shelf pipelines may, nonetheless, be considered unlawful under
currently vague and undeveloped standards of discrimination under the Outer
Continental Shelf Lands Act. Order No. 639 may be altered on rehearing or on
appeal, and it is not known at this time what effect these new rules, as they
may be altered, will have on our business.
Processing. The primary function of our natural gas processing plants is
the extraction of NGLs and the conditioning of natural gas for marketing. FERC
has traditionally maintained that a processing plant that primarily extracts
NGLs is not a facility for transportation or sale of natural gas for resale in
interstate commerce and therefore is not subject to its jurisdiction under the
Natural Gas Act. We believe that our natural gas processing plants are primarily
involved in removing NGLs and, therefore, are exempt from the jurisdiction of
FERC.
Transportation and Sales of Natural Gas Liquids. We have non-operating
interests in two pipelines that transport NGLs in interstate commerce. The
rates, terms and conditions of service on these pipelines are subject to
regulation by the FERC under the Interstate Commerce Act. The Interstate
Commerce Act requires, among other things, that petroleum products (including
NGLs) pipeline rates be just and reasonable
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and non-discriminatory. The FERC allows petroleum pipeline rates to be set on at
least three bases, including historic cost, historic cost plus an index or
market factors.
Sales of Natural Gas Liquids. Our sales of NGLs are not currently regulated
and are made at market prices. In a number of instances, however, the ability to
transport and sell such NGLs are dependent on liquids pipelines whose rates,
terms and conditions or service are subject to the Interstate Commerce Act.
Although certain regulations implemented by the FERC in recent years could
result in an increase in the cost of transporting NGLs on certain petroleum
products pipelines, we do not believe that these regulations affect us any
differently than other marketers of NGLs with whom we compete.
U.S. Department of Transportation. Some of our pipelines are subject to
regulation by the U.S. Department of Transportation with respect to their
design, installation, testing, construction, operation, replacement and
management. Comparable regulations exist in some states where we do business.
These regulations provide for safe pipeline operations and include potential
fines and penalties for violations.
Safety and Health. Certain federal statutes impose significant liability
upon the owner or operator of natural gas pipeline facilities for failure to
meet certain safety standards. The most significant of these is the Natural Gas
Pipeline Safety Act, which regulates safety requirements in the design,
construction, operation and maintenance of gas pipeline facilities. In addition,
we are subject to a number of federal and state laws and regulations, including
the federal Occupational Safety and Health Act and comparable state statutes,
whose purpose is to maintain the safety of workers, both generally and within
the pipeline industry. We have an internal program of inspection designed to
monitor and enforce compliance with pipeline and worker safety requirements. We
believe we are in substantial compliance with the requirements of these laws,
including general industry standards, recordkeeping requirements, and monitoring
of occupational exposure to hazardous substances.
Canadian Regulation. Our Canadian assets in the province of Alberta are
regulated by the Alberta Energy and Utilities Board. Our West Doe natural gas
gathering pipeline, which crosses the Alberta/British Columbia border, falls
under the jurisdiction of the National Energy Board.
ENVIRONMENTAL MATTERS
The operation of pipelines, plants and other facilities for gathering,
transporting, processing, treating, or storing natural gas, NGLs and other
products is subject to stringent and complex laws and regulations pertaining to
health, safety and the environment. As an owner or operator of these facilities,
we must comply with these laws and regulations at the federal, state, and local
levels. These laws and regulations can restrict or prohibit our business
activities that affect the environment in many ways, such as:
- restricting the way we can release materials or waste products into the
air, water, or soils;
- limiting or prohibiting construction activities in sensitive areas such
as wetlands or areas of endangered species habitat, or otherwise
constraining how or when construction is conducted;
- requiring remedial action to mitigate pollution from former operations,
or requiring plans and activities to prevent pollution from ongoing
operations; and
- imposing substantial liabilities on us for pollution resulting from our
operations, including, for example, potentially enjoining the operations
of facilities if it were determined that they were not in compliance with
permit terms.
In most instances, the environmental laws and regulations affecting our
operations relate to the potential release of substances or waste products into
the air, water or soils, and include measures to control or prevent the release
of substances or waste products to the environment. Costs of planning,
designing, constructing and operating pipelines, plants, and other facilities
must incorporate compliance with environmental laws and regulation and safety
standards. Failure to comply with these laws and regulations may trigger a
variety of administrative, civil and criminal enforcement measures, which can
include the assessment of monetary penalties, the imposition of remedial
requirements, the issuance of injunctions and federally authorized citizen
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suits. Moreover, it is not uncommon for neighboring landowners and other third
parties to file claims for personal injury and property damage allegedly caused
by the release of substances or other waste products to the environment. The
following is a discussion of certain environmental and safety concerns that
relate to the midstream natural gas and NGLs industry. It is not intended to
constitute a complete discussion of all applicable federal, state and local laws
and regulations, or specific matters, to which we may be subject.
Our operations are regulated by the Clean Air Act, as amended, and
comparable state laws and regulations. These laws and regulations govern
emissions into the air from our activities, for example in relation to our
processing plants and our compressor stations, and also impose procedural
requirements on how we conduct our operations. Due to the nature or our
business, we have numerous permits related to air emissions issued by state
governments or the United States Environmental Protection Agency ("EPA"). For
example, we have a large number of federal Operating Permits, known as Title V
permits, for our facilities that can impart specific emissions limitations as
well as specific operational practices with which we must comply. There are also
other state and federal requirements that might relate to our operations,
including the federal Prevention of Significant Deterioration permitting
requirements for major sources of emissions, and specific New Source Performance
Standards or Maximum Achievable Control Technology ("MACT") Standards issued by
the EPA that apply specifically to our industry or activities. Our failure to
comply with these requirements exposes us to civil enforcement actions from the
state agencies and perhaps the EPA, including monetary penalties, injunctions,
conditions or restrictions on operations, and, potentially, criminal enforcement
actions or federally authorized citizen suits.
On June 17, 1999, the EPA published in the Federal Register a final MACT
standard under Section 112 of the Clean Air Act to limit emissions of Hazardous
Air Pollutants ("HAPs") from oil and natural gas production as well as from
natural gas transmission and storage facilities. The MACT standard requires that
affected facilities reduce their emissions of HAPs by 95%, and this will affect
our various large dehydration units and potentially some of our storage vessels.
This new standard will require that we achieve this reduction by either process
modifications or installing new emissions control technology. The MACT standard
will affect us and our competitors in a like manner. The rule allows most
affected sources until at least June 2002 to comply with the requirements. While
additional capital costs are likely to result from this rule or other potential
air regulations, we believe that these changes will not have a material adverse
effect on our business, financial position or results of operations.
Our operations generate wastes, including some hazardous wastes, that are
subject to the Resource Conservation and Recovery Act ("RCRA"), as amended and
comparable state laws. However, RCRA currently exempts many natural gas
gathering and processing plant wastes from being subject to hazardous waste
requirements. Specifically, RCRA excludes from the definition of hazardous waste
produced waters and other wastes associated with the exploration, development,
or production of crude oil, natural gas or geothermal energy. Unrecovered
petroleum product wastes, however, may still be regulated under RCRA as solid
waste. Moreover, ordinary industrial wastes, such as paint wastes, waste
solvents, laboratory wastes, and waste compressor oils, may be regulated as
hazardous waste. Natural gas and NGLs transported in pipelines may also generate
some hazardous wastes. Although we believe it is unlikely that the RCRA
exemption will be repealed in the near future, repeal would increase costs for
waste disposal and environmental remediation at our facilities. Past operations
are identified from time to time as having used polychlorinated biphenyls
("PCBs"), for example, in plant air compressor systems, and when identified we
are required to address or remediate such a system that might contain PCBs in
compliance with the Toxic Substances Control Act, including any contamination
that might be associated with a release from that system.
Our operations could incur liability under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), also
known as "Superfund," and comparable state laws or other federal laws regardless
of our fault, in connection with the disposal or other release of hazardous
substances or wastes, including those arising out of historical operations
conducted by our predecessors. If we were to incur liability under CERCLA, we
could be subject to joint and several liability for the costs of cleaning up
hazardous substances, for damages to natural resources and for the costs of
certain health studies.
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We currently own or lease, and have in the past owned or leased, numerous
properties that for many years have been used for the measurement, gathering,
field compression and processing of natural gas and NGLs. Although we used
operating and disposal practices that were standard in the industry at the time,
hydrocarbons or wastes may have been disposed of or released on or under the
properties owned or leased by us or on or under other locations where such
wastes have been taken for disposal. In addition, some of these properties have
been operated by third parties whose treatment and disposal or release of
hydrocarbons or other wastes was not under our control. These properties and the
wastes disposed on them may be subject to CERCLA, RCRA and analogous state laws.
Under such laws, we could be required to remove or remediate previously disposed
wastes (including waste disposed of or released by prior owners or operators) or
property contamination (including groundwater contamination, whether from prior
owners or operators or other historic activities or spills) or to perform
remedial plugging or pit closure operations to prevent future contamination, in
some instances regardless of fault or the amount of waste we sent to the site.
EPA Region VIII issued a RCRA administrative cleanup order in 1995 with
respect to the operation of the Weld County Waste Disposal, Inc. site near Fort
Lupton Colorado, and in 1997 one of our predecessors was identified along with
other entities as a potentially responsible party for this site. We are not
aware of administrative activity at this site in the last two years. We have
various ongoing remedial matters related to historical operations similar to
others in the industry, for the reasons generally described above. These are
typically managed in conjunction with the relevant state or federal agencies to
address specific conditions, and in some cases are the responsibility of other
entities based upon contractual obligations related to the assets. In April
1999, we acquired the midstream natural gas gathering and processing assets of
Union Pacific Resources located in several states, which include 18 natural gas
plants and 365 gathering facility sites. We have entered into an agreement to
transfer liability for pre-April 1999 soil and ground water conditions
identified as part of this transaction to a third party environmental/insurance
partnership for a one-time premium payment subject to certain deductibles. With
respect to these identified environmental conditions, the environmental partner
has assumed liability and management responsibility for environmental
remediation, and the insurance partner is providing financial management,
program oversight, remediation cost cap insurance coverage for a 30 year term,
and pollution legal liability coverage for a 20 year term. This innovative
approach promotes pro-active site cleanup and closure, reduces internal resource
needs for managing remediation, and may improve the marketability of assets
based on transferability of this insurance coverage. In August 1996, we acquired
certain gas gathering and processing assets in three states from Mobil
Corporation. Under the terms of the asset purchase agreement, Mobil has retained
the liabilities and costs related to various pre-August 1996 environmental
conditions that were identified with respect to those assets. Mobil has
formulated or is in the process of developing plans to address certain of these
conditions, which we will review and monitor as clean-up activities proceed.
Our operations can result in discharges of pollutants to waters. The
Federal Water Pollution Control Act of 1972, as amended ("FWPCA"), also known as
the Clean Water Act, and analogous state laws impose restrictions and strict
controls regarding the discharge of pollutants, including NGLs or unpermitted
wastes, into state waters or waters of the United States. The unpermitted
discharge of pollutants such as from spill or leak incidents are prohibited. The
FWPCA and regulations implemented thereunder also prohibit discharges of fill
material and certain other activities in wetlands unless authorized by an
appropriately issued permit. Any unexpected release of NGLs or condensates from
our systems or facilities could result in significant remedial obligations as
well as FWPCA-related fines or penalties.
We make expenditures in connection with environmental matters as part of
our normal operations and capital expenses. For each of 2000 and 2001, we
estimate that our expensed and capital-related costs will be approximately $13
million. It should be noted, however, that stricter laws and regulations, new
interpretations of existing laws and regulations, or new information or
developments could significantly increase our compliance costs and remediation
We are subject to inherent environmental and safety risks related to our
handling of natural gas and NGL products and historical industry waste disposal
practices. We cannot assure you that we will not incur material environmental
costs and liabilities. We believe, based on our current knowledge, that we are
generally in substantial compliance with all of our necessary and material
permits, and that we are in substantial
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compliance with applicable material environmental and safety regulations. We
also use contractual measures, such as the environmental/insurance partnership
discussed above, where appropriate to mitigate environmental claims or losses
but, in the event of a default, we could be exposed to these claims. Based on
current information and taking into account protective mechanisms mentioned
here, we do not believe that compliance with federal, state or local
environmental laws and regulations will have a material adverse effect on our
business, financial position or results of operations. In addition, we believe
that the various environmental activities in which we are presently engaged are
not expected to materially interrupt or diminish our operational ability to
gather, process, and transport natural gas and NGLs. We cannot assure you,
however, that future events, such as changes in existing laws, the promulgation
of new laws, or the development or discovery of new facts or conditions will not
cause us to incur significant costs.
Our natural gas gathering pipelines and processing plants in Alberta,
Canada operate under permits from and are regulated by Alberta Environment. Our
West Doe natural gas gathering pipeline, which crosses the Alberta/British
Columbia border, is regulated by the National Energy Board in consultation with
the Canadian Environmental Assessment Agency.
LEGAL PROCEEDINGS
In November 1997, Chevron U.S.A. sued GPM Gas Corporation, one of our
subsidiaries, in the United States District Court for the Western District of
Texas, Midland Division, for alleged breach by GPM Gas Corporation of favored
nations clauses in several 1961 gas supply contracts. The case was tried in
October 1998, and in September 1999, the trial court issued an opinion and final
judgment against GPM for $13.8 million through July 1998, plus attorneys' fees
and interest for the period after July 1998. GPM Gas Corporation has appealed
the judgment to the U.S. Court of Appeals for the Fifth Circuit.
In recent years, the midstream natural gas industry has seen an increase in
the number of class actions in suits involving royalty disputes, mismeasurement
and mispayment. Although the industry has seen these types of cases before, they
were previously typically brought by a single plaintiff or small group of
plaintiffs. Many of these cases are now being brought as class actions or under
the Civil False Claims Act. We are currently named defendants in a number of
these types of cases. Although we believe we have meritorious defenses to these
cases and will continue to vigorously defend against them, these class actions
are expected to be costly and time consuming to defend.
In addition to the foregoing, from time to time, we are named as parties in
legal proceedings arising in the ordinary course of our business. We believe we
have meritorious defenses to all of these lawsuits and legal proceedings and
will vigorously defend against them. Based on our evaluation of pending matters
and after consideration of reserves established, we believe that the resolution
of these proceedings will not have a material adverse effect on our business,
financial position or results of operations.
EMPLOYEES
As of February 29, 2000, we had approximately 2,700 employees. We are a
party to two collective bargaining agreements which cover an aggregate of
approximately 180 of our employees and are bound to negotiate in good faith
toward collective bargaining agreements with two other collective bargaining
units which cover an aggregate of approximately 80 employees. We believe our
relations with our employees are good.
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MANAGEMENT
EXECUTIVE OFFICERS AND DIRECTORS
The following table provides information regarding our executive officers,
directors and nominees for director:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Jim W. Mogg(1)........................ 51 Director and Chairman of the Board,
President and Chief Executive
Officer
Michael J. Panatier(2)................ 51 Nominee for Director and Vice Chairman
of the Board
Mark A. Borer......................... 45 Senior Vice President, Southern Region
Michael J. Bradley.................... 45 Senior Vice President, Northern Region
David D. Frederick.................... 40 Senior Vice President and Chief
Financial Officer
Robert F. Martinovich................. 42 Senior Vice President, Western Region
William W. Slaughter.................. 52 Executive Vice President
Martha B. Wyrsch...................... 42 Senior Vice President, General Counsel
and Secretary
Fred J. Fowler(1)..................... 54 Director
Richard B. Priory(1).................. 53 Director
Milton Carroll(1)..................... 50 Nominee for Director
William H. Grigg(1)................... 67 Nominee for Director
John E. Lowe(2)....................... 41 Nominee for Director
J.J. Mulva(2)......................... 53 Nominee for Director
Wayne W. Murdy(1)..................... 55 Nominee for Director
Ruth G. Shaw(1)....................... 52 Nominee for Director
C.J. Silas(2)......................... 68 Nominee for Director
</TABLE>
- ---------------
(1) Duke Energy designee
(2) Phillips designee
Jim W. Mogg is Chairman of the Board, President and Chief Executive Officer
of our company. Mr. Mogg also serves as Senior Vice President--Field Services
for Duke Energy. Mr. Mogg was President and Chief Executive Officer of the
Predecessor Company from 1994 until the Combination. Mr. Mogg is also a director
of the general partner of TEPPCO. Mr. Mogg has been in the energy industry since
1973.
Michael J. Panatier is a nominee for Director and Vice Chairman of Duke
Energy Field Services Corporation. Mr. Panatier served as Senior Vice President
of Gas Processing and Marketing for Phillips from 1998 until the Combination.
From 1994 until the Combination, he also served as President and Chief Executive
Officer of GPM Gas Corporation, a subsidiary of Phillips. Mr. Panatier has been
in the energy industry since 1975.
Mark A. Borer is Senior Vice President, Southern Region of our company. Mr.
Borer held the same position with the Predecessor Company from 1999 until the
Combination. From 1992 until 1999, Mr. Borer served as Vice President of Natural
Gas Marketing for Union Pacific Fuels, Inc. Mr. Borer is also a director of the
general partner of TEPPCO. Mr. Borer has been in the energy industry since 1978.
Michael J. Bradley is Senior Vice President, Northern Region of our
company. Mr. Bradley held the same position with the Predecessor Company from
1994 until the Combination. Mr. Bradley has been in the energy industry since
1979.
David D. Frederick is Senior Vice President and Chief Financial Officer of
our company. Mr. Frederick held the same position with the Predecessor Company
from 1998 until the Combination. From 1996 until
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1998, Mr. Frederick served as Vice President and Controller of Panhandle Eastern
Pipe Line Company and Trunkline Gas Company. From 1993 until 1996, Mr. Frederick
served as Controller of Panhandle Eastern Pipe Line Company. Mr. Frederick has
been in the energy industry since 1988.
Robert F. Martinovich is Senior Vice President, Western Region of our
company. Mr. Martinovich was Senior Vice President of GPM Gas Corporation, a
subsidiary of Phillips, from 1999 until the Combination. From 1996 until 1999,
Mr. Martinovich was Vice President for the Oklahoma Region for GPM Gas
Corporation, and from 1994 until 1996, he was Business Development Manager for
GPM Gas Services Company. Mr. Martinovich has been in the energy industry since
1980.
William W. Slaughter is Executive Vice President of our company. Mr.
Slaughter held the position of Advisor to the Chief Executive Officer of the
Predecessor Company from 1998 until his appointment as Executive Vice President
in 2000. From 1997 until 1998, Mr. Slaughter was Vice President of Energy
Services for Duke Energy. From 1994 until 1997, Mr. Slaughter served as Vice
President of Corporate Strategic Planning for Pan Energy and President of Pan
Energy International Development Corporation. Mr. Slaughter is also a director
of the general partner of TEPPCO. Mr. Slaughter has been in the energy industry
since 1970.
Martha B. Wyrsch is Senior Vice President, General Counsel and Secretary of
our company. Ms. Wyrsch held the same position with the Predecessor Company from
1999 until the Combination. Ms. Wyrsch also currently serves as Vice President
and General Counsel -- Energy Transmission for Duke Energy. From 1997 until
1999, Ms. Wyrsch served as Vice President, General Counsel and Secretary of K N
Energy, Inc. From 1996 until 1997, Ms. Wyrsch served as Vice President, Deputy
General Counsel and Secretary of K N Energy, Inc. Ms. Wyrsch served K N Energy,
Inc. in a variety of positions from 1991 to 1996, including Assistant General
Counsel, Senior Counsel and Assistant Secretary. Ms. Wyrsch has been in the
energy industry since 1991.
Fred J. Fowler, a Director of our company, is Group President -- Energy
Transmission of Duke Energy and has held that position since 1997. Mr. Fowler
served as Group Vice President of Pan Energy from 1996 until 1997. From 1994
until 1996, Mr. Fowler served as President of Texas Eastern Transmission
Company. Mr. Fowler is also a director of TEPPCO. Mr. Fowler has been in the
energy industry since 1968.
Richard B. Priory, a Director of our company, is the Chairman, President
and Chief Executive Officer of Duke Energy and has held that position since
1998. Mr. Priory served as Chairman and CEO of Duke Energy from 1997 to 1998.
From 1994 until 1997, Mr. Priory served as President and Chief Operating Officer
of Duke Energy. Mr. Priory is also a director of the general partner of TEPPCO.
Mr. Priory has been in the energy industry since 1976.
Milton Carroll, a nominee for Director of our company, founded and has been
President and Chief Executive Officer of Instrument Products, Inc., a
manufacturer of oil field equipment and other precision products, since 1977.
Mr. Carroll is also a director of Reliant Energy, Ocean Energy Inc. and Health
Care Service Corporation. Mr. Carroll has been in the energy industry since
1974.
William H. Grigg, a nominee for Director of our company, is Chairman
Emeritus of Duke Energy. Mr. Grigg previously was the Chairman and Chief
Executive Officer of Duke Energy from 1994 to 1997. Mr. Grigg is also a director
and trustee of Nations Funds, Inc., a family of mutual funds, Associated
Electric and Gas Insurance Services, Ltd., The Shaw Group Inc. and Kuhlman
Electric Corporation. Mr. Grigg has been in the energy industry since 1963.
John E. Lowe, a nominee for Director of our company, is the Senior Vice
President of Planning and Strategic Transactions of Phillips Petroleum Company,
and has held that position since 2000. Mr. Lowe served as Vice President of
Planning and Strategic Transactions of Phillips from 1999 to 2000. From 1997 to
1999, Mr. Lowe served as Supply Chain Manager for Refining, Marketing and
Transportation of Phillips. From 1993 to 1997 he served as Manager of Finance
for Phillips. Mr. Lowe has been in the energy industry since 1981.
J.J. Mulva, a nominee for Director of our company, is Chairman of the
Board, President and Chief Executive Officer of Phillips Petroleum Company and
has held these positions since 1999. From 1994 to 1999,
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Mr. Mulva served as President and Chief Operating Officer of Phillips. Mr. Mulva
has been in the energy industry since 1973.
Wayne W. Murdy, a nominee for Director of our company, is the President of
Newmont Mining Corporation, and has held that position since 1999. Mr. Murdy
served as Executive Vice President and Chief Financial Officer of Newmont Mining
Corporation from 1996 to 1999. From 1992 to 1996, Mr. Murdy served as Senior
Vice President and Chief Financial Officer of Newmont Mining Corporation. Mr.
Murdy has been in the energy industry since 1978.
Ruth G. Shaw, a nominee for Director of our company, is Executive Vice
President and Chief Administrative Officer of Duke Energy and has held those
positions since 1997. From 1994 to 1997, Dr. Shaw served as Senior Vice
President, Corporate Resources of Duke Energy. From 1992 to 1994, Dr. Shaw
served as Vice President of Corporate Communications of Duke Energy. Dr. Shaw is
also a director of First Union Corporation and Avado Brands, Inc. Dr. Shaw has
been in the energy industry since 1992.
C. J. Silas, a nominee for Director of our company, retired as Chairman and
Chief Executive Officer of Phillips Petroleum Company in 1994. Mr. Silas served
as the Chairman and Chief Executive Officer of Phillips from 1985 to 1994. Mr.
Silas is also a director of Halliburton Company and The Reader's Digest
Association, Inc. Mr. Silas has been in the energy industry since 1953.
We currently have three directors and eight nominees for director. After
this offering is completed, we will have a total of 11 directors. Duke Energy
and Phillips have entered into an agreement that provides that they will vote
their shares of common stock after this offering to elect a Board of Directors
of 11 members comprised of seven individuals designated by Duke Energy, at least
two of whom must be independent, and four individuals designated by Phillips, at
least one of whom must be independent. Under the terms of the agreement, the
number of designees of each of Duke Energy and Phillips is subject to
reallocation depending on the relative interests in our company held by Duke
Energy and Phillips. For a more detailed discussion of certain voting and other
corporate governance provisions that will be in effect after this offering, see
"Description of Capital Stock -- Stockholders Agreement" and "-- Supermajority
Requirements." Each director is elected annually by our stockholders for a
one-year term.
COMMITTEES OF THE BOARD OF DIRECTORS
Upon completion of this offering, our Board of Directors will establish an
Audit Committee and a Compensation Committee. The functions of the Audit
Committee will be to:
- recommend annually to our Board of Directors the appointment of our
independent auditors;
- discuss and review in advance the scope and the fees of our annual audit
and review the results of the annual audit with our independent auditors;
- review and approve non-audit services of our independent auditors;
- review the adequacy of major accounting and financial reporting policies;
- review compliance with our major accounting and financial reporting
policies;
- review our management's procedures and policies relating to the adequacy
of our internal accounting controls and compliance with applicable laws
relating to accounting practices; and
- review our risk management policies and activities.
The Audit Committee will consist solely of independent directors.
The functions of the Compensation Committee will be to review and approve
annual salaries, bonuses, and grants of restricted stock and stock options under
our 2000 Long-Term Incentive Plan for all executive officers and key members of
our management staff, and to review and approve the terms and conditions of all
employee benefit plans or changes to these plans. Following the offerings, we
will have a Compensation Committee consisting solely of independent directors.
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BOARD COMPENSATION
Directors who are also our employees do not receive a retainer or fees for
service on our Board of Directors or any committees. We pay non-employee members
of our Board of Directors for their service as directors. Directors who are not
employees receive an annual fee of $25,000, an annual restricted stock grant of
10,000 shares and a fee of $1,000 for attendance at each meeting of our Board of
Directors and for attendance at each meeting of committees of our Board of
Directors. In addition, the chairperson for each committee of the Board of
Directors receives an annual fee of $3,000. All of our directors are reimbursed
for reasonable out-of-pocket expenses incurred in attending meetings of our
Board of Directors or committees and for other reasonable expenses related to
the performance of their duties as directors.
EXECUTIVE COMPENSATION
The following table sets forth compensation information for the year ended
December 31, 1999 for the Chief Executive Officer and each of our next five most
highly compensated executive officers. These six individuals are referred to in
this prospectus as the "Named Executive Officers."
<TABLE>
<CAPTION>
ANNUAL COMPENSATION LONG-TERM COMPENSATION
-------------------------------- ------------------------------------
OTHER RESTRICTED SECURITIES
ANNUAL STOCK UNDERLYING LTIP ALL OTHER
SALARY BONUS COMPENSATION AWARDS STOCK OPTIONS PAYOUTS COMPENSATION
NAME AND PRINCIPAL POSITION ($) ($) ($)(4) ($) (#) ($) ($)(12)
- --------------------------- ------- ------- ------------ ---------- ------------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Jim W. Mogg(1)............ 256,883 104,019 -- 947,250(5) 41,300(10) 51,964 106,761
Chairman, President and
Chief Executive Officer
Michael J. Panatier(2).... 333,000 351,445 -- 82,971(6) 24,200(11) -- 15,266
Director and Vice
Chairman of the Board
David D. Frederick(1)..... 163,542 56,683 -- 257,025(7) 15,100(10) 19,262 173,997
Senior Vice President and
Chief Financial Officer
Mark A. Borer(1)(3)....... 139,604 49,187 -- 167,063(8) 16,800(10) -- 241,959
Senior Vice President,
Southern Region
Michael J. Bradley(1)..... 192,317 68,200 -- 296,138(9) 17,300(10) 19,503 257,300
Senior Vice President,
Northern Region
Robert F. Martinovich(2)... 169,740 107,749 -- -- 8,400(11) -- 12,305
Senior Vice President,
Western Region
</TABLE>
- ---------------
(1) Prior to the offerings all compensation paid to Messrs. Mogg, Frederick,
Borer and Bradley was paid by Duke Energy and was attributable to services
provided to the Predecessor Company.
(2) Prior to the offerings all compensation paid to Messrs. Panatier and
Martinovich was paid by Phillips.
(3) Mr. Borer joined the Predecessor Company in April 1999. Amounts shown
relate to the period from April 1999 to December 31, 1999.
(4) Perquisites and other personal benefits received by each Named Executive
Officer did not exceed the lesser of $50,000 or 10% of any such officer's
salary and bonus disclosed in the table.
(5) At December 31, 1999, Mr. Mogg held an aggregate of 18,000 restricted
shares of Duke Energy common stock having a value of $902,250. Dividends
are paid on such shares. The vesting of these shares is determined by,
among other things, the performance of Duke Energy.
(6) At December 31, 1999, Mr. Panatier held an aggregate of 14,564 restricted
shares of Phillips common stock having a value of $684,508.
(7) At December 31, 1999, Mr. Frederick held an aggregate of 4,600 restricted
shares of Duke Energy common stock having a value of $230,575. Dividends
are paid on such shares. The vesting of these shares is determined by,
among other things, our performance.
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(8) At December 31, 1999, Mr. Borer held an aggregate of 3,000 restricted
shares of Duke Energy common stock having a value of $150,375. Dividends
are paid on such shares. One third of the restricted stock award will vest
each year on April 1, beginning on April 1, 2000.
(9) At December 31, 1999, Mr. Bradley held an aggregate of 5,300 restricted
shares of Duke Energy common stock having a value of $265,663. Dividends
are paid on such shares. The vesting of these shares is determined by,
among other things, our performance.
(10) Represents options granted by Duke Energy to purchase shares of Duke Energy
common stock.
(11) Represents options granted by Phillips to purchase shares of Phillips
common stock.
(12) All Other Compensation column includes the following:
- Matching contributions under the Duke Energy Retirement Savings Plan as
follows: J. Mogg, $9,600; D. Frederick, $9,434; M. Borer, $5,550; M.
Bradley, $9,600.
- Make-whole matching contribution credits under the Duke Energy Executive
Savings Plan as follows: J. Mogg, $10,111; D. Frederick, $2,020; M.
Borer, $2,775; M. Bradley, $3,977.
- Matching contributions under the Phillips Thrift Plan as follows: M.
Panatier, $2,000; R. Martinovich, $2,000.
- Matching contributions under the Phillips Long-Term Stock Savings Plan as
follows: M. Panatier, $12,580; R. Martinovich, $10,143.
- Early payment of banked vacation time benefit earned under Duke Energy
benefits program as follows: J. Mogg, $67,624; M. Bradley, $28,757.
- Supplemental relocation payments made under Duke Energy's relocation
policy as follows: M. Borer, $33,634.
- Retention bonuses paid by Duke Energy as follows: D. Frederick, $162,500;
M. Borer, $200,000; M. Bradley, $209,000.
- Mortgage rate differential payments paid by Duke Energy to account for
increased mortgage payments due to employee relocation as follows: M.
Bradley, $2,353.
- Payment of taxes owed by employee as follows: J. Mogg, $19,426; D.
Frederick, $43; M. Bradley, $3,613.
- Life insurance premiums paid by Phillips as follows: M. Panatier, $686;
R. Martinovich, $162.
EMPLOYMENT AND CONSULTING AGREEMENTS
We have entered into an employment agreement with Mr. Panatier which
provides for a term of two years from the closing of the Combination. During the
term of this employment agreement, Mr. Panatier will receive a monthly salary of
$32,000, which may be increased upon the recommendation of our Compensation
Committee. The agreement also provides for a target bonus of 60% of Mr.
Panatier's annual base salary. Mr. Panatier is entitled to participate in all
our benefit plans on the same basis as other similarly-situated executives of
our company.
Mr. Panatier will also receive annual long-term incentive awards in the
form of stock option grants with a value equal to 150% of his annual base salary
and restricted stock awards with a value equal to 70% of his annual base salary.
While the specific terms of these awards will generally be determined by our
Compensation Committee, any awards made during the initial term of this
agreement will vest on the second anniversary of the completion of the
offerings. The employment agreement also provides for a restricted stock
retention award, to be valued at 250% of his annual base salary, to be granted
on the completion of the offerings. This restricted stock award vests 50% on the
first anniversary of the effective date of the employment agreement and 50% on
the second anniversary if Mr. Panatier is employed on the vesting date.
If we terminate Mr. Panatier's employment for any reason other than death,
disability or cause or if Mr. Panatier terminates his employment for cause, all
long-term incentive awards and his restricted stock awards will immediately
vest. In addition, if a change of control of our company occurs during the
second year of the employment agreement and prior to such termination, Mr.
Panatier will also be entitled to a lump sum
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severance payment equal to 200% of his annual salary in effect at the time, plus
his target bonus and to participate in our group medical plan (unless Mr.
Panatier is eligible for coverage by a subsequent employer) for a period of two
years following such termination.
We have entered into a contract for consulting services with Mr. Slaughter
which terminates in June 2002. During the term of this contract, Mr. Slaughter
will receive a quarterly retainer of $46,860, in exchange for which Mr.
Slaughter has agreed to perform services for us for up to 30 days per quarter.
If Mr. Slaughter works more than 30 days per quarter, he is entitled to
additional compensation at the rate of $1,562 for each additional day. The
contract also provides for compensation of $360,000 to Mr. Slaughter in the form
of stock options and/or restricted stock upon the completion of the offerings.
2000 LONG-TERM INCENTIVE PLAN
General. We have adopted a Long-Term Incentive Plan. The plan allows us to
grant incentive awards to our employees and those of our subsidiaries and to
non-employee members of our Board of Directors. The plan provides for the grant
of:
- stock options (including both incentive stock options and nonqualified
stock options);
- stock appreciation rights;
- restricted stock;
- performance awards;
- phantom stock awards (i.e., awards that give the recipient the right to
receive payment, whether in stock or cash, at the end of a fixed vesting
period based on the difference between the value of our common stock at
the time of grant and the time of vesting); and
- dividend equivalents.
The purpose of the plan is to strengthen our ability to attract, motivate
and retain employees and directors and to provide an additional incentive for
employees.
Reservation of Shares. We have reserved 4,000,000 shares of common stock
for issuance under the plan, provided that no more than 400,000 shares of common
stock may be issued in connection with all awards of restricted stock,
performance awards or phantom stock under the plan. The shares of common stock
to be issued under the plan shall be made available from authorized but unissued
shares of common stock. If any shares of common stock that are the subject of an
award are not issued and cease to be issuable for any reason, such shares will
no longer be charged against such maximum share limitation and may again be made
subject to awards under the plan. In the event of certain corporate
reorganizations, recapitalizations, or other specified corporate transactions
affecting us or our common stock, proportionate adjustments may be made to the
number of shares available for grant under the plan, the applicable maximum
share limitations under the plan, and the number of shares and prices under
outstanding awards at the time of the event.
Administration. The plan will be administered by the Compensation
Committee, or such other committee or subcommittee of the Board of Directors
designates. Subject to certain limitations, the committee has the authority to
determine the persons to whom awards are granted, the types of awards to be
granted, the time at which awards will be granted, the number of shares, units
or other rights subject to each award, the exercise, base or purchase price of
an award (if any), the time or times at which the award will become vested,
exercisable or payable, and the duration of the award. The committee also has
the power to interpret the plan and make factual determinations and may provide
for the acceleration of the vesting or exercise period of an award at any time
prior to its termination or upon the occurrence of specified events.
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Change in Control. The committee may provide in an individual award
agreement for the effect of a "change in control" (as defined in the plan) upon
an award granted under the plan. Such provisions may include:
- the acceleration or extension of time periods for purposes of exercising,
vesting in, or realizing gain from an award;
- the waiver or modification of performance or other conditions related to
payment or other rights under an award;
- providing for the cash settlement of an award; or
- such other modification or adjustment to an award as the committee deems
appropriate.
Term and Amendment. The plan has a term of ten years, subject to earlier
termination or amendment by our Board of Directors. The Board of Directors may
amend the plan at any time, except that shareholder approval is required for
amendments that would change the persons eligible to participate in the plan,
increase the number of shares of common stock reserved for issuance under the
plan, allow the grant of options at an exercise price below fair market value,
or allow the repricing of options without shareholder approval.
2000 Plan Benefits. Currently, all employees are expected to be considered
by the committee for participation in the plan. The number of persons eligible
to participate in the plan and the number of grantees may vary from year to
year.
Concurrently with the offerings, options to purchase approximately 958,000
shares of our common stock at the initial public offering price are expected to
be granted to our officers and employees. Of these options, approximately
211,500 shares are expected to be granted to our Named Executive Officers. Also
concurrently with the offerings, restricted stock awards of approximately
110,500 shares are expected to be granted to our officers and employees, of
which approximately 33,000 are expected to be granted to our Named Executive
Officers.
OPTION GRANTS IN LAST FISCAL YEAR
In the fiscal year ended December 31, 1999, none of the named executive
officers received options to purchase our common stock, nor were they entitled
to exercise any such stock options. None of the named executive officers held
options to purchase our common stock at December 31, 1999.
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RELATIONSHIP WITH DUKE ENERGY AND PHILLIPS
On March 31, 2000, we combined the midstream natural gas businesses of Duke
Energy and Phillips. In connection with the Combination, Phillips transferred
all of its interest in its subsidiaries that conducted its midstream natural gas
business to Field Services LLC, our subsidiary that was formed in December 1999
to hold all of Duke Energy's gas gathering and processing business. In
connection with the Combination, Duke Energy and Phillips also transferred to
Field Services LLC the midstream natural gas assets acquired by Duke Energy or
Phillips prior to consummation of the Combination, including the Mid-Continent
gathering and processing assets of Conoco and Mitchell Energy. In addition,
concurrent with the Combination, we obtained by transfer from Duke Energy the
general partner of TEPPCO. In exchange for the asset contribution, Phillips
received 30.3% of the member interests in Field Services LLC, with Duke Energy
indirectly, through us, holding the remaining 69.7% of the outstanding member
interests. In connection with the closing of the Combination, Field Services LLC
borrowed approximately $2.8 billion and made one-time cash distributions
(including reimbursements for acquisitions) of approximately $1.5 billion to
Duke Energy and approximately $1.2 billion to Phillips.
Concurrently with the consummation of the offerings of common stock, the
subsidiary of Phillips that indirectly holds Phillips' interests in Field
Services LLC will be merged into us, and we will issue shares of our common
stock to Phillips. After the merger and completion of the offerings of common
stock, Duke Energy and Phillips together will own approximately 81.24% of our
outstanding common stock (assuming the underwriters do not exercise their
over-allotment option). The exact allocation between Duke Energy and Phillips of
shares of our common stock will be determined by the average of the closing
prices of our common stock on its first five trading days on the New York Stock
Exchange Composite Tape. Assuming that the five-day average price is the same as
the assumed initial public offering price, following the offerings, Duke Energy
will own approximately 58.7% and Phillips will own approximately 22.6% of our
outstanding common stock (assuming the underwriters do not exercise their
over-allotment option). Although the exact allocation may vary, Duke Energy
will, in all events, continue to control our company through its share ownership
and representation on our Board of Directors.
There are significant transactions and relationships between us, Duke
Energy and Phillips. For purposes of governing these ongoing relationships and
transactions, we will enter into, or continue in effect, the agreements
described below. We intend that the terms of any future transactions and
agreements between us and Duke Energy or Phillips will be at least as favorable
to us as could be obtained from third parties. We will advise our Board of
Directors in advance of any such proposed transactions or agreements with Duke
Energy or Phillips that are material to us. In evaluating these terms and
provisions, our Board of Directors will use appropriate procedures in light of
the Board's fiduciary duties. Depending on the nature and size of the particular
transaction, in any such reviews, our Board of Directors may rely on our
management's knowledge, use outside experts or consultants, secure appropriate
appraisals, refer to industry statistics or prices, or take other actions as are
appropriate under the circumstances.
TRANSACTIONS WITH DUKE ENERGY
SERVICES AGREEMENT
We have entered into a Services Agreement with Duke Energy and some of its
subsidiaries, dated as of March 14, 2000. Under this agreement, Duke Energy and
those subsidiaries will provide us with various staff and support services,
including information technology products and services, payroll, employee
benefits, corporate insurance, cash management, ad valorem taxes and shareholder
services. The above services are priced on the basis of a monthly charge.
Additionally, we may use other Duke Energy services subject to hourly rates,
including legal, internal audit, tax planning, human resources and security
departments. This agreement expires on December 31, 2000 unless renewed for an
additional 12 months by the mutual agreement of the parties. We believe that
overall charges under this agreement will not exceed charges we would have
incurred had we obtained similar services from outside sources.
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LICENSE AGREEMENT
Duke Energy has licensed to us a non-exclusive right to use the word "Duke
Energy" and its logo in identifying our businesses. This right may be terminated
by Duke Energy at its sole option any time after:
- Duke Energy's direct or indirect ownership interest in our company is
less than or equal to 35%; or
- Duke Energy no longer controls, directly or indirectly, the management
and policies of our company.
Following the receipt of Duke Energy's notice of termination, we have
agreed to amend our organizational documents and those of our subsidiaries to
remove the "Duke" name and to phase out within 180 days of the date of the
notice the use of existing signage, printed literature, sales materials and
other materials bearing a name, phrase or logo incorporating "Duke."
DUKE CAPITAL CORPORATION CREDIT AGREEMENT
Effective April 4, 2000, Field Services LLC entered into a $100 million
revolving credit agreement with Duke Capital Corporation, an indirect,
wholly-owned subsidiary of Duke Energy. The revolving credit agreement will be
used for short-term financing requirements. At April 30, 2000, there were no
amounts outstanding under this facility. The agreement terminates on May 31,
2000, and bears interest at the Bank of America prime rate.
TRANSACTIONS PRIOR TO THE COMBINATION
Transactions between Duke Energy and Phillips' midstream natural gas
business. Prior to the Combination, Duke Energy and its subsidiaries engaged in
a number of transactions with the subsidiaries of Phillips that were transferred
to us in the Combination, including GPM Gas Corporation (the "Phillips Combined
Subsidiaries"). These transactions were entered into in the ordinary course of
Duke Energy's and the Phillips Combined Subsidiaries' business and were related
to the purchase and sale of raw natural gas, residue gas and NGLs at market
prices.
Transactions between Duke Energy and the Predecessor Company. Prior to the
Combination, Duke Energy and its subsidiaries engaged in a number of
transactions with the Predecessor Company. The following is a description of
those transactions.
The Predecessor Company historically sold a portion of its residue gas and
NGLs to Duke Energy and its subsidiaries, including Duke Energy Trading and
Marketing, at contractual prices that approximated market prices. The
Predecessor Company's revenues from such sales were approximately $567.8 million
in 1997, $536.3 million in 1998 and $696.7 million in 1999. We anticipate that
we will continue to sell residue gas and NGLs to Duke Energy and its
subsidiaries (including Duke Energy Trading and Marketing) at market prices in
the ordinary course of our business.
The Predecessor Company historically purchased residue gas from Duke Energy
and its subsidiaries at contractual prices that approximated market prices. The
Predecessor Company's purchases of raw natural gas and other petroleum products
from Duke Energy and its subsidiaries totaled $48.9 million in 1997, $79.6
million in 1998 and $128.6 million in 1999. We anticipate that we will continue
to purchase residue gas and other petroleum products at market prices from Duke
Energy and its subsidiaries in the ordinary course of our business.
The Predecessor Company historically provided gathering and transportation
services over its gathering systems and pipelines to Duke Energy and its
subsidiaries at market prices. The Predecessor Company generated no revenues in
1997, $6.4 million in 1998 and $2.7 million in 1999 from the provision of such
services. We anticipate that we will continue to provide gathering and
transportation to Duke Energy and its subsidiaries at market prices in the
ordinary course of our business.
Duke Energy has historically provided the Predecessor Company with various
support services, including information technology services, accounting, legal,
insurance, payroll, cash management, risk management and welfare benefits
services. Duke Energy has historically billed the Predecessor Company for such
services
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at prices that approximate their cost to provide such services. The Predecessor
Company was charged $11.7 million in 1997, $12.1 million in 1998 and $19.1
million in 1999 for such services. Duke will continue to provide some of these
services under the terms of the Services Agreement described above.
On June 30, 1995, the Predecessor Company issued a $101.6 million note to
Duke Energy. The note is scheduled to mature in 2004 and bears interest at 8.5%.
In addition, on December 31, 1996, the Predecessor Company issued a $540 million
note to Duke Energy. The note matured at the end of each year and was extended
for subsequent one year periods at each year end. The note bears interest at
prime rate, adjusted quarterly.
TRANSACTIONS WITH PHILLIPS
TRANSITION SERVICES AGREEMENT
We have entered into a Transition Services Agreement with Phillips, dated
as of March 17, 2000. Under this agreement, Phillips will provide us with
various staff and support services, including information technology products
and services, cash management, real estate, claims and property tax services.
The above services are priced on the basis of a monthly charge equal to
Phillips' fully-burdened cost of providing the services. This agreement expires
on December 31, 2000 unless renewed by the mutual agreement by the parties on a
month-to-month basis.
TRANSACTIONS PRIOR TO THE COMBINATION
Transactions between Phillips and Duke Energy's midstream natural gas
business. Prior to the Combination, Phillips engaged in a number of transactions
with the Predecessor Company. These transactions were entered into in the
ordinary course of Phillips' and the Predecessor Company's business and were
related to the purchase and sale of raw natural gas, residue gas and NGLs at
market prices.
Transactions between Phillips and its midstream natural gas business. Prior
to the Combination, Phillips engaged in a number of transactions with GPM Gas
Corporation. The following is a description of those transactions.
GPM Gas Corporation, the subsidiary of Phillips that owned its midstream
natural gas assets that were contributed to us in the Combination, and Phillips
66 Company, a division of Phillips, entered into an NGL Output Purchase and Sale
Agreement effective as of January 1, 2000. The agreement allows Phillips 66
Company to purchase at index-based prices approximately all of the NGLs produced
by the processing plants owned by GPM Gas Corporation prior to the Combination.
The agreement also grants Phillips 66 Company the right to purchase at
index-based prices certain quantities of NGLs produced at processing plants that
are acquired and/or constructed by us in the future in various counties in the
Mid-Continent and Permian Basin regions and the Austin Chalk area. The agreement
has a 15-year primary term and a four-year phase-down period. The agreement
prohibits us from modifying our normal business practices to divert or reduce
NGLs available for purchase by Phillips 66 Company from current delivery levels.
GPM Gas Corporation historically sold a portion of its residue gas and
other by-products to Phillips at contractual prices that approximated market
prices. In addition, GPM Gas Corporation sold NGLs to Phillips at prices based
upon quoted market prices for fractionated NGLs, less transportation,
fractionation and quality-adjustment fees. GPM Gas Corporation's operating
revenues from the sale of residue gas, other by-products and NGLs to Phillips
were approximately $758.7 million in 1997, $537.5 million in 1998 and $725.5
million in 1999. We anticipate that we will continue to sell residue gas and
NGLs to Phillips and its subsidiaries or co-venturers at market prices in the
ordinary course of our business, including in connection with our long term
contract with Phillips described above.
The Phillips Combined Subsidiaries historically purchased raw natural gas
from Phillips at contractual prices that approximated market prices. The
Phillips Combined Subsidiaries' purchases of raw natural gas from Phillips
totaled $118.8 million in 1997, $76.6 million in 1998 and $100.3 million in
1999. We anticipate that we will continue to purchase raw natural gas from
Phillips at market prices in the ordinary course of our business.
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Phillips historically provided the Phillips Combined Subsidiaries with
various field services and other general administrative services including
insurance, personnel administration, employee benefits, office space,
communications, data processing, engineering, automotive and other field
equipment, and other miscellaneous services, including legal, treasury,
planning, tax, auditing and other corporate services. These services were priced
to reimburse Phillips for its actual costs to provide the services. Charges for
these services and benefits were $12.1 million in 1997, $12.1 million in 1998
and $11.4 million in 1999. These services were terminated upon consummation of
the Combination.
Phillips 66 Company, a division of Phillips, has historically purchased
sulfur from GPM Gas Corporation under an agreement for sulfur sales that is
renewed annually. Phillips 66 Company's purchases of sulfur from GPM Gas
Corporation totaled $446,000 in 1997, $412,000 in 1998 and $1.1 million in 1999.
Phillips 66 Company will continue to purchase sulfur from GPM Gas Corporation
under the terms of the agreement currently in effect.
Prior to the Combination, all operational and personnel requirements of the
Phillips Combined Subsidiaries were met by Phillips' employees. All services
provided by Phillips were priced to cover the actual costs of these services,
which equaled $76.6 million in 1997, $74.8 million in 1998 and $74.9 million in
1999. These services were terminated when we hired most of the employees of the
Phillip Combined Subsidiaries.
The Phillips Combined Subsidiaries earned interest of $2.7 million in 1997,
$2.4 million in 1998 and $2.5 million in 1999 from participation in Phillips'
centralized cash management system. Participation in the system was terminated
upon the completion of the Combination.
Phillips Gas Company had long-term borrowings from Phillips and other
liabilities outstanding to Phillips of $655.0 million at the end of 1997, $560.0
million at the end of 1998 and $1,350.0 million at the end of 1999. Phillips Gas
Company incurred interest expense of $20.3 million in 1997, $35.9 million in
1998 and $35.6 million in 1999 on these borrowings. Included in the $1,350.0
million of borrowings outstanding at the end of 1999 is a $780.0 million
dividend from Phillips Gas Company to Phillips in the form of a note payable.
These borrowings from Phillips were paid at the closing of the Combination.
The Phillips Combined Subsidiaries historically provided Phillips with
other minor administrative services. Costs allocated to Phillips for these
services were $120,000 in 1997, $79,000 in 1998 and $72,000 in 1999. These
services were terminated upon the consummation of the Combination.
The Phillips Combined Subsidiaries periodically bought from, or sold to,
Phillips various assets in the operation of its business. These net acquisitions
totaled $22,000 in 1997, $60,000 in 1998 and $239,000 in 1999.
SHAREHOLDERS AGREEMENT
Immediately prior to the consummation of the offerings, Duke Energy Natural
Gas Corporation, the subsidiary of Duke Energy that will hold all of Duke
Energy's shares of our common stock, and Phillips will enter into a shareholders
agreement covering the matters discussed below. The shareholders agreement will
terminate on the first date that either of Duke Energy or Phillips owns less
than 20% of our outstanding common stock. Duke Energy and Phillips have agreed
to cause each of their subsidiaries that hold shares of our common stock to
execute the shareholders agreement and to comply with the obligations of the
parties to the shareholders agreement.
ELECTION OF DIRECTORS
Each of Duke Energy and Phillips will agree to vote its shares of common
stock to elect seven directors designated by Duke Energy, so long as Duke Energy
owns at least 30% of our outstanding common stock, and four directors designated
by Phillips, so long as Phillips owns at least 20% of our outstanding common
stock. If Duke Energy owns less than 30% but at least 20% of our outstanding
common stock, the number of Duke Energy designees elected will be
proportionately reduced and the number of Phillips designees elected will be
proportionately increased. The shareholders agreement requires that Duke Energy
and Phillips together include in their director designees a total of three
individuals who are not officers, directors or employees of
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Duke Energy, Phillips or any of their affiliates. Initially, Duke Energy will
designate two of these independent directors, and Phillips will designate one.
In addition, each of Duke Energy and Phillips have agreed to vote to remove any
director designee of the other upon the request of the other at any time with or
without cause.
SPECIAL BUYOUT RIGHT
After the first anniversary of the completion of the offerings, Duke Energy
will have the right to acquire all (but not less than all) of the common stock
owned by Phillips at an appraised fair market value of such shares if, on three
separate occasions within 18 months, certain specified actions (which are
described in the first five bullet points under "Description of Capital
Stock -- Supermajority Requirements") have failed to receive the approval of our
Board of Directors. Duke Energy will be entitled to exercise this right only if
each of its designated directors and none of Phillips' designated directors
voted in favor of such actions.
RIGHT OF FIRST REFUSAL
If Duke Energy or Phillips desires to sell all or any portion of its shares
of our common stock (other than in connection with a registered public
offering), the non-selling party will have a right of first refusal to purchase
all (but not less than all) of the shares that the selling party desires to
transfer, on the same terms and conditions as those set forth in the notice of
the proposed transfer.
CHANGE OF CONTROL
If Duke Energy or Phillips or any of their affiliates which hold our common
stock undergoes a specified type of change of control, the other party will have
the right to purchase the shares in our company owned by the entity experiencing
the change of control at an appraised fair market value of such shares.
REGISTRATION RIGHTS AGREEMENT
Upon completion of the offerings, we will enter into a registration rights
agreement with Duke Energy and Phillips. This agreement will give each of Duke
Energy and Phillips the right, on two occasions, to demand that we register all
or any portion of their shares of our common stock for sale under the Securities
Act. However, any demand to register shares must cover at least 3% of the common
stock then outstanding. Further, if we propose to register any of our common
stock under the Securities Act, Duke Energy and Phillips will have the right to
include their shares of common stock in the registration subject to certain
limitations. Despite a registration demand by either Duke Energy or Phillips, we
may delay registering their shares of our common stock for a reasonable time not
to exceed 180 days if, in the judgment of our Board, filing the registration
would require the disclosure of pending or contemplated matters or information
which would:
- likely be detrimental to our company;
- materially interfere with our business; or
- materially interfere with a pending or contemplated material transaction.
We have agreed to cooperate fully in connection with any such registration
and with any offering made in connection with such registration. In addition, we
have agreed to pay all costs and expenses (other than fees, discounts and
commissions of underwriters, brokers and dealers; capital gains, income and
transfer taxes (if any); and the fees and disbursements of counsel to Duke
Energy or Phillips) related to the registration and sale of shares of our common
stock by Duke Energy or Phillips in any registered offering. The rights of Duke
Energy and Phillips under the registration rights agreement are assignable under
certain circumstances. The rights of each of Duke Energy and Phillips under the
registration rights agreement terminate at any time when they and their
affiliates own less than 10% of our outstanding common stock.
CONFLICTS OF INTEREST
Generally, directors and officers have a fiduciary duty to manage their
company in a manner beneficial to the company and its stockholders. The majority
of our directors and officers are either current or former
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directors or officers of Duke Energy or Phillips, and four of our officers or
directors are directors of the general partner of TEPPCO. In certain
circumstances, an action beneficial to Duke Energy, Phillips or TEPPCO may be
detrimental to our interests. Given certain shared directors and officers these
circumstances may create conflicts of interest. Additionally, our extensive
relationships with Duke Energy and Phillips also may result in conflicts of
interest.
In order to mitigate potential conflicts of interest, as long as Duke
Energy and Phillips each own at least 20% of our voting stock, any future
transactions between our company and Duke Energy, Phillips or any of their
affiliates, which are on terms that are clearly less favorable terms than those
that are within the range of comparable transactions between unaffiliated third
parties, must be approved by 8 of our 11 directors.
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PRINCIPAL STOCKHOLDERS
The following table sets forth information regarding the beneficial
ownership of our common stock, by:
- each holder of more than 5% of our common stock;
- our Chief Executive Officer and each of our next five most highly
compensated executive officers;
- each director and director nominee; and
- all directors, director nominees and executive officers as a group.
The exact allocation of shares of common stock between Duke Energy and Phillips
will be determined based on the average of the closing prices of our common
stock on the New York Stock Exchange Composite Tape on its first five trading
days. For purposes of the table set forth below the number of shares of common
stock to be beneficially owned by each of Duke Energy and Phillips has been
estimated based upon an assumed initial public offering price of $21.00. Unless
otherwise stated in the notes to the table, each of the stockholders has sole
voting and investment power with respect to the shares of common stock
beneficially owned by him. The table below does not include the approximate
110,500 shares of common stock that are expected to be issued concurrently with
the offerings under restricted stock grants.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP
---------------------------------
PERCENTAGE
-------------------
BEFORE AFTER
NAME OF BENEFICIAL OWNERS SHARES OFFERING OFFERING
- ------------------------- ----------- -------- --------
<S> <C> <C> <C>
Duke Energy Corporation..................................... 82,545,786 72.19% 58.65%
526 South Church Street
Charlotte, North Carolina 28201-1006
Phillips Petroleum Company.................................. 31,795,924 27.81 22.59
Phillips Building
Bartlesville, Oklahoma 74004
Jim W. Mogg................................................. -- -- --
Michael J. Panatier......................................... -- -- --
Mark A. Borer............................................... -- -- --
Michael J. Bradley.......................................... -- -- --
David D. Frederick.......................................... -- -- --
Robert F. Martinovich....................................... -- -- --
Ruth G. Shaw................................................ -- -- --
William W. Slaughter........................................ -- -- --
Martha B. Wyrsch............................................ -- -- --
Milton Carroll.............................................. -- -- --
Fred J. Fowler.............................................. -- -- --
William H. Grigg............................................ -- -- --
John E. Lowe................................................ -- -- --
J.J. Mulva(1)............................................... 31,795,924 27.81 22.59
Wayne W. Murdy.............................................. -- -- --
Richard B. Priory(2)........................................ 82,545,786 72.19 58.65
C.J. Silas.................................................. -- -- --
All directors, director nominees and executive officers as a
group (17 persons)(1)(2).................................. 114,341,710 100% 81.24%
</TABLE>
- ---------------
(1) The shares are owned directly by Phillips. Mr. Mulva serves as Chairman of
the Board, President and Chief Executive Officer of Phillips. As such, Mr.
Mulva may be deemed to have voting and dispositive power over the shares
beneficially owned by Phillips. Mr. Mulva disclaims beneficial ownership of
the securities owned by Phillips.
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(2) The shares are owned directly by Duke Energy. Mr. Priory serves as Chairman,
President and Chief Executive Officer of Duke Energy. As such, Mr. Priory
may be deemed to have voting and dispositive power over the shares
beneficially owned by Duke Energy. Mr. Priory disclaims beneficial ownership
of the securities owned by Duke Energy.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 500,000,000 shares of common
stock, par value $.01 per share, and 10,000,000 shares of preferred stock, par
value $.01 per share.
COMMON STOCK
Following the offerings, 140,752,210 shares of common stock will be issued
and outstanding. Holders of our common stock are entitled to one vote per share
on all matters to be voted upon by the stockholders. Holders of common stock do
not have cumulative voting rights. As a result, the holders of a majority of the
shares of our common stock can elect all of the members of the Board of
Directors, subject to the rights, powers and preferences of any outstanding
series of preferred stock. Subject to preferences of any preferred stock that
may be issued, the holders of our common stock are entitled to receive such
dividends as may be declared by the Board of Directors. The common stock is
entitled to receive pro rata all of our assets available for distribution to our
stockholders in liquidation, subject to the rights and preferences of any
outstanding series of preferred stock. There are no redemption or sinking fund
provisions applicable to the common stock. All outstanding shares of common
stock are fully paid and non-assessable.
PREFERRED STOCK
Subject to the provisions of the certificate of incorporation and
limitations prescribed by law, our Board of Directors has the authority to issue
up to 10,000,000 shares of preferred stock in one or more series and to fix the
rights, preferences, privileges and restrictions thereof, including dividend
rights and rates, conversion rates, voting rights, redemption terms and prices,
liquidation preferences and the number of shares constituting any series or the
designation of such series, which may be superior to those of the common stock,
without further vote or action by the stockholders.
The issuance of shares of preferred stock under the Board of Directors'
authority described above may adversely affect the rights of the holders of our
common stock. For example, preferred stock may rank prior to the common stock
with respect to dividend rights, liquidation preference or both, may have full
or limited voting rights and may be convertible into shares of common stock.
Accordingly, the issuance of shares of preferred stock may discourage bids for
our common stock or may otherwise adversely affect the market price of our
common stock. In addition, the preferred stock may enable our Board of Directors
to render more difficult or to discourage attempts by others to obtain control
of our company through a tender offer, proxy contest, merger or otherwise.
ANTI-DILUTION RIGHTS
If we sell shares of our common stock or shares of any other previously
issued and outstanding capital stock in a public offering (other than in
connection with an employee compensation or benefit plan or program approved by
our Board of Directors in accordance with our bylaws), our certificate of
incorporation provides that Duke Energy and Phillips each have the right to
purchase the amount of the offering necessary to maintain their ownership
percentages in that class of securities. In order to exercise this right, Duke
Energy or Phillips must each own, directly or indirectly, at least 20% of all
outstanding shares of our common stock. So long as Duke and Phillips each own at
least 20% of all outstanding common stock, any proposed amendment to these
rights requires the consent of both Duke and Phillips.
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ANTI-TAKEOVER PROVISIONS OF OUR CERTIFICATE OF INCORPORATION AND BYLAWS
Our certificate of incorporation and bylaws contain several provisions that
could delay or make more difficult the acquisition of us through a hostile
tender offer, open market purchases, proxy contest, merger or otherwise.
WRITTEN CONSENT OF STOCKHOLDERS
Our certificate of incorporation provides that, on and after the date when
Duke Energy ceases to own (directly or indirectly) a majority of the shares of
our outstanding securities entitled to vote in the election of directors, any
action by our stockholders must be taken at an annual or special meeting of
stockholders. Until that date, any action required or permitted to be taken by
our stockholders may be taken at a duly called meeting of stockholders or by the
written consent of stockholders owning the minimum number of shares required to
approve the action.
SPECIAL MEETINGS OF STOCKHOLDERS
Subject to the rights of the holders of any series of preferred stock
approved by our Board of Directors, our by-laws provide that special meetings of
the stockholders may only be called by the Chairman of the Board of Directors or
by the resolution of a majority of our Board of Directors.
ADVANCE NOTICE PROCEDURE FOR DIRECTOR NOMINATIONS AND STOCKHOLDER PROPOSALS
Our bylaws establish advance notice procedures for the nomination of
candidates for election as directors as well as for stockholder proposals to be
considered at annual meetings of stockholders. Notice of a stockholder's intent
to nominate a director must be received at our principal executive offices as
follows:
- with respect to an election to be held at the annual meeting of
stockholders, not later than 90 calendar days nor earlier than 120
calendar days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; and
- with respect to an election to be held at a special meeting of
stockholders, not later than the later of:
(1) 90 calendar days prior to the special meeting or
(2) 10 calendar days following the public announcement of the special
meeting, nor earlier than 120 calendar days before the special meeting.
Notice of a stockholder's intent to raise business at an annual meeting
must be received at our principal executive offices not later than 90 calendar
days nor earlier than 120 calendar days prior to the anniversary date of the
preceding annual meeting of stockholders.
These procedures may operate to limit the ability of stockholders to bring
business before a stockholders meeting, including the nomination of directors or
considering any transaction that could result in a change in control.
LIMITATION OF BUSINESS OPPORTUNITIES
We have added provisions to our certificate of incorporation that limit the
scope of our business and provide that Duke Energy and its affiliates may engage
in the midstream gas gathering, processing, marketing and transportation
businesses, even if those businesses have a competitive impact on us. In
general, Duke Energy is permitted to engage in any business, including
businesses in competition with us, provided:
- the business opportunity is not identified through the disclosure of
information by or on behalf of our company or as a direct result of a
person's service as an officer or director of our company; and
- the business is developed and pursued solely through Duke Energy's own
personnel and not through us.
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If an opportunity in the midstream natural gas gathering, processing,
marketing and transportation industry is presented to a person who is an officer
or director of both Duke Energy and our company, Duke Energy has no obligation
to communicate or offer the opportunity to us and may pursue the opportunity as
it sees fit, unless it was presented to that person solely in, and as a direct
result of, that person's service as a director or officer of our company.
The purpose clause of our certificate of incorporation permits us to engage
only in the midstream natural gas gathering, processing, marketing and
transportation businesses in the United States and Canada and the marketing of
NGLs in Mexico. We may engage in other activities with the approval of eight of
the eleven members of our Board and, so long as Duke Energy owns, directly or
indirectly, a majority of our common stock or otherwise controls our company,
the approval of Duke Energy in its sole discretion. We cannot amend our
certificate of incorporation to expand our purpose clause without Duke Energy's
prior written consent.
AMENDMENT OF THE BYLAWS
Our certificate of incorporation and bylaws provide that the Board of
Directors may amend or repeal the bylaws and adopt new bylaws. Our bylaws
provide that the holders of common stock may amend or repeal the bylaws and
adopt new bylaws by a majority vote. However, so long as each of Duke Energy and
Phillips owns (directly or indirectly) at least 20% of our voting stock, any
amendment or repeal of, or adoption of any new bylaw inconsistent with, certain
of our bylaws relating to our Board of Directors (including supermajority
approval requirements) and the amendment of certain of our bylaws must be
approved by each of Duke Energy and Phillips.
LIMITATION OF LIABILITY OF OFFICERS AND DIRECTORS
Our certificate of incorporation provides that no director shall be
personally liable to our company or our stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability as follows:
- for any breach of the director's duty of loyalty to our company or our
stockholders;
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- for unlawful payment of a dividend or unlawful stock purchase or
redemption; and
- for any transaction from which the director derived an improper personal
benefit.
These provisions eliminate the rights of our company and our stockholders,
through stockholders' derivative suits on our behalf, to recover monetary
damages against a director for breach of fiduciary duty as a director, including
breaches resulting from grossly negligent behavior, except in the situations
described above.
DELAWARE ANTI-TAKEOVER STATUTE
Under the terms of our certificate of incorporation and as permitted under
Delaware law, we have elected not to be governed by Delaware's anti-takeover
law. This law provides that specified persons who, together with affiliates and
associates, own, or within three years did own, 15% or more of the outstanding
voting stock of a corporation may not engage in certain business combinations
with the corporation for a period of three years after the date on which the
person became an interested stockholder. The law defines the term "business
combination" to encompass a wide variety of transactions with or caused by an
interested stockholder, including mergers, asset sales and other transactions in
which the interested stockholder receives or could receive a benefit on other
than a pro rata basis with other stockholders. With the approval of our
stockholders, we may amend our certificate of incorporation in the future to
become governed by the anti-takeover law. This provision would then have an
anti-takeover effect for transactions not approved in advance by our Board of
Directors, including discouraging takeover attempts that might result in a
premium over the market price for the shares of our common stock. By opting out
of the Delaware anti-takeover law, a transferee of Duke Energy or Phillips could
pursue a takeover transaction that was not approved by our Board of Directors.
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SUPERMAJORITY REQUIREMENTS
Our bylaws require the approval of at least eight of the eleven directors
elected by Duke Energy and Phillips for any of the following:
- entering a new line of business outside of the midstream natural gas
gathering, processing, marketing and transportation businesses (and
directly related activities) in the United States and Canada;
- approval of any merger, consolidation, recapitalization, acquisition,
divestiture, joint venture or alliance (or a related series of such
transactions) involving the acquisition or expenditure (in the form of
cash or otherwise) of more than $200 million in value to or from the
company;
- entering into any sales contract or commitment that has a term of five
years or more and that involves annual revenues to the company of more
than 5% of the company's total annual sales revenues for the most
recently completed fiscal year;
- any capital expenditure in excess of $200 million;
- any borrowing in excess of $200 million;
- approval of any shut-down of a facility having a fair market value of
more than $100 million;
- any liquidation or dissolution of the company;
- changing auditors;
- settlement of actions or claims against us involving payment by us of
more than $25 million, excluding amounts covered or reimbursed by
insurance;
- entering into transactions with either Duke Energy, Phillips or any of
their affiliates on terms that are clearly less favorable than those
terms that are within the range of comparable transactions between
unaffiliated third parties; and
- approval of compensation policies for employees, including specific
compensation and benefit plans and programs, to the extent such policies
are of the type that would customarily be considered by a compensation
committee of the board of directors of a comparably sized,
publicly-traded corporation.
As long as each of Duke Energy and Phillips owns (directly or indirectly) at
least 20% of our voting stock, these provisions of the bylaws may not be amended
or changed without the consent of both Duke Energy and Phillips. The
requirements of super-majority approval for these actions will terminate when
the ownership interest of either Duke Energy or Phillips falls below 20%.
Since the governance procedures described above require more than a
majority vote of the Board of Directors to approve a merger or consolidation,
this may make any merger or consolidation more difficult.
LIST
We have filed an application for our common stock to be quoted on the New
York Stock Exchange under the symbol "DEF."
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for our common stock is Duke Energy.
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SHARES ELIGIBLE FOR FUTURE SALE
Prior to the offerings, there was no public market for our common stock.
Future sales of substantial amounts of our common stock in the public market
could adversely affect the market price of our common stock. After the offerings
is completed, the number of shares available for future sale into the public
markets will be subject to legal and contractual restrictions, some of which are
described below. The lapsing of these restrictions will permit sales of
substantial amounts of our common stock in the public market or could create the
perception that such sales could occur, which could adversely affect the market
price for our common stock. These factors could also make it more difficult for
us to raise funds through the future offering of common stock.
After the offerings, 140,752,211 shares of our common stock will be
outstanding. Of these shares, the 26,300,000 shares sold in the offering will be
freely transferable and may be sold without restriction or further registration
under the Securities Act, except for any shares acquired by our "affiliates" as
defined in Rule 144 under the Securities Act. The remaining 114,341,711 shares
of common stock outstanding and owned by Duke Energy and Phillips will be
subject to the lock-up agreements described below for 180 days after which they
may be sold in the future without registration under the Securities Act to the
extent permitted by Rule 144, as described below, or any applicable exemption
under the Securities Act. In addition, shares owned by Duke Energy and Phillips
may be registered for sale under the Securities Act under the terms of the
registration rights agreement with us.
RULE 144
Under Rule 144 beginning 90 days after the date of this prospectus, a
person, or persons whose shares are aggregated, who has beneficially owned
"restricted securities" for at least one year would be entitled to sell within
any three-month period a number of shares that does not exceed the greater of:
- 1% of the number of shares of common stock then outstanding, which will
equal approximately 1,408,000 shares immediately after the offering; and
- the average weekly trading volume of the common stock on the New York
Stock Exchange during the four calendar weeks preceding the filing of a
notice on Form 144 with respect to such sale with the SEC.
Sales under Rule 144 are also subject to certain other requirements regarding
the manner of sale, notice and availability of current public information about
us.
Under Rule 144(k), a person who is not deemed to have been one of our
"affiliates" at any time during the 90 days preceding a sale, and who has
beneficially owned the shares proposed to be sold for at least two years
(including the holding period of any prior owner other than an affiliate) is
entitled to sell such shares without complying with the manner of sale, public
information, volume limitation or notice provisions of Rule 144.
Because Duke Energy and Phillips are among our affiliates, subject to
exercise of their registration rights described under "Relationship with Duke
Energy and Phillips -- Registration Rights Agreement," the Rule 144 restrictions
and requirements would be applicable to Duke Energy's and Phillips' shares for
as long as they retain affiliate status.
LOCK-UP AGREEMENTS
In connection with the offerings, we, Duke Energy and Phillips have agreed
not to directly or indirectly engage in the following activities for a period of
180 days after the date of this prospectus without the prior written consent of
Morgan Stanley & Co. Incorporated:
- offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise dispose of, directly or
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indirectly, any shares of common stock or securities convertible into or
exchangeable or exercisable for common stock; or
- enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequence of ownership of common
stock whether any such swap or transaction is to be settled by delivery
of common stock or other securities, in cash or otherwise.
As exceptions to these restrictions, we may:
- issue shares of our common stock or grant options to purchase shares of
common stock in connection with our existing employee benefit plans;
- issue shares of our common stock in connection with any non-employee
director stock plan; and
- issue shares of our common stock or securities convertible or
exchangeable into our common stock as payment of any part of the purchase
price for businesses or assets we acquire; however, shares issued in this
manner may not be transferred during the 180-day lock-up period.
2000 LONG-TERM INCENTIVE PLAN
After the offerings, we intend to file a registration statement covering
the sale of approximately 4,000,000 shares of common stock reserved for issuance
under our long-term incentive plan thus permitting resale of these shares by
non-affiliates in the public market without restriction.
MATERIAL UNITED STATES FEDERAL TAX CONSEQUENCES
TO NON-UNITED STATES HOLDERS OF COMMON STOCK
The following is a general discussion of the material U.S. federal income
and estate tax considerations with respect to the ownership and disposition of
common stock applicable to Non-U.S. Holders. In general, a "Non-U.S. Holder" is
any beneficial owner of common stock other than
- a citizen or resident of the United States,
- a corporation, partnership or other entity created or organized in the
United States or under the laws of the United States or of any state
thereof,
- an estate, the income of which is includible in gross income for U.S.
federal income tax purposes regardless of its source, or
- a trust whose administration is subject to the primary supervision of a
United States court and which has one or more United States persons who
have the authority to control all substantial decisions of the trust.
This discussion is based on current provisions of the Internal Revenue
Code, Treasury Regulations promulgated under the Internal Revenue Code, judicial
opinions, published positions of the Internal Revenue Service, and all other
applicable authorities, all of which are subject to change, possibly with
retroactive effect. This discussion does not address all aspects of income and
estate taxation or any aspects of state, local, or non-U.S. taxes, nor does it
consider any specific facts or circumstances that may apply to a particular
Non-U.S. Holder that may be subject to special treatment under the U.S. federal
income tax laws, such as insurance companies, tax-exempt organizations,
financial institutions, brokers, dealers in securities, and U.S. expatriates.
Prospective investors are urged to consult their tax advisors regarding the
U.S. federal, state, local and non-U.S. income and other tax considerations of
acquiring, holding and disposing of shares of common stock.
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DIVIDENDS
In general, dividends paid to a Non-U.S. Holder will be subject to U.S.
withholding tax at a 30% rate of the gross amount, or a lower rate prescribed by
an applicable income tax treaty, unless the dividends are effectively connected
with a trade or business carried on by the Non-U.S. Holder within the United
States. Dividends that are effectively connected with such a U.S. trade or
business generally will not be subject to U.S. withholding tax if the Non-U.S.
Holder files the required forms, including Internal Revenue Service Form 4224,
Form W-8ECI, or any successor form, with the payor of the dividend, and
generally will be subject to U.S. federal income tax on a net income basis, in
the same manner as if the Non-U.S. Holder were a resident of the United States.
An applicable treaty may also require the dividends to be attributable to a
permanent establishment in the United States to be subject to United States
taxes. A Non-U.S. Holder that is a corporation may be subject to an additional
branch profits tax at a rate of 30%, or such lower rate as may be specified by
an applicable income tax treaty, on the repatriation from the United States of
its "effectively connected earnings and profits," subject to adjustments. To
determine the applicability of a tax treaty providing for a lower rate of
withholding under the currently effective Treasury Regulations, dividends paid
to an address in a foreign country are presumed to be paid to a resident of that
country absent knowledge to the contrary. Under Treasury Regulations (the "Final
Regulations") generally effective for payments made after December 31, 2000,
however, a Non-U.S. Holder will be required to satisfy certification
requirements in order to claim a reduced rate of withholding under an applicable
income tax treaty. In addition, under the Final Regulations, in the case of
common stock held by a foreign partnership, the certification requirement would
generally be applied to the partners of the partnership (unless the partnership
agrees to become a "withholding foreign partnership") and the partnership would
be required to provide certain information. The Final Regulations also provide
"look-through" rules for tiered partnerships.
A Non-U.S. Holder of common stock that is eligible for a reduced rate of
U.S. federal income tax withholding under a tax treaty may obtain a refund of
any excess amounts withheld by filing an appropriate claim for refund with the
Internal Revenue Service.
GAIN ON SALE OR OTHER DISPOSITION OF COMMON STOCK
In general, a Non-U.S. Holder will not be subject to U.S. federal income
tax on any gain realized upon the sale or other taxable disposition of the
holder's shares of common stock so long as:
- the gain is not effectively connected with a trade or business carried on
by the Non-U.S. Holder within the United States;
- if the Non-U.S. Holder is an individual, the Non-U.S. Holder holds shares
of common stock as a capital asset, is not present in the United States
for 183 days or more in the taxable year of disposition or does not have
a "tax home" in the United States for U.S. federal income tax purposes
and meets certain other requirements;
- the Non-U.S. Holder is not subject to tax under the provisions of the
Internal Revenue Code regarding the taxation of U.S. expatriates; and
- the common stock continues to be "regularly traded on an established
securities market" for U.S. federal income tax purposes and the Non-U.S.
Holder has not held, directly or indirectly, at any time during the
five-year period ending on the date of disposition (or, if shorter, the
Non-U.S. Holder's holding period) more than five percent of the
outstanding common stock.
ESTATE TAX
Common stock owned or treated as owned by an individual who is not a
citizen or resident, as defined for U.S. federal estate tax purposes, of the
United States at the time of death will be includible in the individual's gross
estate for U.S. federal estate tax purposes, unless an applicable estate tax
treaty provided otherwise, and therefore may be subject to U.S. federal estate
tax.
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BACKUP WITHHOLDING, INFORMATION REPORTING AND OTHER REPORTING REQUIREMENTS
We must report annually to the Internal Revenue Service and to each
Non-U.S. Holder the amount of dividends paid to, and the tax withheld with
respect to, each Non-U.S. Holder. These reporting requirements apply regardless
of whether withholding was reduced or eliminated by an applicable tax treaty.
Copies of this information also may be made available under the provisions of a
specific treaty or agreement with the tax authorities in the country in which
the Non-U.S. Holder resides or is established.
Under current law, U.S. backup withholding tax (which generally is imposed
at the rate of 31% on applicable payments to persons that fail to furnish the
information required under the U.S. information reporting requirements) and
information reporting requirements generally will not apply to dividends paid on
common stock to a Non-U.S. Holder at an address outside the United States.
Backup withholding and information reporting generally will apply, however, to
dividends paid on shares of common stock to a Non-U.S. Holder at an address in
the United States if the holder fails to establish an exemption or to provide
certification of its non-U.S. status and other required information to the
payor.
Under current law, the payments of proceeds from the disposition of common
stock to or through a U.S. office of a broker will be subject to information
reporting and backup withholding, unless the beneficial owner, under penalties
of perjury, certifies, among other things, its status as a Non-U.S. Holder or
otherwise establishes an exemption. The payment of proceeds from the disposition
of common stock to or through a non-U.S. office of a broker generally will not
be subject to backup withholding and information reporting, except as noted
below. In the case of proceeds from a disposition of common stock paid to or
through a non-U.S. office of a broker that is
- a U.S. person,
- a "controlled foreign corporation" for U.S. federal income tax purposes,
or
- a foreign person 50% or more of whose gross income from a specified
period is effectively connected with a U.S. trade or business,
information reporting, but not backup withholding, will apply unless the broker
has documentary evidence in its files that the owner is a Non-U.S. Holder and
other conditions are satisfied, or the beneficial owner otherwise establishes an
exemption, and the broker has no actual knowledge to the contrary.
Under the Final Regulations, the payment of dividends or the payment of
proceeds from the disposition of common stock to a Non-U.S. Holder may be
subject to information reporting and backup withholding unless the recipient
satisfies the certification requirements of the Final Regulations by proving its
non-U.S. status or otherwise establishes an exemption. Under the Final
Regulations, the sale of common stock outside of the U.S. through a non-U.S.
broker will also be subject to information reporting if the broker is a foreign
partnership and at any time during its tax year:
- one or more of its partners are United States persons, as described in
United States Treasury regulations, who in the aggregate hold more than
50% of the income or capital interests in the partnership, or
- the foreign partnership is engaged in a U.S. trade or business.
Backup withholding is not an additional tax. Any amounts withheld under the
backup withholding rules from a payment to a Non-U.S. Holder can be refunded or
credited against the Non-U.S. Holder's U.S. federal income tax liability, if
any, provided that the required information is furnished to the Internal Revenue
Service in a timely manner.
Each prospective Non-U.S. Holder of common stock should consult that
holder's own tax adviser with respect to the federal, state, local and foreign
tax consequences of the acquisition, ownership and disposition of common stock.
81
<PAGE> 84
UNDERWRITERS
GENERAL
Under the terms and subject to the conditions contained in an underwriting
agreement dated the date of this prospectus the U.S. underwriters named below,
for whom Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Banc of America Securities LLC, Lehman Brothers Inc., J.P.
Morgan Securities Inc., PaineWebber Incorporated and Petrie Parkman & Co. are
acting as U.S. representatives, and the international underwriters named below
for whom Morgan Stanley & Co. International Limited and Merrill Lynch
International are acting as international representatives, have severally agreed
to purchase, and Duke Energy Field Services Corporation has agreed to sell to
them, severally, the number of shares indicated below:
<TABLE>
<CAPTION>
NUMBER OF
NAME SHARES
- ---- ---------
<S> <C>
U.S. Underwriters:
Morgan Stanley & Co. Incorporated......................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated..............................
Banc of America Securities LLC ........................
Lehman Brothers Inc. ..................................
J.P. Morgan Securities Inc. ...........................
PaineWebber Incorporated...............................
Petrie Parkman & Co. ..................................
--------
Subtotal...............................................
========
International Underwriters:
Morgan Stanley & Co. International Limited.............
Merrill Lynch International............................
--------
Subtotal...............................................
Total..............................................
========
</TABLE>
The U.S. underwriters and the international underwriters, and the U.S.
representatives and the international representatives, are collectively referred
to as the "underwriters" and the "representatives," respectively. The
underwriters are offering the shares of common stock subject to their acceptance
of the shares from Duke Energy Field Services Corporation and subject to prior
sale. The underwriting agreement provides that the obligations of the several
underwriters to pay for and accept delivery of the shares of common stock
offered by this prospectus are subject to the approval of certain legal matters
by their counsel and to certain other conditions. The underwriters are obligated
to take and pay for all of the shares of common stock offered by this prospectus
if any such shares are taken. However, the underwriters are not required to take
or pay for the shares covered by the underwriters over-allotment option
described below.
In the agreement between U.S. and international underwriters, sales may be
made between U.S. underwriters and international underwriters of any number of
shares as may be mutually agreed. The per share price of any shares sold by the
underwriters shall be the public offering price listed on the cover page of this
prospectus, in United States dollars, less an amount not greater than the per
share amount of the concession to dealers described below.
The underwriters initially propose to offer part of the shares of common
stock directly to the public at the public offering price listed on the cover
page of this prospectus and part to certain dealers at a price that represents a
concession not in excess of $ a share under the public offering price. Any
underwriter may allow, and such dealers may reallow, a concession not in excess
of $ a share to other underwriters or to certain dealers. After the initial
offering of the shares of common stock, the offering price and other selling
terms may from time to time be varied by the representatives.
82
<PAGE> 85
Duke Energy Field Services Corporation has granted to the U.S. underwriters
an option, exercisable for 30 calendar days from the date of this prospectus, to
purchase up to an aggregate of 3,945,000 additional shares of common stock at
the public offering price listed on the cover page of this prospectus, less
underwriting discounts and commissions. The U.S. underwriters may exercise this
option solely for the purpose of covering over-allotments, if any, made in
connection with the offering of the shares of common stock offered by this
prospectus. To the extent the option is exercised, each U.S. underwriter will
become obligated, subject to certain conditions, to purchase about the same
percentage of the additional shares of common stock as the number listed next to
the U.S. underwriter's name in the preceding table bears to the total number of
shares of common stock listed next to the names of all U.S. underwriters in the
preceding table. If the U.S. underwriters' option is exercised in full, the
total price to the public would be $635.1 million, the total underwriters'
discounts and commissions would be $33.3 million and proceeds to Duke Energy
Field Services Corporation would be $601.7 million.
The underwriters have informed Duke Energy Field Services Corporation that
they do not intend sales to discretionary accounts to exceed five percent of the
total number of shares of common stock offered by them.
We have filed a listing application for our common stock with the NYSE
under the symbol "DEF."
Each of Duke Energy Field Services Corporation and our directors, executive
officers and certain of our stockholders has agreed that, without the prior
written consent of Morgan Stanley & Co. Incorporated on behalf of the
underwriters, it will not, during the period ending 180 days after the date of
this prospectus:
- offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of
directly or indirectly, any shares of common stock or any securities
convertible into or exercisable or exchangeable for common stock; or
- enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the
common stock.
whether any transaction described above is to be settled by delivery of common
stock or such other securities, in cash or otherwise.
The restrictions described in this paragraph do not apply to:
- the sale of shares to the underwriters;
- the issuance by Duke Energy Field Services Corporation of shares of
common stock upon the exercise of an option or a warrant or the
conversion of a security outstanding on the date of this prospectus of
which the underwriters have been advised in writing; or
- transactions by any person other than Duke Energy Field Services
Corporation relating to shares of common stock or other securities
acquired in open market transactions after the completion of the offering
of the shares.
In order to facilitate the offering of the common stock, the underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of the common stock. Specifically, the underwriters may over-allot in
connection with the offering, creating a short position in the common stock for
their own account. In addition, to cover over-allotments or to stabilize the
price of the common stock, the underwriters may bid for, and purchase, shares of
common stock in the open market. Finally, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the
common stock in the offering, if the syndicate repurchases previously
distributed common stock in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of the common stock above independent market
levels. The underwriters are not required to engage in these activities, and may
end any of these activities at any time.
From time to time, some of the underwriters have provided, and continue to
provide, investment banking services to Duke Energy Field Services Corporation,
Duke Energy, Phillips and their affiliates.
83
<PAGE> 86
Duke Energy Field Services Corporation and the underwriters have agreed to
indemnify each other against certain liabilities, including liabilities under
the Securities Act. The underwriters have agreed to reimburse Duke Energy Field
Services Corporation for certain of its expenses incurred in connection with the
offerings not to exceed $ .
At the request of Duke Energy Field Services Corporation, the underwriters
have reserved for sale, at the initial offering price, up to 1,972,500 shares
offered hereby for directors, officers, employees, business associates of Duke
Energy Field Service Corporation, and its two principal stockholders Duke Energy
and Phillips, and related persons. The shares of Common Stock available for sale
to the general public will be reduced to the extent such persons purchase such
reserved shares. Any reserved shares which are not so purchased will be offered
by the Underwriters to the general public on the same basis as the other shares
offered hereby.
PRICING OF THE OFFERINGS
Prior to the offerings, there has been no public market for the common
stock. The initial public offering price will be determined through negotiations
between Duke Energy Field Services Corporation and the U.S. representatives.
Among the factors to be considered in determining the initial public offering
price will be the future prospects of Duke Energy Field Services Corporation and
its industry in general, sales, earnings and certain other financial operating
information of Duke Energy Field Services Corporation in recent periods, and the
price-earnings ratios, price-sales ratios, market prices of securities and
certain financial and operating information of companies engaged in activities
similar to those of the company. The estimated initial public offering price
range set forth on the cover page of this preliminary prospectus is subject to
change as a result of market conditions and other factors.
VALIDITY OF THE COMMON STOCK
The validity of the shares of common stock we are offering will be passed
upon for us by Vinson & Elkins L.L.P., Houston, Texas and for the underwriters
by Sullivan & Cromwell, New York, New York.
EXPERTS
The combined financial statements of Duke Energy Field Services Corporation
and Affiliates as of December 31, 1998 and 1999 and for each of the three years
in the period ended December 31, 1999 and the 1997 combined statements of
operations and cash flows for UP Fuels Division included in this prospectus have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports appearing herein, and are included in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements of Phillips Gas Company as of
December 31, 1999 and 1998 and for each of the three years in the period ended
December 31, 1999 appearing in this prospectus and elsewhere in the registration
statement have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon appearing elsewhere herein, and are included in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of Union Pacific Fuels, Inc. as of
December 31, 1998 and March 31, 1999 included in this prospectus have been
audited by Arthur Andersen LLP, independent accountants, as stated in their
report on such financial statements which have been included herein in reliance
upon their authority as experts in auditing and accounting.
84
<PAGE> 87
ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-1 under the Securities Act, and the rules and regulations
promulgated thereunder, with respect to the common stock offered under this
prospectus. This prospectus, which constitutes a part of the registration
statement, does not contain all of the information set forth in the registration
statement and the attached exhibits and schedules. Statements contained in this
prospectus as to the contents of any contract or other document that is filed as
an exhibit to the registration statement are summaries of the material
provisions of those documents. These summaries are qualified in all respects by
reference to the full text of such contract or document.
The registration statement can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's regional offices at Seven World Trade
Center, 13th Floor, New York, New York 10048 and Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of all or any
portion of the registration statement can be obtained from the Public Reference
Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. You may obtain information on the operation of the Public
Reference Section by calling the SEC at (800) 732-0330. In addition, the
registration statement is publicly available through the SEC's site on the
internet, located at http://www.sec.gov.
Upon completion of the offerings, we will be required to comply with the
informational requirements of the Securities and Exchange Act of 1934 and,
accordingly, will file current reports on Form 8-K, quarterly reports on Form
10-Q, annual reports on Form 10-K, proxy statements and other information with
the SEC. Those reports, proxy statements and other information will be available
for inspection and copying at the regional offices, public reference facilities
and internet site of the SEC referred to above. We intend to furnish our
stockholders with annual reports containing consolidated financial statements
certified by an independent public accounting firm.
85
<PAGE> 88
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
PRO FORMA ----
<S> <C>
DUKE ENERGY FIELD SERVICES CORPORATION (THE "COMPANY")
Unaudited Pro Forma Balance Sheet as of March 31, 2000.... F-3
Notes to the Unaudited Pro Forma Balance Sheet............ F-4
Unaudited Pro Forma Income Statements for the Year Ended
December 31, 1999 and Quarter Ended March 31, 2000..... F-6
Notes to the Unaudited Pro Forma Income Statements........ F-8
HISTORICAL
DUKE ENERGY FIELD SERVICES CORPORATION AND AFFILIATES (THE
"PREDECESSOR COMPANY")
Independent Auditors' Report.............................. F-10
Combined Balance Sheets at December 31, 1998 and 1999..... F-11
Combined Statements of Income for the Years Ended December
31, 1997, 1998 and 1999................................ F-12
Combined Statements of Stockholders' Equity for the Years
Ended December 31, 1997, 1998 and 1999................. F-13
Combined Statements of Cash Flows for the Years Ended
December 31, 1997, 1998 and 1999....................... F-14
Notes to Combined Financial Statements.................... F-15
Consolidated Balance Sheets as of December 31, 1999 and
March 31, 2000 (Unaudited)............................. F-29
Unaudited Consolidated Statements of Income for the
Quarters Ended March 31, 1999 and 2000................. F-30
Unaudited Consolidated Statements of Stockholder's Equity
for the Quarter Ended March 31, 2000................... F-31
Unaudited Consolidated Statements of Cash Flows for the
Quarters Ended March 31, 1999 and 2000................. F-32
Notes to the Unaudited Consolidated Financial
Statements............................................. F-33
PHILLIPS GAS COMPANY ("GPM")
Report of Independent Auditors............................ F-39
Consolidated Balance Sheets at December 31, 1998 and
1999................................................... F-40
Consolidated Statements of Income for the Years Ended
December 31, 1997, 1998 and 1999....................... F-41
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1997, 1998 and
1999................................................... F-42
Consolidated Statements of Changes in Stockholders' Equity
(Deficit) for the Years Ended December 31, 1997, 1998
and 1999............................................... F-43
Notes to Financial Statements............................. F-44
Unaudited Consolidated Statements of Income for the
Quarters Ended March 31, 1999 and 2000................. F-53
Unaudited Consolidated Statements of Cash Flows for the
Quarters Ended March 31, 1999 and 2000................. F-54
Notes to the Unaudited Consolidated Financial
Statements............................................. F-55
UP FUELS DIVISION OF UNION PACIFIC RESOURCES GROUP INC. ("UP
FUELS")
Reports of Independent Auditors........................... F-57
Combined Statements of Income for the Years Ended December
31, 1997 and 1998 and the Quarter Ended March 31,
1999................................................... F-59
Combined Statements of Cash Flows for the Years Ended
December 31, 1997 and 1998 and the Quarter Ended March
31, 1999............................................... F-60
Notes to Combined Financial Statements.................... F-61
</TABLE>
F-1
<PAGE> 89
UNAUDITED PRO FORMA FINANCIAL STATEMENTS
The following unaudited pro forma financial statements (the "Unaudited Pro
Forma Financial Statements") of Duke Energy Field Services Corporation were
derived by the application of pro forma adjustments to historical combined and
consolidated financial statements included elsewhere in this prospectus. On
March 31, 2000, the Duke Energy and Phillips Petroleum midstream natural gas
businesses were contributed to Duke Energy Field Services LLC. Such contribution
included the general partner of TEPPCO as well as certain midstream natural gas
assets of Conoco, Inc. and Mitchell Energy & Development Corp. which were
acquired immediately prior to the Contribution. The contributions have been
reflected in the March 31, 2000 balance sheet of the Predecessor Company. The
Unaudited Pro Forma Balance Sheet gives effect to the subsequent borrowings,
distributions to Duke Energy and Phillips Petroleum, the public offering of
common stock, elimination of minority interest and tax effects thereof, as if
such occurred on March 31, 2000. All of the events above are referred to
collectively as the "Transactions."
The Unaudited Pro Forma Income Statements give effect to i) the
Transactions and ii) acquisition of the gas gathering business of Union Pacific
Resources (the "UP Fuels Acquisition"), which occurred March 31, 1999 as if such
transactions were consummated as of January 1, 1999.
The adjustments are described in the accompanying Notes to the Unaudited
Pro Forma Balance Sheet and the Notes to the Unaudited Pro Forma Income
Statement. The Unaudited Pro Forma Financial Statements should not be considered
indicative of the actual results that would have been achieved had the
Transactions or the UP Fuels Acquisition been consummated on the dates or for
the period indicated and do not purport to indicate balances or results of
operations as of any future date or for any future period. The Unaudited Pro
Forma Financial Statements should be read in conjunction with the historical
combined and consolidated financial statements of the Predecessor Company, UP
Fuels, GPM and the notes thereto included elsewhere in this prospectus.
F-2
<PAGE> 90
DUKE ENERGY FIELD SERVICES CORPORATION
UNAUDITED PRO FORMA BALANCE SHEET
AS OF MARCH 31, 2000
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- ----------
<S> <C> <C> <C>
CURRENT ASSETS
Cash and cash equivalents....................... $ 172 $ 10,898(1) $ 11,070
Accounts receivable:
Customers, net............................... 496,102 -- 496,102
Affiliates................................... 79,824 -- 79,824
Other........................................ 29,031 -- 29,031
Receivables from parents -- working capital
adjustments.................................. 95,751 (95,751)(2) --
Inventories..................................... 26,877 -- 26,877
Notes receivable................................ 8,309 -- 8,309
Other........................................... 2,710 -- 2,710
---------- ----------- ----------
Total current assets.................... 738,776 (84,853) 653,923
PROPERTY AND EQUIPMENT, NET....................... 4,619,169 4,619,169
INVESTMENT IN AFFILIATES.......................... 275,280 275,280
INTANGIBLE ASSETS
Natural Gas liquids sales contracts, net........ 103,977 -- 103,977
Goodwill, net................................... 495,554 (136,929)(6) 358,625
OTHER NONCURRENT ASSETS........................... 79,536 (943)(3) 78,593
---------- ----------- ----------
TOTAL ASSETS............................ $6,312,292 $ (222,725) $6,089,567
========== =========== ==========
CURRENT LIABILITIES
Accounts payable
Trade........................................ 561,806 -- 561,806
Affiliates................................... 75,252 -- 75,252
Other........................................ 30,765 -- 30,765
Accrued taxes other than income................. 19,617 -- 19,617
Distributions payable -- Parents................ 2,744,319 (2,744,319)(4) --
Short-term debt................................. -- 2,138,400(5) 2,138,400
Other........................................... 30,927 -- 30,927
---------- ----------- ----------
Total current liabilities............... 3,462,686 (605,919) 2,856,767
DEFERRED INCOME TAXES............................. 979,013 (137,287)(6) 841,726
OTHER LONG TERM LIABILITIES....................... 33,703 33,703
MINORITY INTEREST................................. 521,705 (521,705)(7) --
STOCKHOLDER'S EQUITY.............................. 1,315,185 1,042,186(8) 2,357,371
---------- ----------- ----------
TOTAL LIABILITIES AND STOCKHOLDER'S
EQUITY................................ $6,312,292 $ (222,725) $6,089,567
========== =========== ==========
</TABLE>
See Notes to the Unaudited Pro Forma Balance Sheet.
F-3
<PAGE> 91
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO THE UNAUDITED PRO FORMA
BALANCE SHEET
AS OF MARCH 31, 2000
(DOLLARS IN THOUSANDS)
In December 1999, Duke Energy Field Services Corporation (the "Company")
and its subsidiary Duke Energy Field Services LLC ("Field Services LLC") were
formed to facilitate the combination of the midstream natural gas businesses of
Duke Energy and Phillips Petroleum Company (the "Combination"). The Company was
capitalized with 1,000 shares of common stock with a par value of $.01 per
share.
The Combination occurred on March 31, 2000. As part of the Combination
distributions of $1,524,519 and $1,219,800 payable to Duke Energy and Phillips,
respectively, have been recorded. In addition to contributing its midstream
natural gas business, Duke Energy contributed the General Partner of TEPPCO
Partners, L.P. a publicly traded limited partnership ("TEPPCO General Partner")
and the mid-continent midstream natural gas assets of Conoco, Inc. and Mitchell
Energy & Development Corp. acquired immediately prior to the Combination.
Subsequent to March 31, 2000 the Company borrowed $2,790,900 in commercial paper
(the "Indebtedness") and made the distributions discussed above. In connection
with the Offerings, the Company acquired the Phillips member interests in Field
Services LLC in exchange for shares of the Company.
The Combination was accounted for as a purchase business combination in
accordance with Accounting Principles Board Opinion (APB) No. 16 "Accounting for
Business Combinations". The Predecessor Company was the acquiror of Phillips'
midstream natural gas business ("GPM") in the Combination.
The following Notes to the Unaudited Pro Forma Balance Sheet describe the
adjustments to March 31, 2000 historical balances to give effect to the
Offerings and related transactions.
1. The pro forma financial data have been derived by the application of pro
forma adjustments to the historical financial statements of the Company for
the period noted. The sources and uses of funds are as follows:
<TABLE>
<CAPTION>
TOTAL
----------
<S> <C>
Sources of Funds:
Indebtedness.............................................. $2,790,900
Proceeds from the Offerings............................... 552,300
Net cash settlement for working capital receivables from
parents................................................ 95,751
----------
Total Sources.......................................... $3,438,951
----------
Uses of Funds:
Distributions to Duke Energy and Phillips................. $2,744,319
Paydown of Indebtedness................................... 652,500
Underwriter fees and other transaction expenses........... 31,234
----------
Total Uses............................................. $3,428,053
==========
Net adjustment to cash.................................... $ 10,898
==========
</TABLE>
2. Reflects the cash settlement for working capital receivables from parents.
3. Reflects the write-off of a portion of the deferred financing fees when
indebtedness is paid down with the proceeds of the Offerings.
4. Reflects payment of the distributions payable.
5. Reflects the Indebtedness incurred in connection with the Combination. On
March 31, 2000, Field Services LLC entered into a $2,800,000 credit facility
with several financial institutions (the "Credit Facility"). The Credit
Facility will be used as the liquidity backstop to support Field Services LLC
F-4
<PAGE> 92
NOTES TO THE UNAUDITED PRO FORMA
BALANCE SHEET -- (CONTINUED)
Commercial Paper program. On April 3, 2000 Field Services LLC borrowed
$2,790,900 in the commercial paper market to fund distributions to Field
Services LLC members and provide working capital. Commercial paper
outstanding at April 30, 2000 has maturities ranging from one day to 70 days
and had annual interest rates between 6.20% and $6.45%. The Credit Facility,
which is not expected to be drawn upon, matures on March 30 2001, bears
interest at a rate equal to, at the Company's option, either (1) London
Interbank Offered Rate (LIBOR) plus 0.50% per year for the first 90 days
following the closing of the credit facility and LIBOR plus 0.625% per year
thereafter or (2) the higher of (a) the Bank of America prime rate and (b)
the Federal Funds rate plus 0.50% per year. Upon completion of the Offerings
the Company obligations under the facility were assumed by Duke Energy Field
Services Corporation and became an unsecured obligation.
The Company plans to refinance a portion of the commercial paper with the
proceeds of a term credit facility. Accordingly, pro forma interest expense
has been calculated using Management's estimate of the weighted average rate
at which the Company believes it will be able to refinance the commercial
paper. Management believes that 8% is the appropriate interest rate for such
an estimate. Such rate is higher than the prevailing commercial paper
interest rate available as of the date of this filing.
<TABLE>
<S> <C>
Indebtedness................................................ $2,790,900
Pay-down of Indebtedness with net proceeds of the
Offerings................................................. (521,066)
Pay-down of Indebtedness with working capital and other
funds..................................................... (131,434)
----------
$2,138,400
==========
</TABLE>
6. Reflects additional tax basis received in connection with the exchange of
common stock for Phillips Petroleum's Field Services LLC member interest as
a reduction of goodwill. In addition, deferred income taxes have been
reduced for the tax benefit of deferred financing fees written-off.
7. Reflects issuance of the Companies stock in exchange for the member interest
of Field Services LLC.
8. The pro forma adjustment to total stockholder's equity related to the
Offerings reflect the following:
<TABLE>
<S> <C>
Issuance of the Company's stock in exchange for Phillips
Petroleum's member interest of Field Services LLC......... $ 521,705
Estimated net proceeds of the Offerings..................... 521,066
Write-off of deferred financing fees related to the pay-down
of Indebtedness, net of tax............................... (585)
----------
Net adjustment....................................... $1,042,186
==========
</TABLE>
F-5
<PAGE> 93
DUKE ENERGY FIELD SERVICES CORPORATION
UNAUDITED PRO FORMA INCOME STATEMENT
FOR THE YEAR ENDED DECEMBER 31, 1999
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
PREDECESSOR CONOCO/
COMPANY UP FUELS GPM MITCHELL TEPPCO GP
HISTORICAL ACQUISITION(1) HISTORICAL ACQUISITION(2) CONTRIBUTION(3)
----------- -------------- ---------- -------------- ---------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES
Sales of natural gas and petroleum products........ $3,310,260 $228,600 $1,501,178 $228,889 $
Transportation, storage and processing............. 148,050 69,324 88,279 -- --
---------- -------- ---------- -------- ------
Total operating revenues..................... 3,458,310 297,924 1,589,457 228,889 --
COSTS AND EXPENSES
Natural gas and petroleum products................. 2,965,297 252,880 1,148,910 187,689 --
Operating and maintenance.......................... 181,392 22,478 176,864 12,400 --
Depreciation and amortization...................... 130,788 15,125 80,458 6,200 --
General and administrative......................... 73,685 6,965 15,560 -- --
Net (gain) loss on sale of assets.................. 2,377 (907) -- --
---------- -------- ---------- -------- ------
Total costs and expenses..................... 3,353,539 297,448 1,420,885 206,289 --
---------- -------- ---------- -------- ------
OPERATING INCOME (LOSS)............................. 104,771 476 168,572 22,600 --
EQUITY IN EARNINGS OF UNCONSOLIDATED AFFILIATES..... 22,502 4,821 1,048 (8,994) 9,300
---------- -------- ---------- -------- ------
EARNINGS (LOSS) BEFORE INTEREST AND
TAXES.............................................. 127,273 5,297 169,620 13,606 9,300
INTEREST EXPENSE.................................... 52,915 35,643 0 --
---------- -------- ---------- -------- ------
EARNINGS (LOSS) BEFORE INCOME TAXES................. 74,358 5,297 133,977 13,606 9,300
INCOME TAXES........................................ 31,029 1,900 52,244 5,170 3,534
---------- -------- ---------- -------- ------
INCOME (LOSS) FROM CONTINUING OPERATIONS............ $ 43,329 $ 3,397 $ 81,733 $ 8,436 $5,766
========== ======== ========== ======== ======
EARNINGS PER COMMON SHARE(9)........................
WEIGHTED AVERAGE SHARES OUTSTANDING.................
<CAPTION>
ADJUSTMENTS(4) PRO FORMA
-------------- ----------
<S> <C> <C>
OPERATING REVENUES
Sales of natural gas and petroleum products........ $ $5,268,927
Transportation, storage and processing............. -- 305,653
--------- ----------
Total operating revenues..................... -- 5,574,580
COSTS AND EXPENSES
Natural gas and petroleum products................. -- 4,554,776
Operating and maintenance.......................... -- 393,134
Depreciation and amortization...................... 34,826(5) 267,397
General and administrative......................... -- 96,210
Net (gain) loss on sale of assets.................. -- 1,470
--------- ----------
Total costs and expenses..................... 34,826 5,312,987
--------- ----------
OPERATING INCOME (LOSS)............................. (34,826) 261,593
EQUITY IN EARNINGS OF UNCONSOLIDATED AFFILIATES..... (1,339)(6) 27,338
--------- ----------
EARNINGS (LOSS) BEFORE INTEREST AND
TAXES.............................................. (36,165) 288,931
INTEREST EXPENSE.................................... 83,055(7) 171,613
--------- ----------
EARNINGS (LOSS) BEFORE INCOME TAXES................. (119,220) 117,318
INCOME TAXES........................................ (40,061)(8) 53,816
--------- ----------
INCOME (LOSS) FROM CONTINUING OPERATIONS............ $ (79,159) $ 63,502
========= ==========
EARNINGS PER COMMON SHARE(9)........................ $ .45
==========
WEIGHTED AVERAGE SHARES OUTSTANDING................. 140,752
==========
</TABLE>
See Notes to the Unaudited Pro Forma Income Statement.
F-6
<PAGE> 94
DUKE ENERGY FIELD SERVICES CORPORATION
UNAUDITED PRO FORMA INCOME STATEMENT
FOR THE THREE MONTH PERIOD ENDED MARCH 31, 2000
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
PREDECESSOR GPM CONOCO/MITCHELL TEPPCO
COMPANY HISTORICAL ACQUISITION(2) CONTRIBUTION(3) ADJUSTMENTS(4) PRO FORMA
----------- ---------- --------------- --------------- -------------- ----------
<S> <C> <C> <C> <C> <C> <C>
OPERATING REVENUES
Sales of natural gas and petroleum
products......................... $1,415,465 $532,762 $57,222 $ -- $ -- $2,005,449
Transportation, storage and
processing....................... 35,746 9,603 -- -- -- 45,349
---------- -------- ------- ------ --------- ----------
Total operating revenues..... 1,451,211 542,365 57,222 -- -- 2,050,798
COSTS AND EXPENSES
Natural gas and petroleum
products......................... 1,278,511 377,659 46,922 -- -- 1,703,092
Operating and maintenance.......... 49,039 47,285 3,100 -- -- 99,424
Depreciation and amortization...... 37,899 20,700 1,550 -- 8,121(5) 68,270
General and administrative......... 29,701 4,251 -- -- -- 33,952
Net (gain) loss on sale of
assets........................... 4,139 (88) -- -- -- 4,051
---------- -------- ------- ------ --------- ----------
Total costs and expenses..... 1,399,289 449,807 51,572 -- 8,121 1,908,789
---------- -------- ------- ------ --------- ----------
OPERATING INCOME.................... 51,922 92,558 5,650 -- (8,121) 142,009
EQUITY EARNINGS OF UNCONSOLIDATED
AFFILIATES......................... 6,759 (250) (895) 4,700 (346)(6) 9,968
---------- -------- ------- ------ --------- ----------
EARNINGS BEFORE INTEREST AND
TAXES.............................. 58,681 92,308 4,755 4,700 (8,467) 151,977
INTEREST EXPENSE.................... (14,477) (17,865) -- -- (10,562)(7) (42,904)
---------- -------- ------- ------ --------- ----------
EARNINGS BEFORE INCOME TAXES........ 44,204 74,443 4,755 4,700 (19,029) 109,073
INCOME TAXES........................ 17,352 29,110 1,807 1,786 (5,920)(8) 44,135
---------- -------- ------- ------ --------- ----------
NET INCOME FROM CONTINUING
OPERATIONS......................... $ 26,852 $ 45,333 $ 2,948 $2,914 $ (13,109) $ 64,938
========== ======== ======= ====== ========= ==========
EARNINGS PER COMMON SHARE(9)........ $ .46
==========
WEIGHTED AVERAGE SHARES
OUTSTANDING........................ 140,752
==========
</TABLE>
See Notes to the Unaudited Pro Forma Income Statement.
F-7
<PAGE> 95
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO THE UNAUDITED PRO FORMA INCOME STATEMENTS
FOR THE YEAR ENDED DECEMBER 31, 1999 AND THE THREE MONTH PERIOD ENDED MARCH 31,
2000
(IN THOUSANDS)
The Company's pro forma financial data have been derived by the application
of pro forma adjustments to the historical financial statements of the
Predecessor Company and other contributed businesses for the period noted. See
Note (1) to the Unaudited Pro Forma Balance Sheet.
1. Reflects the historical operating results of UP Fuels for the three month
period ended March 31, 1999, the date the UP Fuels Acquisition was
consummated by the Predecessor Company.
2. Reflects the results of operations associated with the acquisition of the
Conoco and Mitchell businesses, net of the earnings from the
Ferguson/Burleson Joint Venture interest exchanged as part of the
consideration for the businesses.
3. Reflects equity earnings of the TEPPCO General Partnership interest
contributed by Duke Energy.
4. The pro forma adjustments exclude non-recurring expenses directly related to
the Transactions which the Company anticipates will be reflected in the
income statement for the period including the Transactions. Such expenses
relate principally to the write-off of existing deferred financing fees on
debt repaid as described in Note (3) to the Unaudited Pro Forma Balance
Sheet.
5. The excess purchase cost over the book value of net GPM assets acquired in
the Combination has not yet been fully allocated to individual assets and
liabilities acquired. However, the Company believes a portion will be
allocated to property, plant and equipment and identifiable intangibles and
the remainder, representing goodwill, will be amortized over 20 years. Given
its preliminary estimate of the allocation of the purchase cost to net assets
acquired, management has estimated a composite life of 20 years.
The adjustment to depreciation and amortization was calculated as follows:
<TABLE>
<CAPTION>
PERIOD ENDED
-------------------------
DECEMBER 31, MARCH 31,
1999 2000
------------ ----------
<S> <C> <C>
Net book value of GPM property at January 1, 1999......... $ 943,302 $ 943,302
Excess purchase price over net assets acquired in
Combination Allocated to property and equipment......... 1,086,452 1,086,452
Allocated to goodwill................................... 275,923 275,923
---------- ----------
Subtotal................................................ 2,305,677 2,305,677
Composite life -- 20 years................................ 20 20
Depreciation and amortization calculated.................. 115,284 28,821
Less: GPM historical depreciation and amortization........ (80,458) (20,700)
---------- ----------
Net adjustment............................................ $ 34,826 $ 8,121
========== ==========
</TABLE>
6. Reflects elimination of the equity earnings associated with the Predecessor
Company's investment in Westana, which was sold in connection with the
Combination.
F-8
<PAGE> 96
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO THE UNAUDITED PRO FORMA
INCOME STATEMENTS--CONTINUED
FOR THE YEAR ENDED DECEMBER 31, 1999 AND THE THREE MONTH PERIOD ENDED MARCH 31,
2000
(IN THOUSANDS)
7. The pro forma adjustment to interest expense, net under the new capital
structure is as follows:
<TABLE>
<CAPTION>
PERIOD ENDED
------------------------
DECEMBER 31, MARCH 31,
1999 2000
------------ ---------
<S> <C> <C>
Indebtedness at estimated weighted average of 8%............ $223,272 $ 55,818
Amortization of deferred financing costs over estimated
weighted average life of 7.5 years........................ 667 167
-------- --------
Subtotal for the year and one quarter..................... 223,939 55,985
Less: historical interest expense........................... (88,558) (32,342)
-------- --------
Incremental interest expense from Indebtedness before the
Offerings................................................. 135,381 23,643
-------- --------
Indebtedness paid down with proceeds of the Offerings and
Other..................................................... $652,500 $652,500
Estimated weighted average rate............................. 8.0% 8.0%
Subtotal for the year and one quarter..................... (52,200) (13,050)
Deferred Fees written off in pay-down of the Indebtedness... (943) (943)
Estimated weighted average life............................. 7.5 7.5
Reduction in amortization for one year and one quarter,
respectively.............................................. (126) (31)
Reduction of interest expense resulting from pay-down of the
Indebtedness.............................................. (52,326) (13,081)
-------- --------
Net adjustment.............................................. $ 83,055 $ 10,562
======== ========
</TABLE>
A .125% increase or decrease in the assumed weighted average interest rate
would change pro forma interest expense with respect to the Indebtedness by
$2,673 after paydown with the proceeds of the Offerings. Pro forma net income
would change by $1,657 on an annual basis.
8. The pro forma adjustment to income taxes reflects the use of the combined
federal and state statutory income tax of 38% on pro forma taxable income,
which is adjusted for the increase in non-deductible goodwill amortization as
follows:
<TABLE>
<CAPTION>
1999 2000
----------------------------- ----------------------------
PRO FORMA PRO FORMA
ADJUSTMENT AMOUNT RATE ADJUSTMENT AMOUNT RATE ADJUSTMENT
---------- --------- ---- ---------- -------- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Incremental depreciation on
stepped-up GPM assets...... $ (21,030) 38% $ (7,991) $ (4,672) 38% $(1,775)
Net adjustment to equity
earnings on unconsolidated
affiliates................. (1,339) 38% (509) (346) 38% (131)
Incremental interest expense
under the Indebtedness..... (83,055) 38% (31,561) (10,562) 38% (4,014)
--------- -------- -------- -------
$(105,424) $(40,061) $(15,580) $(5,920)
========= ======== ======== =======
</TABLE>
9. Earnings per share has been determined using total outstanding shares after
the offering of 140,752. Stock options to be granted at the offering price
will have no affect on earnings per share.
F-9
<PAGE> 97
INDEPENDENT AUDITORS' REPORT
Duke Energy Field Services Corporation and Affiliates
We have audited the accompanying combined balance sheets of Duke Energy
Field Services Corporation and Affiliates ("the Predecessor Companies") as of
December 31, 1998 and 1999, and the related combined statements of income and
stockholders' equity and cash flows for each of the three years in the period
ended December 31, 1999. The Predecessor Companies are under common ownership
and common management. These financial statements are the responsibility of the
Predecessor Companies' management. Our responsibility is to express an opinion
on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such financial statements present fairly, in all material
respects, the combined financial position of the Predecessor Companies as of
December 31, 1998 and 1999, and the combined results of their operations and
their combined cash flows for each of the three years in the period ended
December 31, 1999 in conformity with generally accepted accounting principles.
DELOITTE & TOUCHE LLP
February 18, 2000
Denver, Colorado
F-10
<PAGE> 98
DUKE ENERGY FIELD SERVICES CORPORATION AND AFFILIATES
COMBINED BALANCE SHEETS
DECEMBER 31, 1998 AND 1999
(IN THOUSANDS)
<TABLE>
<CAPTION>
1998 1999
---------- ----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents................................. $ 168 $ 792
Accounts receivable:
Customers (net of allowance for doubtful accounts,
1998, $749 and 1999, $6,743).......................... 155,143 370,139
Affiliates............................................. 57,725 63,927
Other.................................................. 27,246 30,067
Inventories............................................... 23,713 38,701
Notes receivable.......................................... 5,266 13,050
Other..................................................... 531 1,580
---------- ----------
Total current assets.............................. 269,792 518,256
PROPERTY, PLANT AND EQUIPMENT:
Cost...................................................... 1,763,594 3,005,510
Accumulated depreciation and amortization................. (480,296) (596,125)
---------- ----------
Net property, plant, and equipment................ 1,283,298 2,409,385
INVESTMENTS IN AFFILIATES................................... 187,938 347,735
INTANGIBLE ASSETS:
Natural gas liquids sales contracts, net.................. 102,382
Goodwill, net............................................. 15,299 81,946
OTHER NONCURRENT ASSETS..................................... 14,511 12,131
---------- ----------
TOTAL ASSETS................................................ $1,770,838 $3,471,835
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable:
Trade.................................................. $ 200,864 $ 353,977
Affiliates............................................. 10,762 62,370
Other.................................................. 5,556 33,858
Accrued taxes other than income........................... 14,194 15,653
Advances, net -- parents.................................. 334,057 1,579,475
Notes payable -- affiliates............................... 540,000 588,880
Other..................................................... 8,976 6,372
---------- ----------
Total current liabilities......................... 1,114,409 2,640,585
DEFERRED INCOME TAXES....................................... 222,007 308,308
NOTE PAYABLE TO PARENT...................................... 101,600 101,600
OTHER LONG TERM LIABILITIES................................. 34,871
COMMITMENTS AND CONTINGENT LIABILITIES
STOCKHOLDERS' EQUITY:
Common stock.............................................. 3 1
Paid-in capital........................................... 202,523 213,091
Retained earnings......................................... 130,296 173,091
Other comprehensive income................................ 288
---------- ----------
Total stockholders' equity........................ 332,822 386,471
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.................. $1,770,838 $3,471,835
========== ==========
</TABLE>
See Notes to the Combined Financial Statements.
F-11
<PAGE> 99
DUKE ENERGY FIELD SERVICES CORPORATION AND AFFILIATES
COMBINED STATEMENTS OF INCOME
YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
(IN THOUSANDS)
<TABLE>
<CAPTION>
1997 1998 1999
---------- ---------- ----------
<S> <C> <C> <C>
OPERATING REVENUES:
Sales of natural gas and petroleum products............ $1,700,029 $1,469,133 $3,310,260
Transportation and storage of natural gas.............. 41,896 50,097 76,604
Other.................................................. 59,907 65,090 71,446
---------- ---------- ----------
Total operating revenues....................... 1,801,832 1,584,320 3,458,310
---------- ---------- ----------
COSTS AND EXPENSES:
Natural gas and petroleum products..................... 1,468,089 1,338,129 2,965,297
Operating and maintenance.............................. 104,308 113,556 181,392
Depreciation and amortization.......................... 67,701 75,573 130,788
General and administrative............................. 36,023 44,946 73,685
Net (gain) loss on sale of assets...................... (236) (33,759) 2,377
---------- ---------- ----------
Total costs and expenses....................... 1,675,885 1,538,445 3,353,539
---------- ---------- ----------
OPERATING INCOME......................................... 125,947 45,875 104,771
EQUITY IN EARNINGS OF UNCONSOLIDATED AFFILIATES.......... 9,784 11,845 22,502
---------- ---------- ----------
EARNINGS BEFORE INTEREST AND TAXES....................... 135,731 57,720 127,273
INTEREST EXPENSE......................................... (51,113) (52,403) (52,915)
---------- ---------- ----------
INCOME BEFORE INCOME TAXES............................... 84,618 5,317 74,358
INCOME TAXES............................................. 33,380 3,289 31,029
---------- ---------- ----------
NET INCOME............................................... $ 51,238 $ 2,028 $ 43,329
========== ========== ==========
</TABLE>
See Notes to the Combined Financial Statements.
F-12
<PAGE> 100
DUKE ENERGY FIELD SERVICES CORPORATION AND AFFILIATES
COMBINED STATEMENTS OF STOCKHOLDERS' EQUITY
YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONAL OTHER
COMMON PAID-IN RETAINED COMPREHENSIVE
STOCK CAPITAL EARNINGS INCOME TOTAL
------ ---------- -------- ------------- --------
<S> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1996....... $ 3 $200,326 $77,030 $277,359
Contributions....................
Net income....................... 51,238 51,238
--- -------- -------- ---- --------
BALANCE, DECEMBER 31, 1997....... 3 200,326 128,268 328,597
Contributions.................... 2,197 2,197
Net income....................... 2,028 2,028
--- -------- -------- ---- --------
BALANCE, DECEMBER 31, 1998....... 3 202,523 130,296 332,822
Contributions.................... 10,568 10,568
Net income....................... 43,329 43,329
Other............................ (2) (534) $288 (248)
--- -------- -------- ---- --------
BALANCE, DECEMBER 31, 1999....... $ 1 $213,091 $173,091 $288 $386,471
=== ======== ======== ==== ========
</TABLE>
See Notes to the Combined Financial Statements.
F-13
<PAGE> 101
DUKE ENERGY FIELD SERVICES CORPORATION AND AFFILIATES
COMBINED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
(IN THOUSANDS)
<TABLE>
<CAPTION>
1997 1998 1999
----------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income............................................. $ 51,238 $ 2,028 $ 43,329
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization.......................... 67,701 75,573 130,788
Deferred income tax expense............................ 35,823 45,315 86,301
Equity in undistributed earnings....................... (9,784) (11,846) (22,502)
Loss (gain) on sale of assets.......................... (236) (33,759) 2,377
Net change in operating assets and liabilities:
Accounts receivable.................................... (76,679) 133,461 (175,008)
Inventories............................................ 5,572 1,762 (5,303)
Other current assets................................... 11,320 10,150 20,356
Accounts payable....................................... 101,763 (177,418) 152,535
Other current liabilities.............................. (13,361) (4,857) (4,390)
Other long term liabilities............................ (55,347)
----------- --------- ---------
Net cash provided by operating activities...... 173,357 40,409 173,136
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisitions and other capital expenditures............ (121,978) (185,479) (1,570,083)
Investment in affiliates............................... (29,600) (84,884) (62,752)
Affiliate distributions................................ 10,742 15,051 31,999
Proceeds from sales of assets.......................... 2,815 51,687 29,390
----------- --------- ---------
Net cash used in investing activities.......... (138,021) (203,625) (1,571,446)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net increase (decrease) in advances -- parents......... (35,061) 162,514 1,350,054
Notes payable borrowings............................... 48,880
----------- --------- ---------
Net cash flows provided by (used in) financing
activities................................... (35,061) 162,514 1,398,934
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS..... 275 (702) 624
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR............. 595 870 168
----------- --------- ---------
CASH AND CASH EQUIVALENTS, END OF YEAR................... $ 870 $ 168 $ 792
=========== ========= =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION -- Cash
paid for interest (net of amounts capitalized)......... $ 51,765 $ 52,948 $ 52,915
</TABLE>
See Notes to the Combined Financial Statements.
F-14
<PAGE> 102
DUKE ENERGY FIELD SERVICES CORPORATION AND AFFILIATES
NOTES TO COMBINED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
1. ACCOUNTING POLICIES SUMMARY
Principles of Combining -- The accounting policies are presented to assist
the reader in evaluating the combined financial statements of Duke Energy Field
Services Corporation ("the Company"), Duke Energy Field Services, Inc. (DEFSI),
Panhandle Field Services Company (PFSC), Panhandle Gathering Company (PGC), and
Duke Energy Services Canada, Ltd. (DESCL) (together, "Duke Energy Field Services
Corporation and Affiliates" or the "Predecessor Companies"). The Predecessor
Companies are indirect wholly-owned subsidiaries of Duke Energy Corporation
("Duke Energy"). During 1999, PFSC and PGC were contributed to and became
wholly-owned subsidiaries of DEFSI. The resulting December 31, 1999
stockholders' equity (1,000 shares authorized and issued, $1.00 par value)
reflects that of the Company and DESCL. Our certificate of incorporation limits
the scope of our business to the midstream natural gas industry in the United
States and Canada and the marketing of natural gas liquids in Mexico.
The Combination -- On December 16, 1999, Duke Energy and Phillips Petroleum
Company
("Phillips") entered into an agreement to combine their United States and
Canadian midstream natural gas gathering, processing and natural gas liquid
operations (the Combination). In connection with the Combination, Duke Energy's
midstream natural gas gathering and processing business was transferred to Duke
Energy Field Services LLC ("Field Services LLC") and the Combination will be
accounted for as an acquisition by the Predecessor Companies of Phillips'
midstream business.
Use of Estimates -- The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
Cash and Cash Equivalents -- All liquid investments with maturities at date
of purchase of three months or less are considered cash equivalents.
Inventories -- Inventories are recorded at the lower of cost or market
using the average cost method.
Property, Plant and Equipment -- Property, plant and equipment are stated
at cost, which does not purport to represent replacement or realizable value.
Assets, including goodwill and other intangibles, are evaluated for potential
impairment based on undiscounted cash flows and any impairment recorded is
derived based on discounted cash flows. There was no impairment during 1997,
1998 or 1999. Depreciation of property, plant and equipment is computed using
the straight-line method (see Note 4).
Interest totaling $2.3 million, $1.6 million and $.9 million has been
capitalized on construction projects for 1997, 1998 and 1999, respectively.
Revenue Recognition -- The Predecessor Companies recognize revenues on
sales of natural gas and petroleum products in the period of delivery and
transportation revenues in the period service is provided. An allowance for
doubtful accounts is established based on agings of accounts receivable and the
credit worthiness of our customers. Bad debt expense and writeoffs for each year
presented are not significant. A reserve of $3 million was established in
connection with the UP Fuels acquisition (see Note 2) over that recorded by UP
Fuels. This amount represents the Predecessor Companies' assessment of the
unrecoverable portion of receivables acquired from UP Fuels.
Equity in Unconsolidated Affiliates -- Investments in 20% to 50% owned
affiliates are accounted for using the equity method. Investments greater than
50% are consolidated unless the Predecessor Companies do not operate these
investments and as a result do not have the ability to exercise control or
control is considered to be temporary.
F-15
<PAGE> 103
DUKE ENERGY FIELD SERVICES CORPORATION AND AFFILIATES
NOTES TO COMBINED FINANCIAL STATEMENTS
YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999--CONTINUED
Derivative Contracts -- The Predecessor Companies use commodity swaps,
futures and option contracts in the conduct of their business. Unrealized gains
and losses associated with activity other than trading are recognized when the
underlying physical transaction is recorded. Trading activity is
marked-to-market and reflected in the statements of income as sales of natural
gas and petroleum products or costs of such.
Significant Customers -- Duke Energy Trading and Marketing, L.L.C. (DETM),
an affiliated company, is a significant customer. Sales to DETM totaled $567
million, $522 million and $684 million during 1997, 1998 and 1999, respectively.
Intangibles Amortization -- Goodwill is amortized over the period of
expected benefit. Goodwill is being amortized on a straight-line basis over 15
years related to the 1991 acquisition of MEGA Natural Gas Company and 20 years
related to the UP Fuels acquisition (see Note 2). Natural gas liquids sales
contracts are amortized on a straight-line basis over the contract lives which
average 15 years.
Environmental Costs -- Environmental expenditures are expensed or
capitalized as appropriate, depending upon the future economic benefit.
Expenditures that relate to an existing condition caused by past operations, and
that do not have future benefit, are expensed. Liabilities for these
expenditures are recorded on an undiscounted basis when environmental
assessments or clean-ups are probable and the costs can be reasonably estimated.
Environmental liabilities at the end of 1998 and 1999 were insignificant.
Gas Imbalance Accounting -- Quantities of natural gas over-delivered or
under-delivered related to imbalance agreements are recorded monthly as
receivables or payables using index prices or the weighted average prices of
natural gas at the plant or system. Generally, these balances are settled with
deliveries of natural gas.
Deferred Income Tax -- The Predecessor Companies follow the asset and
liability method of accounting for income tax. Deferred taxes are provided for
temporary differences in the tax and financial reporting basis of assets and
liabilities. The effect of a change in tax rates on deferred tax assets and
liabilities is recognized in income in the period the rate change is enacted.
Stock Based Compensation -- The Predecessor Companies account for
stock-based compensation using the intrinsic method of accounting. Under this
method, compensation cost, if any, is measured as the excess of the quoted
market price of stock at the date of the grant over the amount an employee must
pay to acquire stock. Restricted stock is recorded as compensation cost over the
requisite vesting period based on the market value on the date of the grant.
Earnings Per Share -- The historical capital structure of the Predecessor
Companies is not representative of the future capital structure of DEFSI (see
Note 2), as all companies were wholly-owned subsidiaries. Accordingly, the
historical net income per share and weighted average number of common shares
outstanding are not shown for any of the periods presented.
Comprehensive Income -- The Predecessor Companies' only item of other
comprehensive income is foreign currency translation.
Recently Issued Accounting Pronouncements -- In June 1998, the Financial
Accounting Standards Board issued Statement of Financial Accounting Standards
No. 133, "Accounting for Derivative Instruments and Hedging Activities" (SFAS
133). SFAS 133 establishes standards for derivative instruments, including
certain derivative instruments embedded in other contracts (collectively
referred to as derivatives) and for hedging activities. SFAS 133 requires that
an entity recognize all derivatives as either assets or liabilities in the
statement of financial position and measure those instruments at fair value. If
certain conditions are met, a derivative may be specifically designated as (a) a
hedge of the exposure to changes in the fair value of a recognized asset or
liability or an unrecognized firm commitment, (b) a hedge of the exposure to
variable cash flows of a forecasted transaction, or (c) a hedge of the foreign
currency exposure of a net investment in a
F-16
<PAGE> 104
foreign operation, an unrecognized firm commitment, an available-for-sale
security, or a foreign-currency-denominated forecasted transaction. The
accounting for changes in the fair value of a derivative (gains and losses)
depends on the intended use of the derivative and the resulting designation. The
Predecessor Companies are required to adopt SFAS 133 on January 1, 2001. The
Predecessor Companies have not completed the process of evaluating the impact
that will result from adopting SFAS 133.
2. BUSINESS COMBINATIONS/DISPOSITIONS
In March 1998, the Predecessor Companies sold a fractionator to TEPPCO
Colorado, L.L.C., an indirect, wholly-owned subsidiary of TEPPCO Partners, L.P.
(TEPPCO), of which Duke Energy, through an indirect, wholly-owned subsidiary,
has an equity interest of approximately 18%. The fractionator was sold for $40
million and the Predecessor Companies realized a gain of approximately $38
million.
On March 31, 1999, the Predecessor Companies acquired the assets and
assumed certain liabilities of Union Pacific Fuels, Inc. (UP Fuels), a
wholly-owned subsidiary of Union Pacific Resources Company (UPR), for a total
purchase price of $1.359 billion. The acquisition was accounted for under the
purchase method of accounting, and the assets and liabilities and results of
operations of UP Fuels have been consolidated in the Predecessor Companies'
financial statements since the date of purchase. The purchase price has been
allocated to the assets acquired and liabilities assumed based on estimated fair
value, as follows:
<TABLE>
<CAPTION>
(IN THOUSANDS)
<S> <C>
Property, plant and equipment...................... $1,046,316
Partnerships and other joint venture investments... 120,544
Natural gas liquids sales contracts................ 107,771
Goodwill........................................... 71,648
Gas marketing...................................... 104,843
Deferred tax asset................................. 10,200
Net working capital................................ (8,207)
Environmental and other liabilities................ (94,018)
----------
Net.............................................. $1,359,097
==========
</TABLE>
The gas marketing component of UP Fuels was immediately transferred to an
affiliate of Duke Energy after the acquisition at the above fair value. Revenues
and net income for 1998 on a pro forma basis would have increased $1.4 billion
and $54.9 million, respectively, if the acquisition had occurred on January 1,
1998. Revenues and net income for 1999 on a pro forma basis would have increased
$298 million and $2.8 million, respectively, if the acquisition had occurred on
January 1, 1999.
3. INVENTORIES
A summary of inventories by category follows:
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1998 1999
------- -------
(IN THOUSANDS)
<S> <C> <C>
Gas held for resale......................................... $13,202 $18,114
NGLs........................................................ 5,962 18,211
Materials and supplies...................................... 4,549 2,376
------- -------
Total inventories................................. $23,713 $38,701
======= =======
</TABLE>
F-17
<PAGE> 105
4. PROPERTY, PLANT AND EQUIPMENT
A summary of property, plant and equipment by classification follows:
<TABLE>
<CAPTION>
DECEMBER 31,
DEPRECIATION -----------------------
RATES 1998 1999
------------ ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Gathering...................................... 4% - 6% $ 923,350 $1,231,050
Processing..................................... 4% 416,572 1,197,993
Transmission................................... 4% 251,079 413,633
Underground storage............................ 2% - 5% 79,875 73,958
General plant.................................. 20% - 33% 36,214 37,614
Construction work in progress.................. 56,504 51,262
---------- ----------
Total property, plant and
equipment.......................... $1,763,594 $3,005,510
========== ==========
</TABLE>
5. INVESTMENTS IN AFFILIATES
The Predecessor Companies have investments in the following businesses
accounted for using the equity method:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
OWNERSHIP 1998 1999
--------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Dauphin Island Gathering Partners................... 37.28% $ 96,869 $ 99,878
Mont Belvieu I...................................... 20.00% 40,440
Mobile Bay Processing Partners...................... 28.81% 30,166 35,906
Black Lake Pipeline................................. 50.00% 35,641
Sycamore Gas System General Partnership............. 48.45% 19,344 21,985
Main Pass Oil Gathering............................. 33.33% 15,762 16,967
Ferguson-Burleson................................... 55.00% 27,531
Other affiliates.................................... Various 12,406 54,141
-------- --------
174,547 332,489
Westana Gathering Company........................... 50.00% 13,391 15,246
-------- --------
Total investments in affiliates........... $187,938 $347,735
======== ========
</TABLE>
Dauphin Island Gathering Partners -- Dauphin Island Gathering Partners is a
partnership which owns the Dauphin Island Gathering system and the Main Pass Gas
Gathering system, which are natural gas gathering systems in the Gulf of Mexico.
Mont Belvieu I -- Mont Belvieu I operates a 200 MBbl/d fractionation
facility in the Mont Belvieu, Texas Market Center.
Mobile Bay Processing Partners -- Mobile Bay Processing Partners is a
partnership formed to engage in the financing, ownership, construction and
operation of one or more natural gas processing facilities onshore in Mobile
County, Alabama.
Black Lake Pipeline -- Black Lake Pipeline owns a 317 mile long NGL
pipeline, with a current capacity of approximately 40 MBbl/d. The pipeline
receives NGLs from a number of gas plants in Louisiana and Texas. The NGLs are
transported to Mont Belvieu fractionators.
Sycamore Gas System General Partnership -- Sycamore Gas System General
Partnership is a partnership formed for the purpose of constructing, owning and
operating a gas gathering and compression system in Carter County, Oklahoma.
F-18
<PAGE> 106
Main Pass Oil Gathering -- Main Pass Oil Gathering is a joint venture whose
primary operation is a crude oil gathering pipeline system of 81 miles in the
Main Pass East and Viosca Knoll Block areas in the Gulf of Mexico.
Ferguson-Burleson -- Ferguson-Burleson operates two independent gas
gathering systems, rich and lean, that are interconnected. The rich gas system
is comprised of over 1,450 miles of gathering lines serving six counties in
South Central Texas. The lean gas system consists of approximately 100 miles of
pipelines in two counties in South Central Texas. We do not operate or control
Ferguson-Burleson.
Equity in earnings amounted to the following for the years ended December
31:
<TABLE>
<CAPTION>
1997 1998 1999
------ ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Dauphin Island Gathering Partners........................ $4,250 $ 7,234 $ 5,974
Mont Belvieu I........................................... 440
Mobile Bay Processing Partners........................... 65 2,307
Black Lake Pipeline...................................... 1,141
Sycamore Gas System General Partnership.................. 261 142
Main Pass Oil Gathering.................................. 1,665 2,598 3,638
Ferguson-Burleson........................................ 5,600
Other affiliates......................................... 3,062 1,279 1,921
------ ------- -------
8,977 11,437 21,163
Westana Gathering Company................................ 807 409 1,339
------ ------- -------
Total equity earnings.......................... $9,784 $11,846 $22,502
====== ======= =======
</TABLE>
Distributions in excess of earnings were $958 thousand, $3.2 million and
$9.5 million in 1997, 1998 and 1999, respectively.
In connection with the Combination, the Predecessor Companies' interest in
Westana Gathering Company was sold in February 2000. Proceeds and loss on sale
approximated $12 million and $4 million, respectively.
The following summarizes combined financial information of unconsolidated
affiliates excluding Westana for the years ended December 31:
<TABLE>
<CAPTION>
1997 1998 1999
------- -------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Income statement:
Operating revenues................................. $54,898 $ 61,618 $ 452,118
Operating expenses................................. 34,281 36,173 374,079
Net income......................................... 21,318 27,878 55,606
Balance sheet:
Current assets..................................... $ 57,926 $ 119,506
Noncurrent assets.................................. 388,562 761,270
Current liabilities................................ (25,671) (113,121)
Noncurrent liabilities............................. (8,094) (14,853)
-------- ---------
Net assets................................. $412,723 $ 752,802
======== =========
</TABLE>
F-19
<PAGE> 107
6. TRANSACTIONS WITH AFFILIATES
A summary of transactions with affiliates included in the combined
statements of income follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------
1997 1998 1999
-------- -------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Sales of natural gas and petroleum products......... $567,800 $536,300 $ 696,700
Natural gas and petroleum products purchased........ 48,900 79,600 128,600
Transportation revenue.............................. 6,400 2,700
Operating expenses -- Billed to affiliates(1)....... 4,200 7,200
General and administrative expenses(1):
Billed to affiliates.............................. 1,200 502
Billed from affiliates............................ 11,700 12,100 19,100
Interest expense.................................... 60,100 60,100 53,900
</TABLE>
--------------------
(1) Operating, general and administrative expenses are allocated to
affiliates based on cost.
As of December 31, 1998 and 1999, the Predecessor Companies had a $101.6
million note payable to Duke Energy, scheduled to mature in 2004 bearing
interest at 8.5%. Additionally, as of December 31, 1999, the Predecessor
Companies have a $540 million note payable to Duke Energy, scheduled to mature
December 31, 2000 bearing interest at prime (8.5% at December 31, 1999),
adjusted quarterly, and a $44.3 million and $4.6 million note payable to Duke
Energy, payable on demand and bearing interest at the Canadian Prime Rate (6.5%
at December 31, 1999), plus fifty basis points, adjusted quarterly.
Intercompany advances do not bear interest. Advances are carried as open
accounts and are not segregated between current and non-current amounts.
Increases and decreases in advances result from the movement of funds to provide
for operations, capital expenditures, and debt payments of Duke Energy and its
subsidiaries. In addition, current income tax balances are recorded in these
accounts. Average intercompany advances payable approximated $117,287, $203,846
and $1,409,980 for 1997, 1998 and 1999 respectively.
Duke Energy supplies the Company with various staff and support services,
including information technology products and services, payroll, employee
benefits, corporate insurance, cash management, ad valorem taxes, treasury and
legal functions. These expenditures are allocated to the subsidiaries using a
cost based method of allocation. Management believes the allocation is
reasonable and estimates that such costs approximate the costs for such services
that would have been incurred on a stand alone basis.
See Notes 5 and 12 for discussion of other specific transactions with
affiliates.
7. INCOME TAXES
The Predecessor Companies' taxable income is included in a consolidated
federal income tax return with Duke Energy. Therefore, income tax has been
provided in accordance with Duke Energy's tax allocation policy, which requires
subsidiaries to calculate federal income tax as if separate taxable income, as
defined, was reported. Foreign income taxes are not material and therefore are
not shown separately.
F-20
<PAGE> 108
Income tax as presented in the combined statements of income is summarized
as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------
1997 1998 1999
------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Current:
Federal........................................... $(1,012) $(36,142) $(46,429)
State............................................. (1,431) (5,884) (8,843)
------- -------- --------
Total current............................. (2,443) (42,026) (55,272)
------- -------- --------
Deferred:
Federal........................................... 30,800 38,961 73,201
State............................................. 5,023 6,354 13,100
------- -------- --------
Total deferred............................ 35,823 45,315 86,301
------- -------- --------
Total income tax expense............................ $33,380 $ 3,289 $ 31,029
======= ======== ========
</TABLE>
Total income tax expense differs from the amount computed by applying the
federal income tax rate to earnings before income tax. The reasons for this
difference are as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------
1997 1998 1999
------- ------ -------
(IN THOUSANDS)
<S> <C> <C> <C>
Federal income tax rate................................ 35.0% 35.0% 35.0%
======= ====== =======
Income tax, computed at the statutory rate............. $29,616 $1,861 $26,025
Adjustments resulting from:
State income tax, net of federal income tax effect... 2,962 186 2,863
Non-deductible amortization and other................ 802 1,242 2,141
------- ------ -------
Total income tax............................. $33,380 $3,289 $31,029
======= ====== =======
</TABLE>
The tax effects of temporary differences that resulted in deferred income
tax assets and liabilities, and a description of the significant items that
created these differences are as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------
1997 1998 1999
--------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Alternative minimum tax credit carryforward....... $ 20,400 $ 20,400 $ --
Other............................................. 2,300 500 7,600
--------- --------- ---------
Total deferred income tax assets........ 22,700 20,900 7,600
--------- --------- ---------
Property, plant, and equipment.................... (160,200) (209,507) (275,008)
Deferred charges.................................. (900) (15,000) (15,300)
State deferred income tax, net of federal tax
effect.......................................... (14,300) (18,400) (25,600)
--------- --------- ---------
Total deferred income tax liabilities... (175,400) (242,907) (315,908)
--------- --------- ---------
Net deferred income tax liability................. $(152,700) $(222,007) $(308,308)
========= ========= =========
</TABLE>
8. BUSINESS SEGMENTS AND RELATED INFORMATION
The Predecessor Companies operate in two principal business segments as
follows: (1) natural gas gathering, processing, transportation, marketing and
storage, and (2) natural gas liquids fractionation, transportation, marketing
and trading. These segments are separately monitored by management for
performance against its internal forecast and are consistent with the
Predecessor Companies internal financial
F-21
<PAGE> 109
reporting package. These segments have been identified based upon the differing
products and services, regulatory environment and the expertise required for
these operations. Margin, earnings before interest, taxes, depreciation and
amortization (EBITDA) and earnings before interest and taxes (EBIT) are the
performance measures utilized by management to monitor the business of each
segment. The accounting policies for the segments are the same as those
described in Note 1. Foreign operations are not material and are therefore not
separately identified.
The following table sets forth the Predecessor Companies' segment
information as of and for the years ended December 31, 1997, 1998 and 1999.
<TABLE>
<CAPTION>
1997 1998 1999
---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Operating revenues:
Natural gas............................................ $1,683,483 $1,497,901 $2,483,197
NGLs................................................... 423,680 309,380 1,365,577
Intersegment(a)........................................ (305,331) (222,961) (390,464)
---------- ---------- ----------
Total operating revenues....................... 1,801,832 1,584,320 3,458,310
---------- ---------- ----------
Margin:
Natural gas............................................ 334,129 243,787 459,843
NGLs................................................... (386) 2,404 33,170
---------- ---------- ----------
Total margin................................... 333,743 246,191 493,013
---------- ---------- ----------
Other operating costs:
Natural gas............................................ 104,072 79,797 182,062
NGLS................................................... -- -- 1,707
Corporate.............................................. 36,023 44,946 73,685
---------- ---------- ----------
Total other operating costs.................... 140,095 124,743 257,454
---------- ---------- ----------
Equity in earnings of unconsolidated affiliates:
Natural gas............................................ 9,784 11,845 20,917
NGLs................................................... 1,585
---------- ---------- ----------
Total equity in earnings of unconsolidated
affiliates................................... 9,784 11,845 22,502
---------- ---------- ----------
EBITDA(b):
Natural gas............................................ 239,841 175,835 298,698
NGLs................................................... (386) 2,404 33,048
Corporate.............................................. (36,023) (44,946) (73,685)
---------- ---------- ----------
Total EBITDA................................... 203,432 133,293 258,061
---------- ---------- ----------
Depreciation and amortization:
Natural gas............................................ 65,593 73,470 119,425
NGLs................................................... 9,073
Corporate.............................................. 2,108 2,103 2,290
---------- ---------- ----------
Total depreciation and amortization............ 67,701 75,573 130,788
---------- ---------- ----------
EBIT
Natural gas............................................ 174,248 102,365 179,273
NGLs................................................... (386) 2,404 23,975
Corporate.............................................. (38,131) (47,049) (75,975)
---------- ---------- ----------
Total EBIT..................................... 135,731 57,720 127,273
---------- ---------- ----------
</TABLE>
F-22
<PAGE> 110
<TABLE>
<CAPTION>
1997 1998 1999
---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Corporate interest expense............................... 51,113 52,403 52,915
---------- ---------- ----------
Income before income taxes:
Natural gas............................................ 174,248 102,365 179,273
NGLs................................................... (386) 2,404 23,975
Corporate.............................................. (89,244) (99,452) (128,890)
---------- ---------- ----------
Total income before income taxes............... $ 84,618 $ 5,317 $ 74,358
---------- ---------- ----------
Total assets
Natural gas............................................ 1,505,111 2,754,447
NGLs................................................... 5,137 225,702
Corporate(c)........................................... 260,590 491,686
---------- ----------
Total assets................................... $1,770,838 $3,471,835
========== ==========
</TABLE>
- ---------------
(a) Intersegment sales represent sales of NGLs from the Natural Gas segment to
the NGLs segment at either index prices or weighted average prices of NGLs.
Both measures of intersegment sales are effectively based on current
economic market conditions.
(b) EBITDA consists of income from continuing operations before interest
expense, income tax expense, and depreciation and amortization expense, less
interest income. EBITDA is not a measurement presented in accordance with
generally accepted accounting principles. You should not consider it in
isolation from or as a substitute for net income or cash flow measures
prepared in accordance with generally accepted accounting principles or as a
measure of our profitability or liquidity. EBITDA is included as a
supplemental disclosure because it may provide useful information regarding
our ability to service debt and to fund capital expenditures.
(c) Includes items such as unallocated working capital, intercompany accounts
and intangible and other assets.
9. RISK MANAGEMENT AND FINANCIAL INSTRUMENTS
The Predecessor Companies' operations are subject to the volatility of
commodity prices, particularly that of NGL prices. The Predecessor Companies
manage exposure to risk from existing contractual commitments through forward
contracts, futures and over-the-counter swap agreements (collectively,
"commodity instruments"). Energy commodity forward contracts involve physical
delivery of an energy commodity. Energy commodity futures involve the buying or
selling of natural gas, crude oil (used to hedge natural gas liquids prices) and
natural gas liquids at a fixed price. Over-the-counter swap agreements require
the Predecessor Companies to receive or make payments based on the difference
between a specified price and the actual price of the underlying commodity.
Commodity Instruments -- Trading -- The Predecessor Companies, through a
wholly-owned subsidiary, engage in the trading of natural gas liquids and crude
oil commodity instruments, and therefore experience net open positions. The
Predecessor Companies manage open positions with policies which limit its
exposure to market risk and require daily reporting to management of potential
financial exposure. The weighted-average life of the Predecessor Companies
commodity risk portfolio is approximately 2 months at December 31, 1999. During
1999 net gains of $9.7 million were recognized from trading natural gas liquids
and crude oil derivatives. The Predecessor Companies were not trading natural
gas liquids nor crude oil commodity instruments prior to 1999. As of December
31, 1999, the absolute notional contract quantity of
F-23
<PAGE> 111
natural gas liquids and crude oil commodity derivatives held for trading
purposes was 5,826,000 and 6,486,500 barrels, respectively.
<TABLE>
<CAPTION>
1999
---------------------
ASSETS LIABILITIES
------- -----------
(IN THOUSANDS)
<S> <C> <C>
Fair value at December 31................................... $10,461 $10,079
Average fair value for the year............................. 8,588 8,359
</TABLE>
Commodity Derivatives -- Non-Trading -- At December 31, 1998 and 1999, the
Predecessor Companies held or issued derivatives that reduce the Predecessor
Companies' exposure to market fluctuations in the price and transportation costs
of natural gas and natural gas liquids. The Predecessor Companies' market
exposure arises from inventory balances and fixed-price purchase and sale
commitments that extend for periods of up to 10 years. Futures and swaps are
used to manage and hedge prices and location risk related to these market
exposures. Futures and swaps are also used to manage margins on offsetting
fixed-price purchase or sale commitments for physical quantities of natural gas
and natural gas liquids.
The gains, losses and costs related to those commodity derivatives that
qualify as a hedge are not recognized until the underlying physical transaction
occurs. At December 31, 1998 and 1999, the Predecessor Companies unrealized net
gains (losses) related to commodity derivative hedges was $1.8 million and
$(63.5) million, respectively. As of December 31, 1998 and 1999, the absolute
notional contract quantity of commodity derivatives held for non-trading
purposes was 10.92 and 7.8 billion cubic feet (Bcf) of natural gas and 59,000
and 32,764,000 barrels of crude oil, respectively. Hedging losses in 1999
totalled approximately $34 million.
Market and Credit Risk -- Most futures and swaps are conducted through
either DETM or Duke Energy Merchants (DEM). Under these arrangements the
Predecessor Companies do not have margin requirements.
New York Mercantile Exchange (Exchange) traded futures contracts are
guaranteed by the Exchange and have nominal credit risk. On all other
transactions previously described, the Predecessor Companies are exposed to
credit risk in the event of nonperformance by the counterparties. For each
counterparty, the Predecessor Companies analyze the financial condition prior to
entering into an agreement. The change in market value of exchange-traded
futures contracts other than those conducted through either DETM or DEM require
daily cash settlement in margin accounts with brokers. Swap contracts are
generally settled at the expiration of the contract term and may be subject to
margin requirements with the counterparty.
Gathering, processing, and transportation services are provided to
producers, refiners, and a variety of wholesale and retail customers located in
the Mid-Continent, Gulf Coast and Rocky Mountain areas as well as in Canada. The
principal markets for natural gas marketing services are industrial end-users
and utilities located throughout the United States. The Predecessor Companies
have a concentration of receivables due from gas and electric utilities and
their affiliates, as well as industrial customers throughout the United States.
These concentrations of customers may affect the Predecessor Companies' overall
credit risk in that certain customers may be similarly affected by changes in
economic, regulatory or other factors. Trade receivables are generally not
collateralized; however, the Predecessor Companies analyze customers' financial
condition prior to extending credit, establish credit limits and monitor the
appropriateness of these limits on an ongoing basis.
10. ESTIMATED FAIR VALUE OF FINANCIAL INSTRUMENTS
The following disclosure of the estimated fair value of financial
instruments is made in accordance with the requirements of SFAS No. 107,
"Disclosures about Fair Value of Financial Instruments." The estimated fair
value amounts have been determined by the Predecessor Companies, using available
market information and appropriate valuation methodologies. However,
considerable judgment is necessarily required in interpreting market data to
develop the estimates of fair value. Accordingly, the estimates presented herein
are not necessarily indicative of the amounts that the Predecessor Companies
could realize in a current market
F-24
<PAGE> 112
exchange. The use of different market assumptions and/or estimation
methodologies may have a material effect on the estimated fair value amounts.
<TABLE>
<CAPTION>
DECEMBER 31, 1998 DECEMBER 31, 1999
--------------------------- -------------------------
CARRYING ESTIMATED FAIR CARRYING ESTIMATED FAIR
AMOUNT VALUE AMOUNT VALUE
---------- -------------- -------- --------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
Cash and cash equivalents.............. $ 168 $ 168 $ 792 $ 792
Accounts receivable.................... 240,114 240,114 464,133 464,133
Notes receivable....................... 15,096 15,294 21,866 22,582
Accounts payable....................... 217,182 217,182 450,205 450,205
Advances, net -- parents............... 334,057 334,057 1,579,475 1,579,475
Notes payable.......................... 641,600 601,606 690,480 655,843
Natural gas, NGL and oil hedge
contracts............................ -- 1,800 -- (63,500)
</TABLE>
The fair value of cash and cash equivalents, accounts receivable, and
accounts payable are not materially different from their carrying amounts
because of the short-term nature of these instruments or the stated rates
approximating market rates.
Notes receivable is carried in the accompanying balance sheet at cost. Fair
value has been estimated using discounted cash flows assuming current interest
rates, similar credit risk and maturities.
Related party advances and notes payable are carried at cost. Fair value
has been estimated using discounted cash flows of maturities of five years and
interest rates of 8.0%.
The estimated fair value of the natural gas, NGL and oil hedge contracts is
determined by multiplying the difference between the quoted termination prices
for natural gas, NGL and oil and the hedge contract prices by the quantities
under contract.
11. COMMITMENTS AND CONTINGENT LIABILITIES
The midstream natural gas industry has seen an increase in the number of
class action lawsuits involving royalty disputes, mismeasurement and mispayment
allegations. Although the industry has seen these types of cases before, they
were typically brought by a single plaintiff or small group of plaintiffs. Many
of these cases are now being brought as class actions. The Predecessor Companies
are currently named as defendants in certain of these cases. Management believes
the Predecessor Companies have meritorious defenses to these cases, and
therefore will continue to defend them vigorously. However, these class actions
can be costly and time consuming to defend.
The Predecessor Companies are subject to federal, state and local
regulations regarding air and water quality, hazardous and solid waste disposal
as well as other environmental matters. The Predecessor Companies are not aware
of any material violations and have accrued for the known remediation that is in
process. In connection with the UP Fuels acquisition, the Company analyzed water
and soil samples surrounding UP Fuels facilities and identified necessary
remedial actions. The Company transferred this obligation to a third party for a
payment of approximately $48 million. Generally, environmental liabilities are
not expected to be recoverable from insurance or other third parties.
The Predecessor Companies utilize assets under operating leases in several
areas of operation. Combined rental expense amounted to $8.1 million, $8.2
million and $11.8 million in 1997, 1998 and 1999, respectively. Minimum rental
payments under the Predecessor Companies' various operating leases for the years
2000 through 2004 are $6.1, $6.0, $5.0, $5.0 and $4.3 million, respectively.
Thereafter, payments aggregate $15.4 million through 2011.
F-25
<PAGE> 113
12. STOCK-BASED COMPENSATION, PENSION AND OTHER BENEFITS
Under Duke Energy's 1999 Stock Incentive Plan, stock options of Duke
Energy's common stock may be granted to key employees of the Predecessor
Companies. Under the plan, the exercise price of each option granted equals the
market price of Duke Energy's common stock on the date of grant. Vesting periods
range from one to five years with a maximum exercise term of ten years. The
following tables set forth information regarding options to purchase Duke
Energy's common stock granted to employees of the Predecessor Companies.
Stock Option Activity
<TABLE>
<CAPTION>
WEIGHTED
OPTIONS AVERAGE
(IN THOUSANDS) EXERCISE PRICE
-------------- --------------
<S> <C> <C>
Outstanding at December 31, 1996............................ 254 $20
Granted................................................... 25 44
Exercised................................................. (54) 18
Forfeited................................................. 0 0
----- ---
Outstanding at December 31, 1997............................ 225 23
Granted................................................... 279 55
Exercised................................................. (70) 21
Forfeited................................................. 0 0
----- ---
Outstanding at December 31, 1998............................ 434 44
Granted................................................... 878 53
Exercised................................................. (33) 25
Forfeited................................................. (18) 55
----- ---
Outstanding at December 31, 1999............................ 1,261 51
</TABLE>
Stock Options at December 31, 1999
<TABLE>
<CAPTION>
OUTSTANDING EXERCISABLE
---------------------------------------- -------------------------
WEIGHTED WEIGHTED WEIGHTED
RANGE OF AVERAGE AVERAGE AVERAGE
EXERCISE NUMBER REMAINING EXERCISE EXERCISE
PRICES (IN THOUSANDS) LIFE (YEARS) PRICE NUMBER PRICE
-------- -------------- ------------ -------- THOUSA --------
<S> <C> <C> <C> <C> <C>
$10 to $14 16 1.5 $11 16 $ 11
$15 to $20 52 3.9 18 52 18
$21 to $25 25 5.1 23 25 23
$26 to $31 10 6.1 27 10 27
$42 to $50 474 9.8 49 22 44
$55 to $60 684 8.8 56 66 55
----- ---
Total 1,261 191 34
</TABLE>
There were 29,646 and 82,050 options exercisable at December 31, 1997 and
1998 with a weighted average exercise price of $21 and $22 per option.
No compensation cost related to the stock options has been recorded as the
intrinsic method of accounting is used and the exercise price of each option
granted equaled the market price on the date of grant. The weighted average fair
value of options granted was $10.00, $9.00 and $10.00 per option during 1997,
1998 and 1999, respectively. The fair value of each option granted was estimated
on the date of grant using the Black-Scholes option-pricing model. The
weighted-average assumptions for option-pricing in 1997, 1998 and 1999 were:
stock dividend yield of 3.5%, 4.2% and 4.1%, expected stock price volatility of
20.7%, 15.1% and 18.8% and risk-free interest rates of 6.5%, 5.6% and 5.9%,
respectively. The expected option life for 1997, 1998 and 1999 was seven years.
Stock-based compensation expense calculated using the Black-Scholes option-
F-26
<PAGE> 114
pricing model for 1997, 1998 and 1999 would have been $0.1 million, $0.8 million
and $2.5 million, respectively and net income would have been $51.1 million,
$1.5 million and $41.8 million, respectively.
In addition, Duke Energy granted restricted shares of Duke Energy common
stock to key employees of the Predecessor Companies under Duke Energy stock
incentive plans. Grants under the plans vest over periods ranging from one to
seven years. In 1997 and 1999 Duke Energy awarded 2,817 shares (fair value at
grant dates of approximately $168 thousand) and 36,300 shares (fair value at
grant dates of approximately $2 million) to key employees of the Predecessor
Companies. No restricted shares were awarded in 1998. Compensation expense for
the stock grants is charged to the earnings of the Predecessor Companies over
the vesting period, and amounted to approximately $168 thousand, $0 and $488
thousand in 1997, 1998 and 1999, respectively.
Duke Energy has, and the Predecessor Companies' participate in, a
non-contributory trustee pension plan which covers eligible employees with a
minimum of one year vesting service. The plan provides pension benefits for
eligible employees of the Predecessor Companies that are generally based on the
employee's actual eligible earnings and accrued interest. Through December 31,
1998, for certain eligible employees, a portion of their benefit may also be
based on the employee's years of benefit accrual service and highest average
eligible earnings. Effective January 1, 1999, the benefit formula under the plan
for all eligible employees was changed to a cash balance formula. Duke Energy's
policy is to fund amounts, as necessary, on an actuarial basis to provide assets
sufficient to meet benefits to be paid to plan members. Aspects of the plan
specific to the Predecessor Companies is as follows:
COMPONENTS OF NET PERIODIC PENSION COSTS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------
1997 1998 1999
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Service cost................................................ $ 950 $ 911 $ 1,280
Interest cost............................................... 681 794 1,375
Expected return on plan assets.............................. (1,227) (1,391) (2,307)
Amortization of transition (asset)/liability................ (86) (86) (85)
Amortization of prior service cost.......................... 29 43 34
Amortization of (gains)/losses.............................. 6
Settlement gain............................................. (40)
------- ------- -------
Net periodic pension cost................................... $ 347 $ 231 $ 303
======= ======= =======
</TABLE>
RECONCILIATION OF FUNDED STATUS TO PRE-FUNDED PENSION COSTS
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1998 1999
------- -------
(IN THOUSANDS)
<S> <C> <C>
CHANGE IN BENEFIT OBLIGATION
Benefit obligation at beginning of year..................... $ 9,219 $14,651
Service cost................................................ 911 1,280
Interest cost............................................... 794 1,375
Intercompany transfers...................................... 802 8,519
Benefits paid............................................... (250) (190)
Actuarial (gains)/losses.................................... 3,261 (3,789)
Plan amendments............................................. (86)
------- -------
Benefit obligation at end of year........................... $14,651 $21,846
======= =======
</TABLE>
F-27
<PAGE> 115
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------
1998 1999
------- -------
(IN THOUSANDS)
<S> <C> <C>
CHANGE IN PLAN ASSETS
Fair value of plan assets at beginning of year.............. $16,868 $20,211
Intercompany transfers...................................... 743 8,519
Actual return on plan assets................................ 2,580 4,985
Employer contributions...................................... 270 302
Benefits paid............................................... (250) (190)
------- -------
Fair value of plan assets at end of year.................... $20,211 $33,827
======= =======
Funded status............................................... $ 5,563 $11,982
Unrecognized net transition asset........................... (510) (425)
Unrecognized prior service cost............................. 302 268
Unrecognized gains.......................................... (794) (7,267)
------- -------
Pre-funded pension costs.................................... $ 4,561 $ 4,558
======= =======
</TABLE>
Intercompany transfers relate to benefit obligations and plan assets
associated with employees transferring between the Predecessor Companies and
other Duke Energy affiliates.
ASSUMPTIONS USED FOR PENSION BENEFIT ACCOUNTING
<TABLE>
<CAPTION>
YEARS ENDED
DECEMBER 31,
--------------------
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Discount rate............................................... 7.25% 6.75% 7.50%
Rate of increase in compensation levels..................... 4.75% 4.67% 4.50%
Expected long-term rate of return on plan assets............ 9.25% 9.25% 9.25%
</TABLE>
The Predecessor Companies also sponsor an employee savings plan which
covers substantially all employees. During 1997, 1998 and 1999, the Predecessor
Companies expensed plan contributions of $1.6 million, $1.8 million and $3.6
million, respectively.
The Predecessor Companies' postretirement benefits, in conjunction with
Duke Energy, consist of certain health care and life insurance benefits for
certain retired employees. Postretirement benefits costs were not material in
1997, 1998 and 1999.
F-28
<PAGE> 116
DUKE ENERGY FIELD SERVICES CORPORATION
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
1999 2000
------------ -----------
(UNAUDITED)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents................................. $ 792 $ 172
Accounts receivable:
Customers, net......................................... 370,139 496,102
Affiliates............................................. 63,927 79,824
Other.................................................. 30,067 29,031
Receivable from parents -- working capital adjustments.... 95,751
Inventories............................................... 38,701 26,877
Notes receivable.......................................... 13,050 8,309
Other..................................................... 1,580 2,710
---------- ----------
Total current assets.............................. 518,256 738,776
PROPERTY, PLANT AND EQUIPMENT, NET.......................... 2,409,385 4,619,169
INVESTMENT IN AFFILIATES.................................... 347,735 275,280
INTANGIBLE ASSETS:
Natural gas liquids sales contracts, net.................. 102,382 103,977
Goodwill, net............................................. 81,946 495,554
OTHER NONCURRENT ASSETS..................................... 12,131 79,536
---------- ----------
TOTAL ASSETS...................................... $3,471,835 $6,312,292
========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
CURRENT LIABILITIES:
Accounts payable:
Trade.................................................. $ 353,977 $ 561,806
Affiliates............................................. 62,370 75,252
Other.................................................. 33,858 30,765
Accrued taxes other than income........................... 15,653 19,617
Advances, net............................................. 1,579,475 --
Distributions payable -- Parents.......................... -- 2,744,319
Notes payable -- affiliates............................... 588,880 --
Other..................................................... 6,372 30,927
---------- ----------
Total current liabilities......................... 2,640,585 3,462,686
DEFERRED INCOME TAXES....................................... 308,308 979,013
NOTE PAYABLE TO PARENT...................................... 101,600 --
OTHER LONG TERM LIABILITIES................................. 34,871 33,703
MINORITY INTEREST........................................... -- 521,705
STOCKHOLDER'S EQUITY:
Common Stock.............................................. 1 1
Paid-in capital........................................... 213,091 1,115,241
Retained earnings......................................... 173,091 199,943
Other comprehensive income................................ 288 --
---------- ----------
Total stockholder's equity........................ 386,471 1,315,185
---------- ----------
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY.................. $3,471,835 $6,312,292
========== ==========
</TABLE>
See Notes to Consolidated Financial Statements.
F-29
<PAGE> 117
DUKE ENERGY FIELD SERVICES CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
MARCH 31, 1999 AND 2000
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
---------------------------------
MARCH 31, 1999 MARCH 31, 2000
--------------- ---------------
<S> <C> <C>
OPERATING REVENUES:
Sales of natural gas and petroleum products............... $305,152 $1,415,465
Transportation, storage and processing.................... 29,845 35,746
-------- ----------
Total operating revenues.......................... 334,997 1,451,211
-------- ----------
COSTS AND EXPENSES:
Natural gas and petroleum products........................ 272,530 1,278,511
Operating and maintenance................................. 29,096 49,039
Depreciation and amortization............................. 20,029 37,899
General and administrative................................ 16,112 29,701
Net (gain) loss on sale of assets......................... (42) 4,139
-------- ----------
Total costs and expenses.......................... 337,725 1,399,289
-------- ----------
OPERATING INCOME (LOSS)..................................... (2,728) 51,922
EQUITY IN EARNINGS OF UNCONSOLIDATED AFFILIATES............. 3,286 6,759
-------- ----------
EARNINGS BEFORE INTEREST AND TAXES.......................... 558 58,681
INTEREST EXPENSE............................................ (12,445) (14,477)
-------- ----------
INCOME (LOSS) BEFORE INCOME TAXES........................... (11,887) 44,204
INCOME TAX EXPENSE (BENEFIT)................................ (3,366) 17,352
-------- ----------
NET INCOME (LOSS)........................................... $ (8,521) $ 26,852
======== ==========
</TABLE>
See notes to consolidated financial statements.
F-30
<PAGE> 118
DUKE ENERGY FIELD SERVICES CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S EQUITY
THREE MONTH PERIOD ENDED MARCH 31, 2000
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONAL OTHER
COMMON PAID-IN RETAINED COMPREHENSIVE
STOCK CAPITAL EARNINGS INCOME TOTAL
------ ----------- -------- ------------- -----------
<S> <C> <C> <C> <C> <C>
Balance, January 1, 2000............. $ 1 $ 213,091 $173,091 $ 288 $ 386,471
Combination at March 31,
2000 -- see Note 2
Contribution of TEPPCO general
partner interest.............. (36,920) (36,920)
Contribution of notes and
advances payable.............. 2,285,294 (288) 2,285,006
Contributions of GPM assets and
liabilities................... 1,919,800 1,919,800
Distributions payable........... (2,744,319) (2,744,319)
Reclassification of Minority
Interest...................... (521,705) (521,705)
Net income......................... 26,852 26,852
--- ----------- -------- ----- -----------
Balance, March 31, 2000.............. $ 1 $ 1,115,241 $199,943 $ -- $ 1,315,185
=== =========== ======== ===== ===========
</TABLE>
See notes to consolidated financial statements.
F-31
<PAGE> 119
DUKE ENERGY FIELD SERVICES CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
MARCH 31, 1999 AND 2000
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
------------------------
MARCH 31, MARCH 31,
1999 2000
----------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)......................................... $ (8,521) $ 26,852
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization.......................... 20,029 37,899
Deferred income tax expense............................ 6,780 24,521
Equity in earnings of unconsolidated affiliates........ (3,286) (6,759)
Loss (gain) on sale of assets.......................... (42) 4,139
Net change in operating assets and liabilities:
Accounts receivable.................................. (66,206) 80,530
Inventories.......................................... 1,757 (13,843)
Other current assets................................. 18,625 31,193
Other non-current assets............................. 16,610 3,016
Accounts payable..................................... 51,536 28,225
Other current liabilities............................ (12,914) (10,132)
Other long term liabilities.......................... 0 (19,436)
----------- ---------
Net cash provided by operating activities......... 24,368 186,205
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisitions and other capital expenditures............... (1,443,961) (129,591)
Investment expenditures................................... (21,606) (521)
Investment distributions.................................. 7,379 5,662
Proceeds from sales of assets............................. 0 13,031
----------- ---------
Net cash used in investment activities............ (1,458,188) (111,419)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net increase (decrease) in advances -- parents............ 1,391,328 (75,406)
Proceeds from issuing debt................................ 42,368 0
----------- ---------
Net cash flows provided by (used in) financing
activities...................................... 1,433,696 (75,406)
NET INCREASE IN CASH AND CASH EQUIVALENTS:.................. (124) (620)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD.............. 168 792
----------- ---------
CASH AND CASH EQUIVALENTS, END OF PERIOD.................... $ 44 $ 172
----------- ---------
</TABLE>
See Notes to the Consolidated Financial Statements.
F-32
<PAGE> 120
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 2000
(UNAUDITED)
1. GENERAL
Duke Energy Field Services Corporation (collectively with its consolidated
subsidiaries, the "Company") operates in the midstream natural gas gathering,
marketing and natural gas liquids industry. The Company is an indirect,
wholly-owned subsidiary of Duke Energy Corporation ("Duke Energy"). The Company
operates in the two principal segments of the midstream natural gas industry of
(1) natural gas gathering, processing, transportation, marketing and storage;
and (2) natural gas liquids ("NGLs") fractionation, transportation, marketing
and trading.
The interim consolidated financial statements presented herein should be
read in conjunction with the combined financial statements and notes thereto of
Duke Energy Field Services Corporation and Affiliates. In the opinion of
Management, all adjustments necessary for a fair presentation of the results for
the unaudited interim periods have been made. Except as explicitly noted, these
adjustments consist solely of normal recurring accruals.
2. COMBINATION
On March 31, 2000, the natural gas gathering, processing and natural gas
liquid assets, operations, and subsidiaries of Duke Energy were contributed to
Duke Energy Field Services, LLC ("Field Services LLC"). In connection with the
contribution of assets and subsidiaries at March 31, 2000, notes and advances
payable to Duke Energy were eliminated and contributed to stockholders' equity.
Also on March 31, 2000, Phillips Petroleum Company ("Phillips") contributed its
midstream natural gas gathering, processing and natural gas liquid operations to
Field Services LLC. This contribution and Duke Energy's contribution to Field
Services LLC are referred to as "the Combination". In exchange for the
contributions, the Company received 69.7% of the member interests in Field
Services LLC, with Phillips holding the remaining 30.3% of the outstanding
member interests.
The Combination has been accounted for as a purchase business combination
in accordance with Accounting Principles Board Opinion (APB) No. 16 "Accounting
for Business Combinations". The Phillips assets, net of liabilities, have been
valued at $1,919.8 million. Goodwill of $412.9 million has been recorded
preliminarily for the deferred tax effect of the purchase price allocated to
property, plant and equipment being above the existing tax basis and will be
amortized on a straight-line basis over 20 years. Following is a summary of the
preliminary allocation of purchase price (in millions):
<TABLE>
<S> <C>
Property, plant and equipment............................... $2,073.0
Goodwill.................................................... 412.9
Deferred income taxes....................................... (607.5)
Other assets, net........................................... 41.4
--------
Total purchase price.............................. $1,919.8
========
</TABLE>
The purchase price has not yet been fully allocated to the individual
assets and liabilities acquired. The final allocation will be determined based
on independent appraisals.
In connection with the Combination, the Company has recorded a non-interest
bearing distribution payable to Phillips of $1,219.8 million and a non-interest
bearing distribution payable to Duke Energy of $1,524.5 million.
Working Capital Adjustments -- In connection with the Combination, Duke
Energy and Phillips each will either make contributions to Field Services LLC,
or receive distributions from Field Services LLC so that
F-33
<PAGE> 121
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
each of Duke Energy and Phillips will have contributed to Field Services LLC net
working capital positions equal to zero as of March 31, 2000.
Pro Forma Disclosures: Revenues for the three months ended March 31, 1999
and 2000, on a pro forma basis would have increased $264.9 million and $542.4
million, respectively, and net income for the three months ended March 31, 1999
and 2000, on a pro forma basis would have decreased $8.2 million and increased
$17.0, respectively, if the acquisition of the Phillips midstream business had
occurred at the beginning of the period presented.
TEPPCO General Partner Interest -- On March 31, 2000, and in connection
with the Combination, Duke Energy contributed the general partner interest of
TEPPCO Partners L.P. to Field Services LLC. In connection with the contribution
of the general partner interest in TEPPCO, the Company recorded an investment in
TEPPCO of $2.3 million, recorded $39.2 million in non-current deferred tax
liability, and reduced stockholders' equity by $36.9 million.
TEPPCO is a publicly traded limited partnership that owns and operates a
network of pipelines for refined products and crude oil. The general partner is
responsible for the management and operations of TEPPCO. Through the ownership
of the general partner of TEPPCO, Field Services LLC has the right to receive
from TEPPCO incentive cash distributions in addition to a 2% share of
distributions based on the general partner interest. At TEPPCO's 1999 per unit
distribution level, the general partner received approximately 14% of the cash
distributed by TEPPCO to its partners. Due to the general partner's share of
unit distributions and control exercised through its management of the
partnership, the Company's investment in TEPPCO is accounted for under the
equity method.
3. ACQUISITIONS
Union Pacific Fuels, Inc. -- On March 31, 1999, the Company acquired the
assets and assumed certain liabilities of Union Pacific Fuels, Inc. (UP Fuels),
a wholly-owned subsidiary of Union Pacific Resources Corporation, for a total
purchase price of $1,359 million. The acquisition was accounted for under the
purchase method of accounting, and the assets and liabilities and results of
operations of UP Fuels have been consolidated in the Company's financial
statements since the date of purchase. Revenues and net income for the three
months ended March 31, 1999 on a pro forma basis would have increased $298
million and $3.4 million respectively, if the acquisition of UP Fuels had
occurred on January 1, 1999.
Conoco and Mitchell Assets -- On March 31, 2000, Field Services LLC (funded
by Duke Energy) acquired gathering and processing facilities located in central
Oklahoma from Conoco, Inc. and Mitchell Energy & Development Corp. Field
Services LLC paid cash of $99.5 million, and exchanged its interests in certain
gathering and marketing joint ventures located in southeast Texas having a total
net book value of $42.0 million as consideration for these facilities.
4. AGREEMENTS AND TRANSACTIONS WITH DUKE ENERGY
Services Agreement with Duke Energy -- Effective with the Combination, the
Company entered into a services agreement with Duke Energy ("the Duke Energy
Services Agreement"). Under the Duke Energy Services Agreement, Duke Energy will
provide the Company with various staff and support services, including
information technology products and services, payroll, employee benefits,
corporate insurance, cash management, ad valorem taxes, treasury and legal
functions and shareholder services. These services will be priced on the basis
of a monthly charge approximating market prices. The Duke Energy Services
Agreement expires on December 31, 2000.
Transactions between Duke Energy and the Company -- Through March 31, 2000,
the Company has conducted a series of transactions with Duke Energy in which the
Company has sold a portion of its residue
F-34
<PAGE> 122
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
gas and NGLs to, purchased raw natural gas and other petroleum products from,
and provided gathering and transportation services over its gathering systems
and pipelines to, Duke Energy and its subsidiaries at contractual prices that
have approximated market prices in the ordinary course of the Company's
business. The Company anticipates continuing these transactions in the ordinary
course of business.
5. AGREEMENTS AND TRANSACTIONS WITH PHILLIPS
Services Agreement with Phillips -- Effective with the Combination, the
Company entered into a services agreement with Phillips ("the Phillips Services
Agreement"). Under the Phillips Services Agreement, Phillips will provide the
Company with various staff and support services, including information
technology products and services, cash management, real estate and property tax
services. These services will be priced on a basis of a monthly charge equal to
Phillips' fully-burdened cost of providing the services. The Phillips Services
Agreement expires on December 31, 2000.
Long-Term NGLs Purchases Contract with Phillips -- In connection with the
Combination, the Company has agreed to maintain the NGL Output Purchase and Sale
Agreement ("Phillips NGL Agreement") between Phillips and the midstream natural
gas assets that were contributed to the Company in the Combination. Under the
Phillips NGL Agreement, Phillips 66 Company, a wholly-owned subsidiary of
Phillips, has the right to purchase at index-based prices approximately all NGLs
produced by the processing plants which were acquired by Field Services LLC from
Phillips in the Combination. The Phillips NGL Agreement also grants Phillips 66
Company the right to purchase at index-based prices certain quantities of NGLs
produced at processing plants that are acquired and/or constructed by the
Company in the future in various counties in the Mid-Continent and Permian Basis
regions, and the Austin Chalk area. The primary term of the agreement is
effective until December 31, 2014.
Transactions between Phillips and the Midstream Business Acquired from
Phillips -- Through March 31, 2000, the Phillips' businesses (the "Phillips
Combined Subsidiaries") that owned the midstream natural gas assets that were
contributed to the Company in the Combination had conducted a series of
transactions with Phillips in which the Phillips Combined Subsidiaries sold a
portion of its residue gas and other by-products to Phillips at contractual
prices that approximated market prices. In addition, Phillips Combined
Subsidiaries purchased raw natural gas from Phillips at contractual prices that
have approximated market prices. The Company anticipates continuing these
transactions in the ordinary course of business.
6. FINANCING
Credit Facility with Financial Institutions -- In March 2000, Field
Services LLC entered into a $2,800 million credit facility with several
financial institutions. The credit facility will be used to support a commercial
paper program for short-term financing requirements. On April 3, 2000, Field
Services LLC borrowed $2,790.9 million in the commercial paper market to fund
one-time cash distributions of $1,524.5 million to Duke Energy, and $1,219.8
million to Phillips on such date and to meet working capital requirements. The
credit facility matures on March 30, 2001, and bears interest at a rate equal
to, at Field Services LLC's option, either (1) the London Interbank Offered Rate
(LIBOR) plus .50% per year for the first 90 days following March 31, 2000 and
LIBOR plus .625% per year thereafter, or (2) the higher of (a) the Bank of
America prime rate and (b) the Federal Funds rate plus .50% per year.
Revolving Credit Agreement -- Effective April 4, 2000, Field Services LLC
entered into a $100 million revolving credit agreement with Duke Capital
Corporation, an indirect, wholly-owned subsidiary of Duke Energy. The revolving
credit agreement will be used for short-term financing requirements. The
agreement terminates on May 31, 2000, and bears interest at the 30-day LIBOR
plus .50% per year.
F-35
<PAGE> 123
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
7. RISK MANAGEMENT AND FINANCIAL INSTRUMENTS
Historically, the Company's commodity price risk management program had
been directed by Duke Energy under its centralized program for controlling,
managing and coordinating its management of risks. During the three months ended
March 31, 1999 and 2000, the Company recorded a hedging gain of $4.0 million and
a hedging loss of $46.7 million, respectively, under Duke Energy's centralized
program. As of March 31, 2000, the existing commodity positions held under the
Duke Energy centralized program were transferred to Duke Energy.
Effective April 1, 2000, the Company began directing its risk management
activities, including commodity price risk for market fluctuations in the price
of NGLs, independently of Duke Energy. The Company plans to use commodity-based
derivative contracts to reduce the risk in the Company's overall earnings and
cash flow with the primary goals of: (1) maintaining minimum cash flow to fund
debt service, dividends and maintenance type capital projects; (2) avoiding
disruption of the Company's growth capital and value creation process; and (3)
retaining a high percentage of the potential upside relation to commodity price
increases. The Company has implemented a risk management policy that provides
guidelines for entering into contractual arrangements to manage commodity price
exposure. Futures and swaps will be used to manage and hedge prices related to
these market exposures.
In establishing its initial independent commodity risk management position,
on April 1, 2000 the Company acquired a portion of Duke Energy's existing
commodity derivatives held for non trading purposes. The absolute notional
contract quantity of the positions acquired was 4,607,000 barrels of crude oil.
Such positions were acquired at market value.
8. COMMITMENTS AND CONTINGENT LIABILITIES
The midstream natural gas industry has seen an increase in the number of
class action lawsuits involving royalty disputes, mismeasurement and mispayment
allegations. Although the industry has seen these types of cases before, they
were typically brought by a single plaintiff or small group of plaintiffs. Many
of these cases are now being brought as class actions. The Company and its
subsidiaries are currently named as defendants in certain of these cases.
Management believes the Company and its subsidiaries have meritorious defenses
to these cases, and therefore will continue to defend them vigorously. However,
these class actions can be costly and time consuming to defend.
9. PENSION AND OTHER BENEFITS
Effective March 31, 2000, participation by the Company's employees in Duke
Energy's non-contributory trustee pension plan and employee savings plan were
terminated. Effective April 1, 2000, the Company's employees began participation
in the Company's employee savings plan, in which the Company contributes 4% of
each eligible employee's qualified wages. Additionally, the Company matches
employees' contributions to the plan up to 6% of qualified wages.
10. BUSINESS SEGMENTS
The Company operates in two principal business segments as follows: (1)
natural gas gathering, processing, transportation, marketing and storage, and
(2) natural gas liquids fractionation, transportation, marketing and trading.
These segments are monitored separately by management for performance against
its internal forecast and are consistent with the Company's internal financial
reporting. These segments have been identified based on the differing products
and services, regulatory environment and the expertise required for these
operations. Margin, earnings before interest, taxes, depreciation and
amortization (EBITDA) and earnings before interest and taxes (EBIT) are the
performance measures utilized by management to monitor
F-36
<PAGE> 124
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
the business of each segment. The accounting policies for the segments are the
same as those described in Note 1. Foreign operations are not material and are
therefore not seperately identified.
The following table sets forth the Company's segment information for the
three months ended March 31, 1999 and 2000 and as of December 31, 1999 and March
31, 2000.
<TABLE>
<CAPTION>
FOR THE THREE MONTH PERIODS
ENDED
-------------------------------
MARCH 31, MARCH 31,
1999 2000
-------------- --------------
<S> <C> <C>
Operating revenues:
Natural Gas............................................... $ 308,326 $ 899,214
NGLs...................................................... 72,582 798,816
Intersegment(a)........................................... (45,911) (246,819)
---------- ----------
Total operating revenues.......................... 334,997 1,451,211
---------- ----------
Margin:
Natural Gas............................................... 61,711 147,856
NGLs...................................................... 756 24,844
---------- ----------
Total margin...................................... 62,467 172,700
---------- ----------
Other operating costs:
Natural Gas............................................... 29,040 52,629
NGLs...................................................... 14 549
Corporate................................................. 16,112 29,701
---------- ----------
Total other operating costs....................... 45,166 82,879
---------- ----------
Equity in earnings of unconsolidated affiliates:
Natural Gas............................................... 3,286 6,514
NGLs...................................................... 245
---------- ----------
Total equity in earnings of unconsolidated
affiliates...................................... 3,286 6,759
---------- ----------
EBITDA(b):
Natural Gas............................................... 35,957 101,741
NGLs...................................................... 742 24,540
Corporate................................................. (16,112) (29,701)
---------- ----------
Total EBITDA...................................... 20,587 96,580
---------- ----------
Depreciation and amortization:
Natural Gas............................................... 19,456 34,030
NGLs...................................................... -- 3,027
Corporate................................................. 573 842
---------- ----------
Total depreciation and amortization............... 20,029 37,899
---------- ----------
EBIT:
Natural Gas............................................... 16,501 67,711
NGLs...................................................... 742 21,513
Corporate................................................. (16,685) (30,543)
---------- ----------
Total EBIT........................................ 558 58,681
---------- ----------
</TABLE>
F-37
<PAGE> 125
DUKE ENERGY FIELD SERVICES CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTH PERIODS
ENDED
-------------------------------
MARCH 31, MARCH 31,
1999 2000
-------------- --------------
<S> <C> <C>
Corporate interest expense.................................. 12,445 14,477
---------- ----------
Income before income taxes:
Natural gas............................................... 16,501 67,711
NGLs...................................................... 742 21,513
Corporate................................................. (29,130) (45,020)
---------- ----------
Total income before income taxes.................. $ (11,887) $ 44,204
========== ==========
</TABLE>
<TABLE>
<CAPTION>
AS OF
----------------------------------
DECEMBER 31, MARCH 31,
1999 2000
-------------- -----------------
<S> <C> <C>
Total assets:
Natural Gas............................................... $2,754,447 $5,329,520
NGLs...................................................... 225,702 191,337
Corporate(c).............................................. 491,686 791,435
---------- ----------
Total assets...................................... $3,471,835 $6,312,292
========== ==========
</TABLE>
- ---------------
(a) Intersegment sales represent sales of NGLs from the Natural Gas segment to
the NGLs segment at either index prices or weighted average prices of NGLs.
Both measures of intersegment sales are effectively based on current
economic market conditions.
(b) EBITDA consists of income from continuing operations before interest
expense, income tax expense, and depreciation and amortization expense, less
interest income. EBITDA is not a measurement presented in accordance with
generally accepted accounting principles. You should not consider it in
isolation from or as a substitute for net income or cash flow measures
prepared in accordance with generally accepted accounting principles or as a
measure of our profitability or liquidity. EBITDA is included as a
supplemental disclosure because it may provide useful information regarding
our ability to service debt and to fund capital expenditures.
(c) Includes items such as unallocated working capital, intercompany accounts
and intangible and other assets.
F-38
<PAGE> 126
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholder
Phillips Gas Company
We have audited the accompanying consolidated balance sheets of Phillips
Gas Company as of December 31, 1998 and 1999, and the related consolidated
statements of income, changes in stockholders' equity (deficit) and cash flows
for each of the three years in the period ended December 31, 1999. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Phillips Gas
Company at December 31, 1998 and 1999, and the consolidated results of its
operations and its cash flows for each of the three years in the period ended
December 31, 1999, in conformity with accounting principles generally accepted
in the United States.
ERNST & YOUNG LLP
Tulsa, Oklahoma
March 6, 2000
F-39
<PAGE> 127
PHILLIPS GAS COMPANY
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
AT DECEMBER 31,
-----------------------
1998 1999
---------- ----------
<S> <C> <C>
ASSETS
Cash and cash equivalents................................... $ 27,045 $ 164,078
Accounts receivable
Affiliate................................................. 51,415 104,159
Trade (less allowances: 1998 -- $648; 1999 -- $329)....... 93,764 104,555
Inventories................................................. 4,957 3,066
Deferred income taxes....................................... 2,160 30,293
Prepaid expenses and other current assets................... 2,916 3,407
---------- ----------
Total Current Assets.............................. 182,257 409,558
Investments and long-term receivables....................... 13,013 9,585
Properties, plants and equipment (net)...................... 943,302 995,406
Deferred gathering fees..................................... 43,531 50,662
---------- ----------
Total............................................. $1,182,103 $1,465,211
========== ==========
LIABILITIES
Accounts payable
Affiliate................................................. $ 23,946 $ 106,410
Trade..................................................... 139,729 178,891
Deferred purchase obligation due within one year............ -- 8,300
Accrued income and other taxes.............................. 8,363 12,140
Other accruals.............................................. 212 63
---------- ----------
Total Current Liabilities......................... 172,250 305,804
Long-term debt due to affiliate............................. 560,000 1,350,000
Other liabilities and deferred credits...................... 4,908 3,065
Deferred income taxes....................................... 68,160 128,907
Deferred gain on sale of assets............................. 16,237 15,154
---------- ----------
Total Liabilities................................. 821,555 1,802,930
---------- ----------
STOCKHOLDER'S EQUITY/(DEFICIT)
Common stock -- 1,000 shares authorized at $.01 par value;
issued and outstanding -- 1,000 shares
Par value................................................. -- --
Capital in excess of par.................................. 142,917 --
Retained earnings/(accumulated deficit)..................... 217,631 (337,719)
---------- ----------
Total Stockholder's Equity/(Deficit).............. 360,548 (337,719)
---------- ----------
Total............................................. $1,182,103 $1,465,211
========== ==========
</TABLE>
See Notes to Financial Statements.
F-40
<PAGE> 128
PHILLIPS GAS COMPANY
CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------------------
1997 1998 1999
---------- ---------- ----------
<S> <C> <C> <C>
REVENUES
Natural gas liquids...................................... $ 711,785 $ 514,758 $ 714,439
Residue gas.............................................. 923,376 722,931 786,739
Other.................................................... 80,994 68,919 90,234
---------- ---------- ----------
Total Revenues................................. 1,716,155 1,306,608 1,591,412
---------- ---------- ----------
COSTS AND EXPENSES
Gas purchases............................................ 1,268,570 940,464 1,148,910
Operating expenses....................................... 190,385 186,572 176,864
Selling, general and administrative expenses............. 14,990 13,290 15,560
Depreciation............................................. 76,737 77,240 80,458
Interest expense......................................... 20,468 36,194 35,643
---------- ---------- ----------
Total Costs and Expenses....................... 1,571,150 1,253,760 1,457,435
---------- ---------- ----------
Income before income taxes............................... 145,005 52,848 133,977
Provision for income taxes............................... 54,998 21,535 52,244
---------- ---------- ----------
NET INCOME............................................... 90,007 31,313 81,733
Preferred stock dividend requirements.................... 30,813 -- --
---------- ---------- ----------
NET INCOME APPLICABLE TO COMMON STOCK.................... $ 59,194 $ 31,313 $ 81,733
========== ========== ==========
</TABLE>
See Notes to Financial Statements.
F-41
<PAGE> 129
PHILLIPS GAS COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------
1997 1998 1999
--------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income................................................ $ 90,007 $ 31,313 $ 81,733
Adjustments to reconcile net income to net cash provided
by operating activities
Non-working capital adjustments
Depreciation......................................... 76,737 77,240 80,458
Deferred taxes....................................... 38,700 41,550 60,747
Deferred gathering fees.............................. (7,803) (7,231) (7,131)
Gain on sale of assets............................... (1,965) (9,848) (907)
Other................................................ (2,119) (6,795) 644
Working capital adjustments
Decrease (increase) in accounts receivable........... 70,180 27,847 (63,465)
Decrease (increase) in inventories................... (798) 2,259 1,891
Decrease (increase) in prepaid expenses and other
current assets, including deferred taxes........... (1,654) 3,084 (28,624)
Increase (decrease) in accounts payable.............. (30,027) (98,776) 121,626
Increase (decrease) in taxes and other accruals...... (12,712) (6,191) 3,628
--------- --------- ---------
Net Cash Provided by Operating Activities................. 218,546 54,452 250,600
--------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures and investments...................... (116,520) (83,152) (124,009)
Proceeds from asset dispositions.......................... 5,499 17,611 442
--------- --------- ---------
Net Cash Used for Investing Activities.................... (111,021) (65,541) (123,567)
--------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Preferred stock dividends................................. (34,922) -- --
Redemption of preferred stock............................. (345,000) -- --
Issuance of debt.......................................... 345,000 -- 10,000
Repayment of debt......................................... -- (95,000) --
Payment of note payable................................... (18,500) -- --
--------- --------- ---------
Net Cash Provided by (Used for) Financing Activities...... (53,422) (95,000) 10,000
--------- --------- ---------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS...... 54,103 (106,089) 137,033
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR.............. 79,031 133,134 27,045
--------- --------- ---------
CASH AND CASH EQUIVALENTS, END OF YEAR.................... $ 133,134 $ 27,045 $ 164,078
========= ========= =========
</TABLE>
See Notes to Financial Statements.
F-42
<PAGE> 130
PHILLIPS GAS COMPANY
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY/(DEFICIT)
(IN THOUSANDS)
<TABLE>
<CAPTION>
SHARES COMMON STOCK RETAINED
-------------------- --------------------- EARNINGS/
PREFERRED COMMON PREFERRED PAR CAPITAL IN (ACCUMULATED
STOCK STOCK STOCK VALUE EXCESS OF PAR DEFICIT)
----------- ------ --------- ----- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
December 31, 1996............ 13,800,000 1,000 $ 345,000 -- $ 142,917 $ 131,233
Net income................... 90,007
Cash dividends paid on
preferred stock............ (34,922)
Redemption of preferred
stock...................... (13,800,000) (345,000)
----------- ----- --------- -- --------- ---------
December 31, 1997............ -- 1,000 -- -- 142,917 186,318
Net income................... 31,313
----------- ----- --------- -- --------- ---------
December 31, 1998............ -- 1,000 -- -- 142,917 217,631
Net income................... 81,733
Dividend declared............ (142,917) (637,083)
----------- ----- --------- -- --------- ---------
December 31, 1999............ -- 1,000 $ -- -- $ -- $(337,719)
=========== ===== ========= == ========= =========
</TABLE>
See Notes to Financial Statements.
F-43
<PAGE> 131
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS
1. ACCOUNTING POLICIES
Consolidation Principles and Basis of Presentation -- Phillips Gas Company
(PGC or the company) is a subsidiary of Phillips Petroleum Company (Phillips).
Phillips owns 100 percent of the company's outstanding common stock.
Majority-owned, controlled subsidiaries are consolidated. Investments in
affiliates in which the company owns 20 percent to 50 percent of voting control
are accounted for using the equity method.
Use of Estimates -- The preparation of financial statements in conformity
with generally accepted accounting principles requires Management to make
estimates and assumptions that affect the reported amounts of assets,
liabilities, revenues and expenses, and the disclosures of contingent assets and
liabilities. Actual results could differ from the estimates and assumptions
used.
Cash and Cash Equivalents -- Cash and cash equivalents are held by Phillips
as part of its centralized cash management system. Interest is paid monthly
based on the average daily balance of funds invested at a rate equal to the
weighted-average rate earned by Phillips or at the applicable federal funds
rate.
Cash equivalents are highly liquid short-term investments that are readily
convertible to known amounts of cash and have original maturities within three
months from their date of purchase.
Inventories -- Helium inventory is valued at cost, which is lower than
market, mainly on the last-in, first-out (LIFO) basis. Materials and supplies
are valued at, or below, average cost.
Derivative Contracts -- The company uses commodity swap and option
contracts. Commodity option contracts are recorded at market value through
monthly adjustments for unrealized gains and losses; however, swaps are not
marked to market. Gains and losses are recognized during the same period in
which the gains and losses from the underlying exposures being hedged are
recognized. In 1998 and 1999, the net realized and unrealized gains and losses
from derivative contracts were not material to the company's financial
statements.
Revenue Recognition -- Revenues associated with sales of natural gas,
natural gas liquids, and all other items are recorded when title passes to the
customer upon delivery.
Gas Exchanges and Imbalances -- Quantities of gas over-delivered or
under-delivered related to exchange or imbalance agreements are recorded monthly
as receivables or payables using the index price or the average price of gas at
the plant or system. Generally, these balances are settled with deliveries of
gas.
Depreciation -- Depreciation of plants and systems is determined using the
straight-line method over an estimated life of 20 years for most of the assets.
Other properties and equipment are depreciated using the straight-line method
over the estimated useful lives of the assets. (See Note 5)
Impairment of Assets -- Long-lived assets used in operations are assessed
for impairment whenever changes in facts and circumstances indicate a possible
significant deterioration in the future cash flows expected to be generated by
an asset group. If, upon review, the sum of the undiscounted pretax cash flows
are less than the carrying value of the asset group, the carrying value is
written down to estimated fair value.
The expected future cash flows used for impairment reviews and related fair
value calculations are based on the production volumes, prices and costs used
for planning purposes by the company, considering all available evidence at the
date of the review. These may differ from levels prevalent at the impairment
review date due to anticipated changes in outlook for production levels, supply
and demand influences in the marketplace, and general inflation.
Property Dispositions -- When complete units of depreciable property are
retired or sold, the asset cost and related accumulated depreciation are
eliminated, with any gain or loss reflected in income. When less than complete
units of depreciable property are disposed of or retired, the difference between
asset cost and salvage value is charged or credited to accumulated depreciation.
F-44
<PAGE> 132
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
Environmental Costs -- Environmental expenditures are expensed or
capitalized as appropriate, depending upon their future economic benefit.
Expenditures that relate to an existing condition caused by past operations, and
that do not have future economic benefit, are expensed. Liabilities for these
expenditures are recorded on an undiscounted basis when environmental
assessments or clean-ups are probable and the costs can be reasonably estimated.
Income Taxes -- Deferred taxes are computed using the liability method and
provided on all temporary differences between the financial reporting basis and
the tax basis of the assets and liabilities. Allowable tax credits are applied
currently as reductions of the provision for income taxes. The company's results
of operations for 1998 and 1999 were included in the consolidated federal income
tax return of Phillips, with any resulting tax liability or refund settled with
Phillips on a current basis. Income tax expense represents amounts due Phillips
for federal income taxes as if the company were filing a separate return, except
that the same principles and elections used in the consolidated return were
applied. Results of operations for 1997 were included in the separate federal
income tax return of Phillips Gas Company.
Income Per Share of Common Stock -- Income per share of common stock has
been omitted from the consolidated statement of income because all common stock
is owned by Phillips.
Comprehensive Income -- The company does not have any items of other
comprehensive income, as defined in Financial Accounting Standards Board (FASB)
Statement No. 130, "Reporting Comprehensive Income."
2. THE COMPANY'S BUSINESS
The company owns and operates natural gas gathering systems and processing
facilities concentrated in four major gas-producing areas in the Southwest. The
company's core gathering and processing regions are concentrated in the Permian
Basin area of West Texas and southeastern New Mexico, the Panhandle areas of
Texas and Oklahoma, and central and western Oklahoma. Under FASB Statement No.
131, "Disclosures about Segments of an Enterprise and Related Information," the
four regions have been aggregated into a single segment for financial reporting
purposes. At December 31, 1999, the company wholly owned 15 natural gas liquids
extraction plants, and had an interest in another. The plants are located in
Texas (9), Oklahoma (3), and New Mexico (4). During 1999, the company purchased
a co-venturer's interest in the Artesia plant and gathering system in New Mexico
that the company had operated under a construction and operating agreement since
1959.
The company sells substantially all of its natural gas liquids to Phillips.
The company is able to interconnect to major gas transmission pipelines in each
of its regions in order to sell residue gas to local distribution companies,
electric utilities, various other business and industrial users and marketers.
The company's major residue gas markets are located primarily in Texas, Oklahoma
and the midwestern United States.
3. INVENTORIES
Inventories at December 31 consisted of the following:
<TABLE>
<CAPTION>
1998 1999
------ ------
(IN THOUSANDS)
<S> <C> <C>
Helium...................................................... $1,027 $ --
Materials, supplies and other............................... 3,930 3,066
------ ------
$4,957 $3,066
====== ======
</TABLE>
F-45
<PAGE> 133
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
The company's helium inventory was sold in March 1999 for $4,989,000,
resulting in after-tax income of $2,575,000.
4. INVESTMENTS AND LONG-TERM RECEIVABLES
Components of investments and long-term receivables at December 31 were as
follows:
<TABLE>
<CAPTION>
1998 1999
------- ------
(IN THOUSANDS)
<S> <C> <C>
Investment in affiliated company............................ $ 3,328 $3,421
Long-term receivables....................................... 9,685 6,164
------- ------
$13,013 $9,585
======= ======
</TABLE>
In 1993 the company formed GPM Gas Gathering L.L.C. (GGG), a limited
liability company in which PGC invested approximately $4 million in exchange for
a 50 percent equity interest. In December 1993, the company sold a portion of
its gas gathering assets in the West Texas region of the Permian Basin to GGG
for $138 million. GGG is providing gas gathering services to the company under a
twenty-year contract. This contract does not represent a take-or-pay or
unconditional purchase obligation. Because of the company's continuing
involvement in GGG, a $22 million gain from the sale of the assets was deferred
and is being recognized over the economic life of the gathering assets. The
deferred gain recognized during 1998 and 1999 was $1,082,000 and $1,083,000,
respectively. Distributions received from GGG during 1998 and 1999 were
$1,153,000 and $955,000 respectively. See Note 10 for the gathering fees paid by
the company to GGG under this contract.
5. PROPERTIES, PLANTS AND EQUIPMENT
Properties, plants and equipment (net) at December 31 included the
following:
<TABLE>
<CAPTION>
USEFUL LIFE 1998 1999
----------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Gathering.................................... 15-20 Years $1,529,026 $1,657,605
Processing................................... 15-20 Years 561,170 591,127
Work in progress............................. 42,694 6,484
Other........................................ 3-5 Years 10,670 11,788
---------- ----------
Total property, plant & equipment (at
cost)...................................... 2,143,560 2,267,004
Less accumulated depreciation and
amortization............................... 1,200,258 1,271,598
---------- ----------
$ 943,302 $ 995,406
========== ==========
</TABLE>
6. DEBT
Long-term debt due to affiliate at December 31 was:
<TABLE>
<CAPTION>
1998 1999
-------- ----------
(IN THOUSANDS)
<S> <C> <C>
Note due 2001............................................... $215,000 $ 225,000
Note due 2002............................................... -- 780,000
Note due 2005............................................... 345,000 345,000
-------- ----------
$560,000 $1,350,000
======== ==========
</TABLE>
F-46
<PAGE> 134
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
On December 9, 1999, Phillips Gas Company declared and distributed a
dividend to Phillips in the form of a note payable in the amount of $780
million. The note payable is due in full at maturity on December 9, 2002, bears
interest at a rate of 5.74 percent per annum, and may be paid prior to maturity
at any time without penalty or premium. The amount of the dividend exceeded the
company's historical-cost-based net assets, resulting in a negative balance in
stockholder's equity.
The declaration and payment of dividends is at the discretion of the
company's Board of Directors. In connection with each dividend declaration, the
Board of Directors makes a determination that, based upon its familiarity with
the company's business, prospects and financial condition, the company's recent
earnings history and forecast, an appraisal of the company's assets and
discussions with the company's executive officers, attorneys and accountants,
the dividend is a permitted dividend under Delaware law. This determination was
made prior to the declaration of the $780 million dividend made on December 9,
1999.
The note due 2001 bears interest at LIBOR plus 1/2 percent per annum (6.33
percent at December 31, 1999). Any amount repaid may be reborrowed as long as
the agreement is in effect. The note due 2005 bears interest at the applicable
federal mid-term rate (6.03 percent monthly rate for December 1999). The
carrying amount of the floating-rate debt approximates fair value.
7. FINANCIAL INSTRUMENTS
Concentrations of Credit Risk
The company's financial instruments that are exposed to concentrations of
credit risk consist primarily of cash equivalents, accounts receivable and
over-the-counter derivative contracts. Derivative contracts are immaterial to
the financial statements of the company.
The company's cash and cash equivalents are held by Phillips as part of its
centralized cash management system. Cash equivalents are in high-quality
securities placed with major international banks and financial institutions.
Phillips' investment policy limits the company's exposure to concentrations of
credit risk with respect to its cash equivalent investments.
The company's affiliate receivables result primarily from its sales of
natural gas liquids and residue gas to Phillips. The company's trade receivables
result primarily from domestic sales of residue gas to local distribution
companies, electric utilities, various other business and industrial end-users,
and marketers. The company routinely assesses the financial strength of its
unaffiliated residue-gas customers. The company considers its concentrations of
credit risk, other than those with Phillips, to be limited.
Fair Values of Financial Instruments
The following methods and assumptions were used by the company in
estimating the fair value of its financial instruments:
Cash and cash equivalents: The carrying amount reported in the balance
sheet approximates fair value because of the short-term nature of these
investments.
Deferred purchase obligation due within one year: The carrying amount
reported in the balance sheet approximates fair value because of the
short-term nature of the obligation.
Long-term debt: The carrying amount of the company's floating- and
fixed-rate debt approximates fair value based on current market rates.
F-47
<PAGE> 135
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
8. PREFERRED STOCK
On December 15, 1997, the company redeemed its 13,800,000 shares of Series
A 9.32% Cumulative Preferred Stock at par. The liquidation value for each Series
A preferred share was $25, plus $.2006 for unpaid dividends.
9. CONTINGENT LIABILITIES
The company is a party to a number of legal proceedings pending in various
courts or agencies for which no provision has been made. Costs related to
contingencies are provided when a loss is probable and the amount can be
reasonably estimated. These accruals are not discounted for delays in future
payment and are not reduced for potential insurance recoveries. If applicable,
undiscounted receivables are accrued for probable insurance recoveries.
A judgment has been entered in the case of Chevron U.S.A., Inc. versus GPM
Gas Corporation (GPM), a wholly owned subsidiary of the company, upholding and
construing most favored nations clauses in three 1961 West Texas gas purchase
contracts. Although a federal district court decided that GPM owes Chevron
damages in the amount of $13,828,030 through July 31, 1998, plus 6 percent
interest from that date and attorneys' fees in the amount of $329,994, GPM has
appealed the judgment to the U.S. Court of Appeals for the Fifth Circuit.
Based on currently available information, after taking into consideration
amounts already accrued and the pending appeal in the Chevron litigation, PGC
believes that any liability resulting from any of the above matters will not
have a material adverse effect on its financial statements. However, such
matters could have a material effect on results of operations in a particular
quarter or fiscal year as they develop or as new issues are identified.
10. RELATED PARTY TRANSACTIONS
Significant transactions with affiliated parties were:
<TABLE>
<CAPTION>
1997 1998 1999
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Operating revenues(a)................................ $758,700 $537,528 $725,478
Gas purchases(b)..................................... 118,827 76,617 100,253
Operating expenses(c)(e)(h).......................... 115,698 113,475 110,897
Selling, general and administrative
expenses(c)(d)(e).................................. 12,828 10,059 13,306
Interest income(f)................................... 2,701 2,430 2,487
Interest expense(g).................................. 20,340 35,880 35,610
</TABLE>
- ------------
(a) The company sells a portion of its residue gas and other by-products to
Phillips at contractual prices that approximate market prices. The company
sells substantially all of its natural gas liquids to Phillips at prices
based upon quoted market prices for fractionated natural gas liquids, less
charges for transportation, fractionation and quality-adjustment fees.
Effective January 1, 2000, the pricing formula contained in the natural gas
liquids supply arrangement with Phillips was renegotiated, as allowed under
the contract, to reflect current market conditions. The new arrangement
will be maintained for an initial term of 15 years. PGC believes that the
loss of Phillips as a natural gas liquids customer would have a material,
adverse effect on its revenues and operating results.
(b) The company purchases raw gas from Phillips at contractual prices that
approximate market prices. During 1999, Phillips provided the company with
approximately 8 percent of its raw gas throughput, under long-term supply
contracts, making Phillips its largest single supplier. PGC believes that
the loss of
F-48
<PAGE> 136
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
Phillips as a raw gas supplier would have a material adverse effect on its
dedicated raw gas supplies and its operating results.
(c) Phillips provides the company with various field services (costs included
in operating expenses) and other general administrative services (costs
included in selling, general and administrative expenses) including
insurance, personnel administration, office space, communications, data
processing, engineering, automotive and other field equipment, and other
miscellaneous services. Charges for these services and benefits are based
on usage and actual costs or other allocation methods the company considers
reasonable.
(d) Phillips charges the company a portion of its corporate indirect overhead
costs including executive, legal, treasury, planning, tax, auditing and
other corporate services, under an administrative services agreement.
Charges for these services and benefits are based on usage and actual costs
or other allocation methods the company considers reasonable.
(e) All operational and staff personnel requirements are met by Phillips'
employees, most of whom are associated with the GPM Gas Services Company
division of Phillips. All services provided by Phillips, including (c) and
(d) above, are priced to reimburse Phillips for its actual costs. Charges
for these services and benefits are based on usage and actual costs or
other allocation methods the company considers reasonable. Selling, general
and administrative expenses included a severance charge reversal of $2
million in 1998, and a $2 million severance charge in 1999.
(f) The company earns interest from participation in Phillips' centralized cash
management system.
(g) The company incurs interest expense on borrowings from and debt to
Phillips.
(h) Beginning January 1, 1994, the company began paying GGG a fee for gas
gathering services under a long-term contract. The gas gathering fee
structure in the long-term contract contains a component that is paid to
GGG in an accelerated manner. Because GGG is providing the same gas
gathering services to the company over the contract period, recognition of
expenses related to this component of the gathering fee is deferred and
recognized on a straight-line basis through the remaining period of the
long-term contract. In 1997, 1998 and 1999, the total gathering fees were
$42,755,000, $42,951,000 and $41,447,000, respectively, of which
$34,952,000, $35,720,000 and $34,316,000, respectively, were expensed.
The company provides Phillips with other minor administrative services.
Costs allocated to Phillips for these services have been netted against the
above direct charges from Phillips and were $120,000, $79,000 and $72,000 in
1997, 1998 and 1999, respectively.
The company periodically buys from, or sells to, Phillips various assets
used in the operations of the business. These net acquisitions were recorded at
the assets' historical net book values, which generally approximated fair market
value, and totaled $22,000, $60,000 and $239,000 in 1997, 1998 and 1999,
respectively. Prior to such acquisition or sale, the company paid or received a
fee based on usage of such assets (included in operating expenses above). In
addition, the company purchases plastic pipe from Phillips, which is used in the
construction of gathering systems. Purchases in 1997, 1998 and 1999 were
$3,942,000, $2,276,000 and $2,175,000, respectively.
11. EMPLOYEE BENEFIT PLANS
Substantially all employees of Phillips' GPM Gas Services Company division
participate in Phillips' benefit plans, including pension plans, defined
contribution plans, stock option plans and health and life insurance plans.
Costs are allocated to the company based principally on base payroll costs of
participating employees. Total benefit plan costs charged to the company were
$22,095,000, $22,522,000 and $21,005,000 for the years ended 1997, 1998 and
1999, respectively.
F-49
<PAGE> 137
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
12. INCOME TAXES
Taxes charged to income were:
<TABLE>
<CAPTION>
1997 1998 1999
------- -------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Federal
Current.............................................. $17,117 $(23,339) $19,072
Deferred............................................. 31,114 40,747 25,646
State
Current.............................................. 443 215 558
Deferred............................................. 6,324 3,912 6,968
------- -------- -------
$54,998 $ 21,535 $52,244
======= ======== =======
</TABLE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Major components of the
company's deferred taxes at December 31 were:
<TABLE>
<CAPTION>
1998 1999
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Deferred Tax Liabilities
Depreciation................................................ $164,065 $188,829
Prepaid gas gathering fees.................................. 17,612 20,374
-------- --------
Total deferred tax liabilities.............................. 181,677 209,203
-------- --------
Deferred Tax Assets
Alternative minimum tax credit carryforward................. 55,385 55,385
Net operating loss carryforwards............................ 45,104 36,312
Deferred gain on sale of assets............................. 6,495 6,062
Investment in partnerships.................................. 3,553 4,549
Contingency accruals........................................ 2,973 4,924
Benefit plan accruals....................................... 1,715 2,030
Other (net)................................................. 452 1,327
-------- --------
Total deferred tax assets................................... 115,677 110,589
-------- --------
Net deferred tax liabilities................................ $ 66,000 $ 98,614
======== ========
</TABLE>
The tax bases in the company's assets were increased as a result of the
1992 transfer of substantially all of its assets to GPM Gas Corporation and the
subsequent issuance and sale of preferred stock. The net operating loss
carryforwards and the alternative minimum tax credit carryforwards resulted
primarily from tax depreciation on the increased bases in the company's assets.
The company believes it is more likely than not that it will fully realize
its deferred tax assets, and, accordingly, a valuation allowance has not been
provided. Management expects that the deferred tax assets will be realized as
reductions in future taxable operating income or by utilizing available tax
planning strategies. Uncertainties that may affect the realization of these
assets include tax law changes, change in control as discussed in Note 16, and
the future level of product costs. Therefore, the company periodically reviews
its ability to realize these assets and will establish a valuation allowance if
needed.
At December 31, 1999, the company had net operating loss carryforwards of
$71 million for U.S. income tax purposes, and $221 million for state income tax
purposes. The U.S. income tax carryforwards begin
F-50
<PAGE> 138
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
expiring in 2009, and the state income tax carryforwards begin expiring in 2000.
The alternative minimum tax credit can be carried forward indefinitely to reduce
the company's regular tax liability.
The reconciliation of income tax at the federal statutory rate with the
provision for income taxes follows:
<TABLE>
<CAPTION>
PERCENT OF
PRETAX INCOME
------------------
1997 1998 1999 1997 1998 1999
------- ------- ------- ---- ---- ----
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Federal statutory income tax....... $50,752 $18,497 $46,892 35.0% 35.0% 35.0%
State income tax................... 4,399 2,683 4,893 3.0 5.1 3.7
Other.............................. (153) 355 459 (0.1) 0.6 0.3
------- ------- ------- ---- ---- ----
$54,998 $21,535 $52,244 37.9% 40.7% 39.0%
======= ======= ======= ==== ==== ====
</TABLE>
13. KEEP WELL REPLACEMENT AGREEMENT
The redemption of the company's outstanding shares of Series A 9.32%
Cumulative Preferred Stock on December 15, 1997, cancelled the previous Keep
Well Agreement and triggered the need for a Keep Well Replacement Agreement
between Phillips and PGC. The Keep Well Replacement Agreement provides for
Phillips to maintain PGC's consolidated tangible net worth in an amount not less
than $50 million, or to irrecoverably and unconditionally guaranty the full and
timely performance, payment and discharge by PGC of all its obligations and
liabilities. Effective February 1, 2000, Phillips furnished a guaranty to GGG
assuring payment by PGC of all its existing or future obligations and
liabilities to GGG.
14. CASH FLOW INFORMATION
<TABLE>
<CAPTION>
1997 1998 1999
------- ------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Non-Cash Investing and Financing Activities
Liquidating dividend to parent company in the form of a
promissory note...................................... $ -- $ -- $780,000
Deferred payment obligation to purchase property, plant
and equipment........................................ -- -- 8,300
Cash Payments
Interest............................................... 20,452 36,108 32,789
Income taxes, including payments to Phillips........... 25,432 123 20,773
</TABLE>
The deferred purchase obligation resulted from the company's July 1, 1999,
purchase of American Liberty Oil Company's interest in the Artesia plant and
gathering system in New Mexico. At the time of closing, a partial cash payment
was made. A second and final payment was made on January 3, 2000.
15. OTHER FINANCIAL INFORMATION
<TABLE>
<CAPTION>
1997 1998 1999
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Taxes other than income and payroll taxes............... $10,765 $10,772 $12,626
</TABLE>
16. PROPOSED BUSINESS COMBINATION
On December 16, 1999, Phillips and Duke Energy Corporation (Duke Energy)
announced that they had signed definitive agreements to combine the two
companies' gas gathering, processing and marketing
F-51
<PAGE> 139
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS--CONTINUED
businesses to form a new midstream company to be called Duke Energy Field
Services, LLC (Field Services LLC). The definitive agreements have been
unanimously approved by both companies' Boards of Directors. Subject to
regulatory approval, the transaction is expected to close by the end of the
first quarter of 2000.
If the transaction closes as expected, the subsidiaries of PGC will be
contributed to Field Services LLC in a partially tax-free exchange, and those
subsidiaries will cease to be wholly owned subsidiaries of Phillips. As part of
the transaction, the existing natural gas liquids purchase contract between
Phillips and the company will be maintained by the new company for an initial
term of 15 years. At closing, Duke Energy will own about 70 percent of Field
Services LLC, and Phillips will own about 30 percent.
17. IMPACT OF TRANSITION TO YEAR 2000 (UNAUDITED)
PGC relies on Phillips for computer systems, hardware and software for
operation of its facilities and business support systems. PGC's operations and
facilities were included as part of Phillips' companywide Year 2000 Project that
addressed the issue of computer programs and embedded computer chips being
unable to distinguish between the year 1900 and the year 2000. That project is
now complete. With the rollover into 2000, neither PGC nor Phillips experienced
any significant Year 2000 failures. Some minor Year 2000 issues occurred and
were resolved, but none have had a material impact on PGC's results of
operations, liquidity, financial condition or safety record. The total costs
associated with Year 2000 issues were not material to PGC's or Phillips'
financial position. Phillips continues to monitor its mission-critical computer
applications and those of its suppliers and vendors throughout the year 2000 to
ensure that any latent Year 2000 matters that may arise are addressed promptly.
F-52
<PAGE> 140
PHILLIPS GAS COMPANY
CONSOLIDATED STATEMENT OF INCOME
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
---------------------
1999 2000
-------- --------
(UNAUDITED)
<S> <C> <C>
REVENUES
Natural gas liquids......................................... $104,035 $286,961
Residue gas................................................. 141,706 224,524
Other....................................................... 19,910 33,345
-------- --------
Total Revenues......................................... 265,651 544,830
-------- --------
COSTS AND EXPENSES
Gas purchases............................................... 189,421 377,659
Operating expenses.......................................... 42,741 47,285
Selling, general and administrative expenses................ 4,880 4,251
Depreciation................................................ 19,262 20,700
Interest expense............................................ 7,255 20,492
-------- --------
Total Costs and Expenses............................... 263,559 470,387
-------- --------
Income before income taxes.................................. 2,092 74,443
Provision for income taxes.................................. 851 29,110
-------- --------
NET INCOME.................................................. $ 1,241 $ 45,333
======== ========
</TABLE>
See Notes to Financial Statements.
F-53
<PAGE> 141
PHILLIPS GAS COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
---------------------
1999 2000
-------- --------
(UNAUDITED)
---------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income.................................................. $ 1,241 $ 45,333
Adjustments to reconcile net income to net cash provided by
operating activities
Non-working capital adjustments
Depreciation......................................... 19,262 20,700
Deferred taxes....................................... 5,783 13,891
Deferred gathering fees.............................. (1,679) (1,651)
Gain on sale of assets............................... (212) (88)
Other................................................ 337 1,896
Working capital adjustments
Decrease (increase) in accounts receivable........... 4,028 (13,646)
Decrease (increase) in inventories................... 1,000 (298)
Decrease in prepaid expenses and other current
assets, including deferred taxes.................. 555 14,338
Decrease in accounts payable......................... (17,224) (64,535)
Decrease in taxes and other accruals................. (1,875) (753)
-------- --------
Net Cash Provided by Operating Activities................... 11,216 15,187
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures and investments........................ (13,532) (11,985)
Proceeds from asset dispositions............................ 55 673
-------- --------
Net Cash Used for Investing Activities...................... (13,477) (11,312)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES
Payment of note payable..................................... -- (8,300)
-------- --------
Net Cash Used for Financing Activities...................... -- (8,300)
-------- --------
NET CHANGE IN CASH AND CASH EQUIVALENTS..................... (2,261) (4,425)
Cash and cash equivalents at beginning of period............ 27,045 164,078
-------- --------
Cash and Cash Equivalents at End of Period.................. $ 24,784 $159,653
======== ========
</TABLE>
See Notes to Financial Statements.
F-54
<PAGE> 142
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS
1. INTERIM FINANCIAL INFORMATION
The financial information for the interim periods presented in the
financial statements included in this report is unaudited and includes all known
accruals and adjustments that Phillips Gas Company (PGC or the company)
considers necessary for a fair statement of the results for such periods. All
such adjustments are of a normal and recurring nature.
2. BUSINESS COMBINATION
On March 31, 2000, Phillips Petroleum Company (Phillips) combined its gas
gathering, processing and marketing business with Duke Energy Corporation's
(Duke Energy) gas gathering, processing and marketing business to form a new
midstream company called Duke Energy Field Services LLC (DEFS).
PGC contributed its holdings in its limited-liability-company subsidiaries
to DEFS in a tax-free exchange. The operations of these subsidiaries comprise
substantially all of the operations of PGC. Effective March 31, 2000, the
company is accounting for its investment in DEFS using the equity method.
In connection with the combination DEFS borrowed approximately $2.75
billion of short-term debt. In April 2000, the proceeds of the debt were used to
make one-time cash distributions of approximately $1,525 million to Duke Energy
and $1,220 million to Phillips. Duke Energy owns about 70 percent of DEFS, and
Phillips, through PGC, owns about 30 percent.
3. INCOME TAXES
The company's effective tax rate for the first three months of 1999 was 41
percent, compared with 39 percent for the same period of 2000.
Deferred income taxes are computed using the liability method and provided
on all temporary differences between the financial reporting basis and the tax
basis of the assets and liabilities. Allowable tax credits are applied currently
as reductions of the provision for income taxes. The results of operations for
1999 and 2000 are included in the consolidated federal income tax return of
Phillips, with any resulting tax liability or refund settled with Phillips on a
current basis. Income tax expense represents PGC on a separate return basis,
except that the same principles and elections used in the consolidated return
were applied.
4. RELATED PARTY TRANSACTIONS
Significant transactions with affiliated parties were:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
---------------------
1999 2000
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Operating revenues.......................................... $110,613 $287,294
Gas purchases............................................... 17,970 35,499
Operating expenses.......................................... 27,363 29,509
Selling, general and administrative expenses................ 4,361 3,750
Interest income............................................. 452 2,618
Interest expense............................................ 7,224 20,474
</TABLE>
Prior to the contribution of its subsidiaries to DEFS on March 31, 2000,
the company purchased raw gas from, and sold a portion of its residue gas and
substantially all of its natural gas liquids to, Phillips. Phillips also
provided the company with various field and general administrative services. In
addition, the company purchased Phillips' plastic pipe, which is used in the
construction of gathering systems.
F-55
<PAGE> 143
PHILLIPS GAS COMPANY
NOTES TO FINANCIAL STATEMENTS -- CONTINUED
The company earns interest from participation in Phillips' centralized cash
management system and incurs interest expense on its borrowings from Phillips.
The company paid gathering fees to GPM Gas Gathering L.L.C. (GGG) until it
contributed its equity interest in GGG into DEFS on March 31, 2000. In the first
three months of 1999 and 2000, net fees paid to GGG for gas gathering services
were $10,334,831 and $10,101,951, respectively; $8,655,478 and $8,450,827 were
expensed.
Selling, general and administrative expenses included a $2 million
severance charge during the first three months of 1999.
5. CASH FLOW INFORMATION
NON-CASH INVESTING ACTIVITIES
On March 31, 2000, the company contributed its holdings in its
limited-liability-company subsidiaries to DEFS. The contribution included
property, plant and other assets and liabilities held by these companies, except
for cash invested with Phillips, deferred taxes and current taxes payable.
Other non-cash investing activities and cash payments for the three-month
periods ended March 31 were as follows:
<TABLE>
<CAPTION>
1999 2000
------ -------
(IN THOUSANDS)
-----------------
<S> <C> <C>
CASH PAYMENTS
Interest.................................................... $7,296 $20,477
Income taxes, including payments to Phillips................ 1,432 21
</TABLE>
F-56
<PAGE> 144
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Management of
Duke Energy Field Services
Denver, Colorado
We have audited the accompanying combined statements of income and cash
flows of the UPFuels Division of Union Pacific Resources Group Inc. (a Utah
Corporation) for the year ended December 31, 1998 and the three-month period
ended March 31, 1999. These financial statements are the responsibility of the
UPFuels Division's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the combined results of operations and cash
flows of the UPFuels Division for the year ended December 31, 1998, and the
three-month period ended March 31, 1999, in conformity with accounting
principles generally accepted in the United States.
ARTHUR ANDERSEN LLP
Fort Worth, Texas
March 10, 2000
F-57
<PAGE> 145
INDEPENDENT AUDITORS' REPORT
To the Board of Directors
Union Pacific Resources Group Inc.
Fort Worth, Texas
We have audited the accompanying combined statements of income and cash
flows for the year ended December 31, 1997 of the UPFuels Division of Union
Pacific Resources Group Inc. (as restated). These financial statements are the
responsibility of the UPFuels Division's management. Our responsibility is to
express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, such combined financial statements present fairly, in all
material respects, the combined results of operations and cash flows of the
UPFuels Division for the year ended December 31, 1997, in conformity with
generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Fort Worth, Texas
June 12, 1998
F-58
<PAGE> 146
UPFUELS DIVISION
COMBINED STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 1997 (AS RESTATED) AND 1998 AND FOR THE QUARTER
ENDED MARCH 31, 1999
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
1997 1998 1999
------ -------- ---------
(MILLIONS OF DOLLARS)
<S> <C> <C> <C>
Operating revenues:
Gathering and processing.................................. $321.7 $ 227.2 $ 54.5
Pipelines................................................. 401.2 305.0 75.8
Marketing................................................. 2,761.6 3,062.8 784.0
Intersegment.............................................. (269.3) (188.6) (45.2)
------ -------- --------
Total operating revenues............................ 3,215.2 3,406.4 869.1
------ -------- --------
Product purchases:
Gathering and processing.................................. 157.1 119.6 30.9
Pipelines................................................. 312.4 198.4 44.9
Marketing................................................. 2,728.5 2,986.3 757.9
Intersegment.............................................. (269.3) (188.6) (45.2)
------ -------- --------
Total product purchases............................. 2,928.7 3,115.7 788.5
------ -------- --------
Gross margin:
Gathering and processing.................................. 164.6 107.6 23.6
Pipelines................................................. 88.8 106.6 30.9
Marketing................................................. 33.1 76.5 26.1
------ -------- --------
Total gross margin.................................. 286.5 290.7 80.6
------ -------- --------
Operating expenses:
Gathering and processing.................................. 57.9 66.4 17.7
Pipelines................................................. 27.3 37.3 7.8
Marketing................................................. -- -- --
------ -------- --------
Total operating expenses............................ 85.2 103.7 25.5
------ -------- --------
General & administrative expenses:
Gathering and processing.................................. 6.0 8.0 1.9
Pipelines................................................. 1.3 2.9 0.7
Marketing................................................. 13.0 13.0 3.0
Corporate................................................. 7.0 7.2 2.0
------ -------- --------
Total general & administrative expenses............. 27.3 31.1 7.6
------ -------- --------
Depreciation and amortization expense
Gathering and processing.................................. 44.0 41.6 11.8
Pipelines................................................. 29.4 32.7 8.0
Marketing................................................. 1.1 6.2 4.1
------ -------- --------
Total depreciation and amortization expense......... 74.5 80.5 23.9
------ -------- --------
Operating income (loss):
Gathering and processing.................................. 56.7 (8.4) (7.8)
Pipelines................................................. 30.8 33.7 14.4
Marketing................................................. 19.0 57.3 19.0
Corporate................................................. (7.0) (7.2) (2.0)
------ -------- --------
Total operating income.............................. 99.5 75.4 23.6
------ -------- --------
Other income................................................ -- 0.6 --
Minority interest........................................... (9.8) (7.6) (2.1)
------ -------- --------
Income before income taxes.................................. 89.7 68.4 21.5
Income taxes................................................ 33.2 25.3 8.0
------ -------- --------
Net income.................................................. $ 56.5 $ 43.1 $ 13.5
------ -------- --------
</TABLE>
The accompanying accounting policies and notes to the combined
financial statements are an integral part of these statements.
F-59
<PAGE> 147
UPFUELS DIVISION
COMBINED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1997 (AS RESTATED) AND FOR THE QUARTER ENDED
MARCH 31, 1999
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
1997 1998 1999
------- ------- ---------
(MILLIONS OF DOLLARS)
<S> <C> <C> <C>
Cash provided by operations:
Net income................................................ $ 56.5 $ 43.1 $ 13.5
Depreciation and amortization.......................... 74.5 80.5 23.9
Deferred income taxes.................................. 15.1 (24.0) 10.8
Minority interest earnings............................. 9.8 7.6 2.1
Other non-cash charges (credits) -- net................ 8.1 (1.0) (0.4)
Changes in current assets and liabilities................. 14.6 (35.8) 18.0
------- ------- ------
Cash provided by operations....................... 178.6 70.4 67.9
------- ------- ------
Investing activities:
Capital expenditures...................................... (168.5) (143.8) (32.0)
Acquisition of Highlands Gas Corporation.................. (179.4) -- --
Acquisition of certain assets of Norcen................... -- (83.2) --
------- ------- ------
Cash used by investing activities................. (347.9) (227.0) (32.0)
------- ------- ------
Financing activities:
Capital contributions by/(distributions to) Union Pacific
Resources Group Inc. .................................. 187.4 170.0 (39.9)
Distributions to minority interest owners................. (20.2) (11.3) (1.5)
------- ------- ------
Cash provided by (used in) financing activities... 167.2 158.7 (41.4)
------- ------- ------
Net change in cash and temporary investments................ (2.1) 2.1 (5.5)
Balance at beginning of period.............................. 9.5 7.4 9.5
------- ------- ------
Balance at end of period.................................... $ 7.4 $ 9.5 $ 4.0
======= ======= ======
Changes in current assets and liabilities:
Accounts receivable....................................... 1.4 13.1 35.7
Inventories............................................... (15.2) (10.4) 12.7
Other current assets...................................... (5.2) 11.3 0.7
Accounts payable.......................................... 30.5 (45.9) (29.4)
Other current liabilities................................. 3.1 (3.9) (1.7)
------- ------- ------
Total............................................. $ 14.6 $ (35.8) $ 18.0
======= ======= ======
</TABLE>
The accompanying accounting policies and notes to the combined
financial statements are an integral part of these statements.
F-60
<PAGE> 148
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS
SIGNIFICANT ACCOUNTING POLICIES
Principles of Combination. The combined financial statements include the
accounts of certain gathering, processing, transporting and marketing operations
of companies which are wholly-owned subsidiaries of Union Pacific Resources
Group Inc. ("UPR"), a Utah Corporation. In addition, the combined financial
statements include the operations of certain gathering and processing assets
owned by wholly-owned subsidiaries of UPR that are not included in their
entirety herein. Collectively, these wholly-owned subsidiaries and assets are
considered and referred to herein as the "UPFuels Division" of UPR. All material
intra-divisional transactions have been eliminated.
The UPFuels Division accounts for its investments in pipeline partnerships
and joint ventures under the equity method of accounting for entities owned
20%-50% by the UPFuels Division and fully consolidates entities owned greater
than 50% by the UPFuels Division. The minority interest recorded by the UPFuels
Division represents the ownership of other parties in entities in which the
UPFuels Division owns greater than 50% but less than 100%.
Use of Estimates. The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions. These estimates and assumptions affect the reported
amounts of assets, liabilities, revenues and expenses and disclosure of
contingent assets and liabilities. Management believes its estimates and
assumptions are reasonable; however, there are a number of risks and
uncertainties which may cause actual results to differ materially from the
estimates.
Depreciation and amortization. Provisions for depreciation of property,
plant and equipment are computed on the straight-line method based on estimated
service lives which range from three to 30 years. The cost of acquired gas
purchase and marketing contracts are amortized using the straight-line method
over the applicable period. Goodwill is being amortized using the straight-line
method over 20 years. Amortization of goodwill was $2.0 million, $4.5 million
and $1.1 million for the years ended December 31, 1997 and 1998 and for the
quarter ended March 31, 1999, respectively. The value of goodwill is
periodically evaluated based on the expected future undiscounted operating cash
flows to determine whether any potential impairment exists.
Revenue Recognition. The UPFuels Division recognizes revenues as gas and
natural gas liquids are delivered and services are rendered. Revenues are
recorded on an accrual basis, including an estimate for gas and natural gas
liquids delivered but unbilled at the end of each accounting period.
Derivative Financial Instruments. Unrealized gains/losses on derivative
financial instruments used for hedging purposes are not recorded. Recognition of
realized gains/losses and option premium payments/receipts are deferred and
recorded in the combined statement of income when the underlying physical
product is purchased or sold. The cash flow impact of derivative and other
financial instruments is reflected in cash provided by operations in the
combined statements of cash flows.
Income Taxes. The UPFuels Division is included in the consolidated Federal
income tax return of UPR. The consolidated Federal income tax liability of UPR
is allocated among all corporate entities on the basis of the entity's
contributions to the consolidated Federal income tax liability. Full benefit of
tax losses and credits made available and utilized in UPR's consolidated Federal
income tax returns are being allocated to the individual companies generating
such items. Income tax expense represents federal income taxes as if the company
were filing a separate return.
Environmental Expenditures. Environmental expenditures related to treatment
or cleanup are expensed when incurred, while environmental expenditures which
extend the life of the property or prevent future contamination are capitalized
in accordance with generally accepted accounting principles. Liabilities for
these expenditures are recorded when it is probable that obligations have been
incurred and the amounts can
F-61
<PAGE> 149
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS--CONTINUED
be reasonably estimated, based on current law and existing technologies.
Environmental accruals are recorded at undiscounted amounts and exclude claims
for recoveries from insurance or other third parties.
Earnings Per Share. Earnings per share have been omitted from the combined
statements of income as the UPFuels Division was wholly owned by UPR for all
periods presented.
1. NATURE OF OPERATIONS
The UPFuels Division owns and operates natural gas and natural gas liquids
gathering and pipeline systems and gas processing plants and is engaged in the
business of purchasing, gathering, processing, transporting, storing and
marketing natural gas and natural gas liquids. Through a related party
transaction, the UPFuels Division markets a substantial portion of UPR's natural
gas and natural gas liquid production together with significant volumes of
natural gas and natural gas liquids produced by others. The UPFuels Division has
a diverse customer base for its hydrocarbon products.
The UPFuels Division's results of operations are largely dependent on the
difference between the prices received for its hydrocarbon products and the cost
to acquire and market such resources. Hydrocarbon prices are subject to
fluctuations in response to changes in supply, market uncertainty and a variety
of factors beyond the control of the UPFuels Division. These factors include
worldwide political instability, the foreign supply of oil and natural gas, the
price of foreign imports, the level of consumer demand and the price and
availability of alternative fuels. Historically, the UPFuels Division has been
able to manage a portion of the operating risk relating to hydrocarbon price
volatility through hedging activities.
2. ACQUISITION OF THE UPFUELS DIVISION BY DUKE ENERGY FIELD SERVICES INC.
In November 1998, UPR reached an agreement with Duke Energy Field Services,
Inc. whereby Duke Energy Field Services would acquire certain gathering,
processing, pipeline and marketing assets of UPR. The sale transaction closed
effective March 31, 1999, with the purchase price being $1.35 billion. Certain
liabilities primarily income tax and retiree benefits obligations, were not
assumed by Duke Energy Field Services in connection with the sale transaction.
3. RELATED PARTY TRANSACTIONS
The UPFuels Division enters into certain natural gas and crude hedging
transactions on behalf of UPR. Services performed by UPR on behalf of the
UPFuels Division include cash management, internal audit and tax and employee
benefits administration. Expenses for these services are included in the
statements of income and are $2.0 million and $2.0 million for the years ended
1997 (As Restated) and 1998 respectively and $.5 million for the quarter ended
March 31, 1999. Other general and administrative expenses have been allocated to
the UPFuels Division, including office rent expense. Since treasury is
considered to be a UPR corporate function, no interest expense has been
allocated to the UPFuels Division in the accompanying combined statements of
income.
The UPFuels Division has a buy/sell agreement with UPR. Under this
agreement, the UPFuels Division gathers, transports, processes and sells natural
gas and natural gas liquids for UPR and purchases natural gas and natural gas
liquids from UPR.
The charges for allocated services are based on estimated full time
equivalent headcount at fully burdened rates. The buy/sell arrangements are
based on prevailing market conditions in each regional area. Accordingly, these
transactions reflect UP Fuels results as if they were on a stand alone basis.
The following table reflects the intercompany balance outstanding at each
period end as well as the high and low balance for each period.
F-62
<PAGE> 150
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS--CONTINUED
<TABLE>
<CAPTION>
AVERAGE
BALANCE HIGH LOW
OUTSTANDING BALANCE BALANCE
----------- ------- -------
($ IN MILLIONS)
<S> <C> <C> <C>
1997........................................................ $ 93.7 $187.4 $ 0
1998........................................................ $272.4 $357.4 $187.5
First Quarter 1999.......................................... $337.5 $357.4 $317.5
</TABLE>
The following table summarizes product purchases, in volumes and dollars,
made by the UPFuels Division from UPR during each of the years ended December
31, 1997 and 1998 and the quarter ended March 31, 1999:
<TABLE>
<CAPTION>
DECEMBER 31, MARCH 31,
1997 1998 1999
--------- ------ ---------
(VOLUMES)
<S> <C> <C> <C>
Gas (MMcf/day).............................................. 860.8 923.1 846.2
Natural gas liquids (Mbbls/day)............................. 68.8 68.5 63.1
(MILLIONS OF DOLLARS)
Gas......................................................... $628.4 $630.1 $140.1
Natural gas liquids......................................... $281.3 $203.5 $ 43.3
</TABLE>
4. SIGNIFICANT ACQUISITION
Highlands Gas Corporation. In August 1997, the UPFuels Division acquired
100% of the outstanding stock of Highlands Gas Corporation ("Highlands") for an
adjusted purchase price of approximately $179.4 million. Highlands is in the
business of gathering, purchasing, processing and transporting natural gas and
natural gas liquids. The acquisition included three natural gas processing
plants, five gathering systems with over 700 miles of gas and natural gas
liquids gathering pipeline and 400 miles of transportation pipeline located in
Western Texas and Eastern New Mexico. Results of operations for Highlands
subsequent to the acquisition date are included in the consolidated statements
of income.
The following unaudited pro forma combined results of operations for the
year ended December 31, 1997 are presented as if the Highlands acquisition had
been made at the beginning of the year. The unaudited pro forma information is
not necessarily indicative of either the results of operations that would have
occurred had the purchase been made during the periods presented or the future
results of the combined operations.
PRO FORMA RESULTS
<TABLE>
<CAPTION>
1997
---------------------
(MILLIONS OF DOLLARS)
<S> <C>
Revenues........................................ $3,376.8
Operating income................................ 96.3
Net income...................................... $ 54.5
</TABLE>
5. FINANCIAL INSTRUMENTS
Hedging. The UPFuels Division has established policies and procedures for
managing risk within its organization. It is balanced by internal controls and
governed by a risk management committee. The level of risk assumed by the
UPFuels Division is based on its objectives and earnings, and its capacity to
manage risk. Limits are established for each major category of risk, with
exposures monitored and managed by UPFuels
F-63
<PAGE> 151
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS--CONTINUED
Division management, and reviewed semi-annually by the risk management
committee. Major categories of the UPFuels Division's risk are defined as
follows:
Commodity Price Risk -- Non-Trading Activities. The UPFuels Division uses
derivative financial instruments for non-trading purposes in the normal course
of business to manage and reduce risks associated with contractual commitments,
price volatility, and other market variables in conjunction with transportation,
storage, and customer service programs. These instruments are generally put in
place to limit risk of adverse price movements, however, when this is done,
these same instruments usually limit future gains from favorable price
movements. Such risk management activities are generally accomplished pursuant
to exchange-traded contracts or over-the-counter options.
Recognition of realized gains/losses and option premium payments/receipts
are also deferred in the combined statements of income until the underlying
physical product is sold. Unrealized gains/losses on derivative financial
instruments are not recorded. The cash flow impact of derivative and other
financial instruments is reflected as cash flows provided from operations in the
combined statements of cash flows.
Commodity Price Risk -- Trading Activities. Periodically, the UPFuels
Division may enter into transactions involving a wide range of energy related
derivative financial transactions that are not the result of hedging activities.
These instruments are generally put into place based on the UPFuels Division's
analysis and expectations with respect to price movement or changes in other
market variables. As of March 31, 1999, there were no transactions in place
which would materially affect the results of operations or financial condition
of the UPFuels Division.
Credit Risk. Credit risk is the risk of loss as a result of nonperformance
by counterparties pursuant to the terms of their contractual obligations.
Because the loss can occur at some point in the future, a potential exposure is
added to the current replacement value to arrive at a total expected credit
exposure. The UPFuels Division has established methodologies to establish
limits, monitor and report creditworthiness and concentrations of credit to
reduce such credit risk. At March 31, 1999, the UPFuels Division's largest
credit risk associated with any single counterparty, represented by the net fair
value of open contracts with such counterparty was $2.2 million.
Performance Risk. Performance risk results when a counterparty fails to
fulfill its contractual obligations such as commodity pricing or volume
commitments. Typically, such risk obligations are defined within the trading
agreements. The UPFuels Division utilizes its credit risk methodology to manage
performance risk.
Concentrations of Credit Risk. Financial instruments which subject the
UPFuels Division to concentrations of credit risk consist principally of trade
receivables and short-term cash investments. A significant portion of the
UPFuels Division's trade receivables relate to customers in the energy industry,
and, as such, the UPFuels Division is directly affected by the economy of that
industry. However, excluding the relationship with UPR, the credit risk
associated with trade receivables is minimized by the UPFuels Division's diverse
customer base which includes local gas distribution companies, power generation
facilities, pipelines, industrial plants and other wholesale marketing
companies. Ongoing procedures are in place to monitor the creditworthiness of
customers. The UPFuels Division generally requires no collateral from its
customers and historically has not experienced significant losses on trade
receivables.
6. INCOME TAXES
The UPFuels Division is included in the consolidated Federal income tax
return of UPR. The consolidated Federal income tax liability of UPR is allocated
among all corporate entities on the basis of the entity's contributions to the
consolidated Federal income tax liability. Full benefit of tax losses and
credits made available and utilized in UPR's consolidated Federal income tax
returns are being allocated to the individual companies generating such items.
F-64
<PAGE> 152
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS--CONTINUED
Components of income tax expense for the years ended December 31, 1997 and
1998 and for the quarter ended March 31, 1999.
<TABLE>
<CAPTION>
1997 1998 1999
----- ------ -----
(MILLIONS OF DOLLARS)
<S> <C> <C> <C>
Current:
Federal.................................................. $17.2 $ 46.7 $(2.7)
State.................................................... .9 2.6 (0.1)
----- ------ -----
Total current.................................... 18.1 49.3 (2.8)
Deferred:
Federal.................................................. 14.2 (22.7) 10.2
State.................................................... 0.9 (1.3) 0.6
----- ------ -----
Total deferred...................................... 15.1 (24.0) 10.8
----- ------ -----
Total............................................ $33.2 $ 25.3 $ 8.0
===== ====== =====
</TABLE>
A reconciliation between statutory and effective tax rates for the years
ended December 31, 1997 and 1998 and for the quarter ended March 31, 1999 is as
follows:
<TABLE>
<CAPTION>
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Statutory tax rate.......................................... 35.0% 35.0% 35.0%
State taxes -- net.......................................... 2.0% 2.0% 2.0%
---- ---- ----
Effective tax rate........................................ 37.0% 37.0% 37.0%
==== ==== ====
</TABLE>
All tax years prior to 1986 have been closed with the Internal Revenue
Service ("IRS"). On behalf of the UPFuels Division, UPR, through Union Pacific
Corporation ("UPC"), is negotiating with the Appeals Office concerning 1986
through 1989. The IRS is examining UPR's returns for 1990 through 1994 in
connection with the IRS' examination of UPC's returns. The UPFuels Division
believes it has adequately provided for Federal and state income taxes.
7. LEASES
The UPFuels Division leases certain compressors and other property. Future
minimum lease payments for operating leases with initial non-cancelable lease
terms in excess of one year as of March 31, 1999, are as follows:
<TABLE>
<CAPTION>
(MILLIONS OF DOLLARS)
<S> <C>
1999............................................ $ 1.9
2000............................................ 2.5
2001............................................ 2.4
2002............................................ 1.5
2003............................................ 1.2
Later years..................................... 5.4
-----
Total minimum payments................ $14.9
=====
</TABLE>
Rent expense for operating leases with terms exceeding one year was $1.1
million and $1.3 million for the years ended December 31, 1997 and 1998,
respectively, and $0.5 million for the quarter ended March 31, 1999. Currently
there is no sublease income for the next five years or thereafter.
F-65
<PAGE> 153
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS--CONTINUED
8. EMPLOYEE STOCK OPTION PLANS
Stock Option and Retention Stock Plans. Pursuant to the UPR's stock option
and retention stock plans, UPR stock options under the plans are granted at 100%
of fair market value at the date of grant, become exercisable no earlier than
one year after grant and are exercisable for a period of up to eleven years from
grant date. Option grants have been made to directors, officers and employees
and vest over a period up to ten years from the grant date.
Retention shares of UPR common stock are awarded under the plans to
eligible employees, subject to forfeiture if employment terminates during the
prescribed retention period, generally one to five years from grant. Multi-year
retention stock awards also have been made, with vesting two to five years from
grant.
Expense related to these stock option and retention stock programs of UPR,
which pertain to UPFuels Division employees, amounted to $1.2 million, $1.3
million and $.7 million for the years ended 1997 and 1998 and the quarter ended
March 31, 1999, respectively.
Since UPR applies the intrinsic value method in accounting for its stock
option and retention stock plans, it generally records no compensation cost for
its stock option plans. Had compensation cost for UPR's stock option plan been
determined based on the fair value at the grant dates for awards to UPFuels
Division employees under the plan and for options that were converted at the
times of the initial public offering and spin-off of UPR from UPC, the UPFuels
Division's net income would have been reduced by $.6 million, $1.9 million and
$0.1 million for the years ended December 31, 1997 and 1998 and the quarter
ended March 31, 1999, respectively.
Employee Stock Ownership Plan. Effective January 2, 1997, UPR instituted an
employee stock ownership plan ("ESOP"). The ESOP purchased 3.7 million shares or
$107.3 million of newly issued common stock (the "ESOP Shares") from UPRG, which
will be used to fund UPR's matching obligation under its 401(k) Thrift Plan. All
regular employees of the UPFuels Division are eligible to participate in the
ESOP.
During the years ended December 31, 1997 and 1998, and the quarter ended
March 31, 1999, compensation cost related to the allocation of ESOP shares to
participants' accounts was $1.4 million, $1.6 million and $0.4 million,
respectively, for the UPFuels Division.
9. ENVIRONMENTAL EXPOSURE
The UPFuels Division generates and disposes of hazardous and nonhazardous
waste in its current and former operations and is subject to increasingly
stringent Federal, state and local environmental regulations. Certain Federal
legislation imposes joint and several liability for the remediation of various
sites; consequently, the UPFuels Division's ultimate environmental liability may
include costs relating to other parties in addition to costs relating to its own
activities at each site. In addition, the UPFuels Division is or may be liable
for certain environmental remediation matters involving existing or former
facilities.
The UPFuels Division has recorded environmental reserves related to future
costs of all sites where the UPFuels Division's obligation is probable and where
such costs reasonably can be estimated. This accrual includes future costs for
remediation and restoration of sites, as well as for ongoing monitoring costs,
but excludes any anticipated recoveries from third parties.
The UPFuels Division also is involved in reducing emissions, spills and
migration of hazardous materials. Remediation of identified sites and control of
environmental exposures required $1.2 million in 1998 and no spending for the
quarter ended March 31, 1999.
F-66
<PAGE> 154
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS--CONTINUED
10. COMMITMENTS AND CONTINGENCIES
The UPFuels Division is party to several long-term firm gas transportation
agreements, the largest of which are with Kern River Gas Transportation Company
("Kern River"), Texas Gas Transmission Corporation ("Texas Gas"), and Pacific
Gas Transmission ("PGT"). At December 31, 1997, the UPFuels Division had a keep
whole agreement with UPR which expired at the end of 2003 whereby UPR reimbursed
the UPFuels Division for the excess of the contractual fixed price over the
prevailing market price for the transportation. Conversely, the UPFuels
Division, under the keep whole agreement, was to pay UPR when the prevailing
market price exceeded the contractual fixed price. Accordingly, at December 31,
1997, the UPFuels Division recorded a reserve for the fair value of the
difference between the fixed rate under the firm transportation agreements and
the estimated market rates for the period from 2004 to the end of the respective
contract periods. At December 31, 1997, the reserves, which were included in
other long-term liabilities, were $13.0 million, $5.5 million, and $7.6 million
for the Kern River, Texas Gas, and PGT agreements, respectively.
In conjunction with the sale of the UPFuels Division to Duke Energy Field
Services, Inc. during 1998 the UPFuels Division extended the keep whole
agreement with UPR to cover a 10 year period commencing March 1, 1999 or through
the expiration of the contract, whichever is earlier. In addition, UPR retained
the transportation contract with Kern River. Accordingly, no reserves for the
Kern River and Texas Gas Agreements were recorded at December 31, 1998 or March
31, 1999 and $17.6 million was recorded at December 31, 1998 and March 31, 1999
for the PGT agreement, reflecting additional liabilities for volumes acquired in
1998, partially offset by the extension of the keep whole agreement. During
1998, $8.5 million was recorded as a change in divisional equity for the change
in the keep whole agreement. A detailed explanation of the three major long-term
firm transportation agreements are as follows:
Under the Kern River transportation agreement which expires in 2007, the
UPFuels Division has the right to transport 75 MMcfd of gas on the Kern River
Pipeline system which extends from Opal, Wyoming, to an interconnection with the
Southern California Gas Company pipeline system in southern California. Nine
years remain on the primary term of the agreement, and the current
transportation rate is $0.69 per Mcf. Thereafter, this rate can change based on
Kern River's cost of service and upon rate regulation policies of the Federal
Energy Regulatory Commission ("FERC"). Under a 1993 ruling of the FERC, the
UPFuels Division is obligated to pay all of the fixed costs included in the
transportation rate, whether or not the UPFuels Division actually uses Kern
River's pipeline to transport gas. Those fixed costs presently amount to $0.61
per Mcf. The undiscounted amount of the nine year fixed cost commitment,
assuming no future changes in the rate, is $136 million. The 1993 FERC ruling
was issued notwithstanding a provision in the transportation agreement between
Kern River and the UPFuels Division in which the parties agreed that a portion
of the fixed costs would be paid by the UPFuels Division only if and to the
extent that the UPFuels Division uses the pipeline. In light of recent changes
in the regulatory policies of FERC, the UPFuels Division is seeking
reinstatement of the contractually agreed rate structure, but there is no
assurance that such efforts will be successful.
The UPFuels Division is a party to an additional agreement under which it
may acquire, in 2001, at its option, an additional 25 MMcfd of transportation
rights on the Kern River system beginning in 2002.
Under the Texas Gas transportation agreement, which expires in 2008, the
UPFuels Division has the rights to transport 90 MMcfd of gas from the UPFuels
Division's East Texas plant. The UPFuels Division is obligated to pay a fixed
transportation rate of $0.33 per Mmbtu regardless of the volumes transported
under the agreement. The undiscounted amount of this commitment is $104 million.
Under the PGT transportation agreement, which expires in 2023, the UPFuels
Division has the rights to transport 25 MMcfd of gas from Kingsgate, British
Columbia to the California/Oregon border. The UPFuels Division is obligated to
pay a fixed transportation rate of $0.33 per Mmbtu regardless of the volumes
F-67
<PAGE> 155
UPFUELS DIVISION
NOTES TO COMBINED FINANCIAL STATEMENTS--CONTINUED
transported under the agreement. However, the UPFuels Division has third party
agreements that reimburse the UPFuels Division for 90 percent of the firm
transportation cost until October 2002. As part of the third party agreements,
the UPFuels Division assigned 50 percent of the firm transportation capacity.
The term for the keep whole agreement for this contract commences on November 1,
2002 and terminates on February 28, 2009. The undiscounted amount of this
commitment, net of the third party reimbursements, is $64 million.
During 1998, the UPFuels Division assumed responsibility for additional
long-term firm transportation agreements with PGT to transport gas from
Kingsgate, British Columbia to the California/Oregon border. Under the
transportation agreements, the UPFuels Division has the rights to transport 106
Mmbtu per day of which 47 Mmbtu per day will expire in October 2007 and the
balance of the contract commitment will expire in October 2023. The UPFuels
Division does have a third party agreement that recovers all the transportation
cost for 20 Mmbtu per day through June 2011.
The UPFuels Division is a defendant in a number of lawsuits and is involved
in governmental proceedings arising in the ordinary course of business,
including contract claims, personal injury claims and environmental claims.
While management of the UPFuels Division cannot predict the outcome of such
litigation and other proceedings, management does not expect those matters to
have a materially adverse effect on the consolidated financial condition or
results of operations of the UPFuels Division.
F-68
<PAGE> 156
[DUKE ENERGY FIELD SERVICES LOGO]
<PAGE> 157
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Duke Energy Field Services
Corporation (the "company") in connection with the sale of common stock being
registered. All amounts are estimates except the SEC registration fee and the
NASD filing fees.
<TABLE>
<S> <C>
SEC Registration fee........................................ $ 211,200
NASD fee.................................................... 30,500
NYSE initial listing fee.................................... 500,000
Printing and engraving...................................... 1,500,000
Legal fees and expenses..................................... 1,500,000
Accounting fees and expenses................................ 1,500,000
Transfer agent fees......................................... 10,000
Miscellaneous expenses...................................... 1,148,300
----------
Total............................................. $6,400,000*
==========
</TABLE>
- ---------------
* The underwriters have agreed to reimburse the company for expenses in an
amount not to exceed $ .
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
The company's certificate of incorporation and bylaws provide that
indemnification shall be provided for all current and former directors and may
be provided for all current or former officers to the fullest extent permitted
by the DGCL.
As permitted by the DGCL, the certificate of incorporation provides that
directors of the company shall have no personal liability to the company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except (1) for any breach of the director's duty of loyalty to the company or
its stockholders,
II-1
<PAGE> 158
(2) for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (3) under Section 174 of the DGCL or (4)
for any transaction from which a director derived an improper personal benefit.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
The company has not sold any securities, registered or otherwise, within
the past three years, except as set forth below.
On December 8, 1999, the company issued 1,000 shares of its common stock to
Duke Energy Corporation ("Duke Energy") for $1,000. In so doing, the company
relied on the provisions of Section 4(2) of the Securities Act of 1933, as
amended (the "Securities Act"), in claiming exemption for the offering, sale and
delivery of such securities from registration under the Securities Act.
On December 16, 1999, Duke Energy, Phillips Petroleum Company ("Phillips")
and Duke Energy Field Services, LLC ("Field Services LLC") entered into a
Contribution Agreement (the "Contribution Agreement") pursuant to which Duke
Energy and Phillips, on March 31, 2000, contributed their respective midstream
natural gas assets to Field Services LLC, a subsidiary of the company, in
exchange for member interests in Field Services LLC and one-time cash payments.
Upon consummation of the offering contemplated by this registration statement,
the subsidiary ("Merger Subsidiary") that indirectly holds Phillips' interest in
Field Services LLC will be merged into the company, and, as a result, the
capital stock of Merger Subsidiary, all of which is owned by Phillips, will be
converted into shares of common stock of the company and the capital stock of
the company before the merger, all of which is owned by Duke Energy, will be
converted into new shares of common stock of the company. The exact allocation
between Duke Energy and Phillips of shares of common stock of the company issued
in the merger will be determined by the average of the closing prices of the
company's common stock on the New York Stock Exchange Composite Tape on the
stock's first five trading days. In so doing, the company relied on the
provisions of Section 4(2) of the Securities Act in claiming exemption for the
offering, sale and delivery of such securities from registration under the
Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1** -- Form of Underwriting Agreement
2.1+ -- Form of Agreement of Merger among Duke Energy Field
Services Corporation and Phillips Gas Company
Shareholder, Inc.
3.1+ -- Form of Amended and Restated Certificate of Incorporation
3.2+ -- Form of Amended and Restated Bylaws
4.1** -- Form of Common Stock Certificate
5.1** -- Opinion of Vinson & Elkins L.L.P.
10.1* -- Employment Agreement dated as of April 1, 2000 between
Duke Energy Field Services Corporation and Mike J.
Panatier
10.2+ -- Form of Registration Rights Agreement among Duke Energy
Corporation, Phillips Petroleum Company and Duke Energy
Field Services Corporation.
10.3+ -- Services Agreement dated as of March 14, 2000 by and
between Duke Energy Corporation, Duke Energy Business
Services, LLC, Pan Service Company, Duke Energy Gas
Transmission Corporation and Duke Energy Field Services,
LLC
10.4+ -- Transition Services Agreement dated as of March 17, 2000
among Phillips Petroleum Company and Duke Energy Field
Services, LLC
</TABLE>
II-2
<PAGE> 159
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
10.5* -- Trademark License Agreement dated as of March 31, 2000
among Duke Energy Corporation and Duke Energy Field
Services, LLC
10.6* -- Form of Shareholders Agreement among Duke Energy Natural
Gas Corporation and Phillips Petroleum Company
10.7(a)+ -- Contribution Agreement dated as of December 16, 1999
among Duke Energy Corporation, Phillips Petroleum Company
and Duke Energy Field Services, LLC (incorporated by
reference to Exhibit 2.1 to Duke Energy Corporation's
Form 8-K filed December 30, 1999)
10.7(b)+ -- First Amendment to Contribution and Governance Agreement
dated as of March 23, 2000 among Phillips Petroleum
Company, Duke Energy Corporation and Duke Energy Field
Services, LLC
10.8+ -- NGL Output Purchase and Sale Agreement effective as of
January 1, 2000 between GPM Gas Corporation and Phillips
66 Company, a division of Phillips Petroleum Company, as
amended by Amendment No. 1 dated December 16, 1999
10.9+ -- Sulfur Sales Agreement effective as of January 1, 1999
between Phillips 66 Company, a division of Phillips
Petroleum Company, and GPM Gas Corporation
10.10* -- Parent Company Agreement dated as of March 31, 2000 among
Phillips Petroleum Company, Duke Energy Corporation, Duke
Energy Field Services, LLC and Duke Energy Field Services
Corporation
10.11* -- Consulting Agreement dated as of April 1, 2000 between
Duke Energy Field Services Corporation and William W.
Slaughter
10.12** -- Credit Facility with Bank of America and other commercial
lenders dated March 31, 2000
10.13** -- Credit Facility with Duke Capital Corporation dated April
4, 2000
10.14** -- 2000 Long Term Incentive Plan
21.1** -- Subsidiaries of the Company
23.1* -- Consent of Ernst & Young LLP
23.2* -- Consent of Arthur Andersen LLP
23.3* -- Consent of Deloitte & Touche LLP (Denver)
23.4* -- Consent of Deloitte & Touche LLP (Fort Worth)
23.5** -- Consent of Vinson & Elkins L.L.P. (included in Exhibit
5.1)
24.1+ -- Power of Attorney (included in signature page)
27.1* -- Financial Data Schedule
99.1+ -- Consent of Michael J. Panatier to Serve as Director dated
March 13, 2000
99.2+ -- Consent of J.J. Mulva to Serve as Director dated March
10, 2000
99.3* -- Consent of Milton Carroll to Serve as Director dated May
1, 2000
99.4* -- Consent of William H. Grigg to Serve as Director dated
May 1, 2000
99.5* -- Consent of John E. Lowe to Serve as Director dated May 1,
2000
99.6* -- Consent of Wayne W. Murdy to Serve as Director dated May
1, 2000
99.7* -- Consent of Ruth G. Shaw to Serve as Director dated May 1,
2000
99.8* -- Consent of C.J. Silas to Serve as Director dated May 1,
2000
</TABLE>
- ---------------
* Filed herewith.
** To be filed by amendment.
II-3
<PAGE> 160
+ Previously filed.
(B) FINANCIAL STATEMENT SCHEDULE
No financial statement schedules are required to be included herewith or
they have been omitted because the information required to be set forth therein
is not applicable.
ITEM 17. UNDERTAKINGS.
The Registrant hereby undertakes:
(a) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
in Item 14, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer, or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(b) To provide to the underwriter(s) at the closing specified in the
underwriting agreements, certificates in such denominations and registered
in such names as required by the underwriter(s) to permit prompt delivery
to each purchaser.
(c) For purpose of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared effective.
(d) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 161
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 2 to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Denver, State of Colorado, on the 3rd day of May, 2000.
Duke Energy Field Services
Corporation
By:
/s/ JIM W. MOGG
----------------------------------
Name: Jim W. Mogg
Title: Chairman of the Board,
President and Chief
Executive Officer
(Principal Executive
Officer)
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to No. 2 Registration Statement has been signed below by the
following persons in the capacities indicated and on the 3rd day of May, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JIM W. MOGG Chairman of the Board, President and Chief
- ----------------------------------------------------- Executive Officer (Principal Executive
Jim W. Mogg Officer)
/s/ DAVID D. FREDERICK Chief Financial Officer (Principal Financial
- ----------------------------------------------------- and Accounting Officer)
David D. Frederick
FRED J. FOWLER* Director
- -----------------------------------------------------
Fred J. Fowler
RICHARD B. PRIORY* Director
- -----------------------------------------------------
Richard B. Priory
* By: /s/ DAVID D. FREDERICK
- -----------------------------------------------------
David D. Frederick, pursuant to a power of
attorney filed with the Registration Statement
No. 333-32502, filed with the Securities and
Exchange Commission on March 15, 2000.
</TABLE>
II-5
<PAGE> 162
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1** -- Form of Underwriting Agreement
2.1+ -- Form of Agreement of Merger among Duke Energy Field
Services Corporation and Phillips Gas Company
Shareholder, Inc.
3.1+ -- Form of Amended and Restated Certificate of Incorporation
3.2+ -- Form of Amended and Restated Bylaws
4.1** -- Form of Common Stock Certificate
5.1** -- Opinion of Vinson & Elkins L.L.P.
10.1* -- Employment Agreement dated as of April 1, 2000 between
Duke Energy Field Services Corporation and Mike J.
Panatier
10.2+ -- Form of Registration Rights Agreement among Duke Energy
Corporation, Phillips Petroleum Company and Duke Energy
Field Services Corporation.
10.3+ -- Services Agreement dated as of March 14, 2000 by and
between Duke Energy Corporation, Duke Energy Business
Services, LLC, Pan Service Company, Duke Energy Gas
Transmission Corporation and Duke Energy Field Services,
LLC
10.4+ -- Transition Services Agreement dated as of March 17, 2000
among Phillips Petroleum Company and Duke Energy Field
Services, LLC
10.5* -- Trademark License Agreement dated as of March 31, 2000
among Duke Energy Corporation and Duke Energy Field
Services, LLC
10.6* -- Form of Shareholders Agreement among Duke Energy Natural
Gas Corporation and Phillips Petroleum Company
10.7(a)+ -- Contribution Agreement dated as of December 16, 1999
among Duke Energy Corporation, Phillips Petroleum Company
and Duke Energy Field Services, LLC (incorporated by
reference to Exhibit 2.1 to Duke Energy Corporation's
Form 8-K filed December 30, 1999)
10.7(b)+ -- First Amendment to Contribution and Governance Agreement
dated as of March 23, 2000 among Phillips Petroleum
Company, Duke Energy Corporation and Duke Energy Field
Services, LLC
10.8+ -- NGL Output Purchase and Sale Agreement effective as of
January 1, 2000 between GPM Gas Corporation and Phillips
66 Company, a division of Phillips Petroleum Company, as
amended by Amendment No. 1 dated December 16, 1999
10.9+ -- Sulfur Sales Agreement effective as of January 1, 1999
between Phillips 66 Company, a division of Phillips
Petroleum Company, and GPM Gas Corporation
10.10* -- Parent Company Agreement dated as of March 31, 2000 among
Phillips Petroleum Company, Duke Energy Corporation, Duke
Energy Field Services, LLC and Duke Energy Field Services
Corporation
10.11* -- Consulting Agreement dated as of April 1, 2000 between
Duke Energy Field Services Corporation and William W.
Slaughter
10.12** -- Credit Facility with Bank of America and other commercial
lenders dated March 31, 2000
10.13** -- Credit Facility with Duke Capital Corporation dated April
4, 2000
10.14** -- 2000 Long Term Incentive Plan
21.1** -- Subsidiaries of the Company
23.1* -- Consent of Ernst & Young LLP
23.2* -- Consent of Arthur Andersen LLP
23.3* -- Consent of Deloitte & Touche LLP (Denver)
23.4* -- Consent of Deloitte & Touche LLP (Fort Worth)
23.5** -- Consent of Vinson & Elkins L.L.P. (included in Exhibit
5.1)
24.1+ -- Power of Attorney (included in signature page)
27.1* -- Financial Data Schedule
99.1+ -- Consent of Michael J. Panatier to Serve as Director dated
March 13, 2000
99.2+ -- Consent of J.J. Mulva to Serve as Director dated March
10, 2000
</TABLE>
<PAGE> 163
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
99.3* -- Consent of Milton Carroll to Serve as Director dated May
1, 2000
99.4* -- Consent of William H. Grigg to Serve as Director dated
May 1, 2000
99.5* -- Consent of John E. Lowe to Serve as Director dated May 1,
2000
99.6* -- Consent of Wayne W. Murdy to Serve as Director dated May
1, 2000
99.7* -- Consent of Ruth G. Shaw to Serve as Director dated May 1,
2000
99.8* -- Consent of C.J. Silas to Serve as Director dated May 1,
2000
</TABLE>
- ---------------
* Filed herewith.
** To be filed by amendment.
+ Previously filed.
<PAGE> 1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into this 1st day
of April, 2000, by and between DUKE ENERGY FIELD SERVICES ASSETS, L.L.C. ("DEFS
Assets"), with its principal executive offices in Denver, Colorado, and Michael
J. Panatier ("Executive").
WHEREAS, Executive is now and for a number of years has been in the
employ of GPM, a division of Phillips Petroleum Company ("Phillips"); and
WHEREAS Duke Energy Corporation ("Duke Energy") and Phillips have
announced their intention to create a joint venture combining certain assets
into a company called Duke Energy Field Services, L.L.C. ("DEFS, L.L.C."); and
WHEREAS DEFS Assets desires to continue the employment of Executive
and to receive the benefit of the Executive's knowledge, experience, reputation
and contacts; and
WHEREAS, the parties desire that this Agreement set forth the terms
and conditions of Executive's employment by DEFS Assets and that it represents
the entire agreement of the parties with respect to that subject;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Employment. Upon the satisfactory completion of the planned joint
venture transaction between Duke Energy and Phillips, DEFS Assets hereby
employs Executive, and Executive hereby accepts such employment, upon the terms
and conditions set forth herein.
1
<PAGE> 2
2. Position and Duties.
(a) Position. At all times during the term of employment
under this Agreement, Executive shall hold a position of responsibility and
importance with the functions, duties and responsibility of Vice Chairman of
the Board of DEFS, L.L.C. and will report directly to the position of Chairman,
President and CEO. It is expressly understood that nothing in the immediately
foregoing sentence shall preclude the Board of Directors of DEFS, L.L.C.
("Board") from making such organizational and reporting changes as well as
promotions as the Board may in good faith deem desirable for the good of DEFS,
L.L.C. The parties acknowledge that Executive's duties and responsibilities
enumerated herein with respect to DEFS, L.L.C. will be transferred to a new
entity to be formed and to be known as Duke Energy Field Services Corporation
("DEFS Corporation").
(b) Duties. Executive's duties shall include, in addition to
those enumerated in the governing documents of DEFS, L.L.C., managing such
functions or segments of DEFS, L.L.C.'s business as may be directed from
time-to-time by the Chairman of the Board. Executive acknowledges and agrees
that whatever his duties hereunder may be he owes DEFS, L.L.C. a duty of
loyalty, fidelity and allegiance to act at all times in the best interests of
DEFS, L.L.C. and to do no act that would injure DEFS, L.L.C.'s reputation.
(c) Performance. Throughout the period of employment
Executive shall devote his full time and undivided attention during normal
business hours to the business and affairs of DEFS, L.L.C., except for
reasonable vacation periods and except for periods of illness or incapacity.
Executive may reasonably participate as a member in community, civic or similar
organizations and may pursue personal investments that do not interfere with
the normal business activities of DEFS, L.L.C., DEFS Corporation, or Duke
Energy.
(d) Loyal and Conscientious Performance. Executive shall act
at all times in compliance with the policies, rules and decisions adopted from
time-to-time by DEFS, L.L.C. and perform all duties and obligations required of
him by this Agreement in a loyal and conscientious manner.
(e) Location. Executive's office shall be located in Houston,
Texas or such other location as the Board may designate and the Executive
agree.
2
<PAGE> 3
(f) Authority. Executive shall be vested with all authority
reasonably necessary to carry out his duties and responsibilities as set forth
in this Section 2.
3. Term of Employment. The term of employment pursuant to this
Agreement shall commence on the effective date of the joint venture transaction
between Duke Energy and Phillips and shall continue for a period of two (2)
years thereafter unless this Agreement is otherwise amended pursuant to its
terms.
4. Base Compensation. Executive's monthly base salary is $32,000. This
base compensation will be payable in installments as specified by the policies
of DEFS Assets and subject to applicable state and federal income tax and
social security tax withholding requirements. Executive's base salary shall be
subject to increases recommended by the Compensation Committee of the Board of
Directors of DEFS, L.L.C. ("Compensation Committee"), and approved by the Board
which shall review the Executive's salary and total compensation periodically.
5. Annual Cash Incentive Payment. Executive shall be eligible to
participate in the annual bonus program for executive officers of DEFS Assets.
The target under such bonus shall be 60% of base salary. Such bonus shall be
determined under the provisions of the incentive plan established by the
Compensation Committee of the Board of Directors.
6. Long Term Incentive. Commencing with the public offering of DEFS
Corporation shares, Executive shall receive stock grants annually with a value
as determined by DEFS Corporation to be 220% of base salary, composed of stock
options valued at 150% of base salary and restricted stock valued at 70% of
base salary. The Compensation Committee will determine the specific provisions
of the awards; provided, however, that any awards made during the initial term
of this Agreement will vest on the second anniversary of the public offering.
The terms of the awards will govern their administration; provided, however,
that if Executive violates any restrictive covenants as provided in Sections 9
or 10 of this Agreement, during the term of employment specified in
3
<PAGE> 4
Section 3 of this Agreement or within a six-month period following termination
of employment for any reason, Executive will repay any income realized or
realizable from the long-term incentive awards granted under this Section 6.
7. Retention Award. Executive will be awarded a restricted stock
retention award (the "Retention Award") valued by DEFS Corporation at 250% of
base salary on the date of the public offering. One-half of the Retention award
will vest on the first anniversary of the effective date of this Agreement and
one-half will vest on the second anniversary of the effective date of this
Agreement. Vesting of the Retention Award will occur only if Executive is an
active employee on the vesting date. If the Executive violates any restrictive
covenants as provided in Sections 9 or 10 of this Agreement, during the term of
employment specified in Section 3 of this Agreement or within a six-month
period following termination of employment for any reason, Executive will repay
any income realized or realizable from the Retention Award.
8. Executive Benefits. Executive shall participate in all benefit
plans available to similarly-situated executives of DEFS Assets. The
availability and terms of such benefit plans are set by the Compensation
Committee and subject to change from time-to-time. There is no assurance that
the benefit plans will not be changed or eliminated.
9. Confidentiality. Executive shall not, at any time, use (other than
in the ordinary course of fulfilling his duties as an employee of DEFS Assets),
divulge or otherwise disclose, either directly or indirectly, any confidential
or proprietary information (including without limitation any customer or
prospect list, supplier list, acquisition or merger targets, business plans or
strategies, data, records, or financial information) concerning the business,
policies or operations of DEFS, L.L.C., or its affiliates, which Executive may
have learned on or prior to the date hereof or during the term of Executive's
employment by DEFS L.L.C. (as employee, consultant, shareholder, officer,
controlling person, agent or otherwise) and which information is not generally
known to the public. Executive's obligations under this Section 9 shall survive
any termination of his employment.
4
<PAGE> 5
10. Covenant Not To Compete. In exchange for the consideration being
paid under this Agreement and in order to protect the goodwill, business and
privacy interests of DEFS, L.L.C., DEFS Corporation, and their affiliates,
Executive shall not, for a period of six (6) months following the termination
of Executive's employment for any reason, engage in the following activities in
any locality:
(a) Executive shall not be employed by or render services to
a third party or on a self-employed basis involving the same type of work and
responsibilities he performed for DEFS, L.L.C., including but not limited to
the management of enterprises engaged in the transportation of natural gas and
the gathering, processing, transportation and marketing of natural gas liquids
and condensate.
(b) Executive shall not compete in any form or fashion with
DEFS, L.L.C. by utilizing or disclosing or causing to be utilized or disclosed
DEFS, L.L.C.'s trade secrets or confidential and proprietary information.
(c) Executive shall not solicit, directly or indirectly,
DEFS, L.L.C.'s customers, suppliers, or employees.
Except as otherwise provided in Section 11 hereof, the provisions of
this Section 10 shall survive the termination of this Agreement.
11. Termination.
(a) Notwithstanding anything to the contrary contained
herein, Executive may terminate his employment at any time by (i) resigning or
(ii) for cause. For the purposes of this subsection 11(a), "cause" is defined
as the failure of DEFS Assets to fulfill its obligations under any of the
provisions of this Agreement, including, but not limited to, compensation,
benefits, awarding titles or changing reporting relationships.
(b) Executive's employment may be terminated by DEFS Assets
at any time as follows:
(i) due to the death of Executive;
(ii) due to a disability which prevents Executive
from performing the essential functions of his full duties for a period of
ninety (90) consecutive business days at anytime during the term of this
Agreement;
5
<PAGE> 6
(iii) for cause, which shall mean (w) the willful
and continued failure by Executive to substantially perform his duties with
DEFS, L.L.C. or its affiliates (other than any such failure resulting from his
incapacity due to physical or mental illness) after demand for substantial
performance is delivered to him by the Chairman which specifically identifies
the manner in which DEFS, L.L.C. believes the Executive has not substantially
performed his duties, (x) the willful engaging by the Executive in gross
misconduct materially and demonstrably injurious to the property or business of
DEFS, L.L.C. or any of its affiliates, (y) the willful material violation of
paragraphs 9 or 10, or (z) fraud, misappropriation or commission of felony. For
purposes of this subsection, no act or failure to act on the Executive's part
will be considered "willful" unless done or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission was in the
best interest of DEFS, L.L.C. or its affiliates or not opposed to the interests
of DEFS, L.L.C. or its affiliates.
(iv) for any reason other than death, disability or
for cause.
(c) In the event of Executive's resignation or early
termination pursuant to subsections 11(b)(i), (ii), or (iii) directly above,
Executive shall be entitled only to his base salary earned through the date of
termination. Executive's rights to any bonus shall be forfeited, but the
termination shall not affect any rights of Executive that have been vested
under any employee benefit plan or arrangement.
(d) In the event that DEFS Assets terminates Executive
pursuant to subsection 11(b)(iv) above, or Executive voluntarily resigns
pursuant to subsection 11(a) (ii) above, Executive shall be entitled to
severance in accordance with the provisions of Section 12 of this Agreement.
(e) In the event DEFS Assets decides to terminate Executive,
DEFS Assets will cooperate with Executive in determining when and how to
announce such termination. Executive shall not receive any compensation for any
period of time post-termination, except for the severance benefits provided in
Section 12 hereof.
12. Severance Payment.
(a) In the event Executive terminates his employment pursuant
to subsection 11(a)(i) hereof within 12 months of the effective date of this
Agreement, he
6
<PAGE> 7
shall forfeit the Retention Award under Section 7 hereof and other long term
incentives granted pursuant to the provisions of Section 6 hereof.
(b) In the event DEFS Assets terminates the employment of
Executive within 12 months of the effective date of this Agreement pursuant to
the provisions of subsection 11(b)(iii) hereof, Executive shall forfeit the
Retention Award under Section 7 hereof and other long term incentives granted
pursuant to the provisions of Section 6 hereof.
(c) In the event (i) DEFS Assets terminates the employment of
Executive prior to the expiration of the term specified in Section 3 hereof
pursuant to the provisions of subsection 11(b)(iv) hereof or (ii) Executive
terminates his employment prior to the expiration of the term specified in
Section 3 hereof pursuant to the provisions of subsection 11(a)(ii) hereof, the
Retention Award under Section 7 and other long term incentives granted
Executive pursuant to the provisions of Section 6 hereof shall immediately vest
and Executive shall be paid a pro-rata bonus earned during the year of
termination of his employment.
(d) In the event (i) Executive terminates his employment
pursuant to subsection 11(a)(i) hereof after the expiration of 12 or more
months after the effective date of this Agreement but prior to the expiration
of the term specified in Section 3 hereof, or (ii) DEFS Assets terminates the
employment of Executive pursuant to the provisions of subsection 11(b)(iii)
hereof, Executive shall forfeit any long term incentive awards issued pursuant
to the provisions of Section 6 hereof and one-half of the Retention Award under
Section 7 hereof.
13. Change In Control.
(a) In the event of a Change in Control of DEFS Corporation
prior to the expiration of the term of this Agreement pursuant to Section 3
hereof, should Executive's employment be terminated (a) pursuant to subsection
11(b)(iv) hereof, or (b) by Executive pursuant to subsection 11(a)(ii) hereof,
all long term incentive awards and any unvested restricted stock awards issued
pursuant to the provisions of Section 6 and 7 hereof shall immediately vest. In
addition, Executive shall be entitled to a lump sum severance payment equal to
two hundred percent (200%) of his base annual salary in effect at the
7
<PAGE> 8
time of termination plus his target bonus. Finally, for a period of up to two
years following such termination of employment, the Executive shall be eligible
to participate in the group medical plan sponsored by DEFS Assets for its
employees, or its equivalent on the same basis as active employees of DEFS
Assets unless the Executive becomes eligible to participate in the group
medical plan offered by a subsequent employer.
(b) For the purposes of this Section 13, a "change in
control" is defined as:
(i) the consummation of a merger or consolidation of
DEFS Corporation with one or more corporations, business trusts, common law
trusts or unincorporated businesses, including, without limitation, a general
partnership or limited partnership, pursuant to a written agreement of merger
or consolidation in which DEFS Corporation is not the surviving entity or in
which DEFS Corporation survives only as a subsidiary of another entity; or
(ii) any person other than Duke Energy or Phillips
is or becomes the beneficial owner, directly or indirectly, of securities of
DEFS Corporation representing more than 50% of the combined voting power of
DEFS Corporation's then outstanding voting securities; or
(iii) all or substantially all of the assets and
business of DEFS Corporation are sold, transferred or assigned to, or otherwise
acquired by, any other person or persons other than Duke Energy or Phillips; or
(iv) the dissolution or liquidation of DEFS
Corporation; or
(v) adoption by the Board of Directors of DEFS
Corporation of a resolution to the effect that any person other than Duke
Energy or Phillips has acquired effective control of the business and affairs
of DEFS Corporation.
(c) The term "beneficial owner" shall have the meaning set
forth in Section 13(d) of the Securities Exchange Act of 1934, as amended and
in the regulations promulgated thereunder. The term "person" shall mean an
individual, corporation, partnership, trust, unincorporated organization,
association or other entity; provided that the term "person" shall not include
(i) Duke Energy, (ii) Phillips, (iii) any affiliate of Duke, or (iv) any
affiliate of Phillips, or (v) any employee benefit plan maintained by Duke or
any affiliate of Duke, or (vi) any employee benefit plan maintained by Phillips
or any affiliate of
8
<PAGE> 9
Phillips. The term "affiliate" or "affiliated" as used in this Agreement shall
mean when used with respect to a specified person or entity, any other person
or entity directly or indirectly controlled by, controlling, or under direct or
indirect common control with the specified person or entity. For the purpose of
this Section 13, "control" or "controlled" when used with respect to any
specified person or entity means the power to direct the management and
policies of that person or entity whether through the ownership of voting
securities, membership interest or by contract.
(d) Notwithstanding the provisions of this Section 13, a "change in
control" shall not include a change in the ownership interest of Duke Energy or
Phillips, nor shall it include a change in the percentage of ownership interest
of DEFS Corporation by either Duke Energy or Phillips.
14. Notice. Any notice to be given hereunder by either party to the
other party may be effectuated either by personal delivery in writing or by
mail, registered or certified, postage prepaid, with return receipt requested.
Mailed notices shall be addressed to the parties at the following addresses:
If to DEFS, L.L.C.:
J. W. Mogg
Chairman of the Board
Duke Energy Field Services, Inc.
370 17th Street, Suite 900
Denver, CO 80202
If to Executive:
Mr. Michael J. Panatier
Vice Chairman
Duke Energy Field Services, Inc.
(address)
Houston, Texas (zip)
9
<PAGE> 10
15. Waiver of Breach. The waiver by any party to a breach of any
provision in this Agreement cannot operate or be construed as a waiver of any
subsequent breach by a party.
16. Severability. The invalidity or unenforceability of any particular
provision in this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision were omitted.
17. Entire Agreement. Except as otherwise provided herein, this
Agreement contains the entire understanding of the parties as to the employment
of Executive, superseding all prior understandings and agreements, and no
modifications or amendments of the terms and conditions herein shall be
effective unless in writing and signed by the parties or their respective duly
authorized agents.
18. Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Colorado, without reference to
conflicts of law principles thereof.
19. Dispute Resolution. In the event any dispute arises concerning the
provisions of this Agreement or Executive's employment with DEFS, L.L.C., the
parties agree that such dispute shall be resolved in accordance with the
Employment Dispute Resolution procedures of the American Arbitration
Association and that any arbitration pursuant to such procedures shall be held
in Denver, Colorado.
20. Consent to Jurisdiction. Employee hereby consents to the
nonexclusive jurisdiction of any state court within Denver, Colorado or any
federal court located within the same city for any proceeding instituted
hereunder or arising out of or in connection with this Agreement.
10
<PAGE> 11
21. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their permitted successors,
assigns, legal representatives and heirs, but neither this Agreement nor any
rights hereunder shall be assignable by Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DUKE ENERGY FIELD SERVICES, INC.
By: /s/ J. W. Mogg
------------------------------
J. W. Mogg
EXECUTIVE
By: /s/ Michael J. Panatier
------------------------------
Michael J. Panatier
11
<PAGE> 1
EXHIBIT 10.5
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT (this "Agreement"), dated and
effective as of the 31st day of March, 2000 ("Effective Date"), by and between
DUKE ENERGY CORPORATION, a North Carolina corporation ("Duke Energy"), and DUKE
ENERGY FIELD SERVICES, LLC, a Delaware limited liability company ("Licensee").
WHEREAS, substantially contemporaneously herewith, DEFS Holding Corp.,
a Delaware corporation and a wholly-owned subsidiary of Duke ("DEFS Holding"),
and Phillips Gas Company, a Delaware corporation and a wholly-owned subsidiary
of Phillips Petroleum Company, a Delaware corporation ("PGC"), have entered
into an Amended and Restated Limited Liability Company Agreement of Duke Energy
Field Services, LLC pursuant to which DEFS Holding and PGC have transferred to
Licensee certain of their midstream natural gas gathering, processing and
marketing operations and assets (the "Pooled Assets"); and
WHEREAS, Licensee desires to obtain a license from Duke Energy to
utilize the Licensed Marks (hereinafter defined) for a limited period of time
solely for the purpose of operating the Pooled Assets; and
WHEREAS, Duke Energy is willing to grant such license on the terms and
conditions more fully set forth below;
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. The term "Licensed Marks" shall mean (a) the name and mark "Duke
Energy" and the stylized "D" logotype in connection with that name and mark,
(b) the name and mark "PanEnergy", and (c) the name and mark "Texas Eastern"
(collectively, the "Licensed Marks").
2. The term "Licensed Goods and Services" shall mean those goods and
services which were being sold, distributed or provided as part of the
businesses comprising the Pooled Assets as of the Effective Date.
3. The term "Licensed Territory" shall mean the continental United
States and Canada.
4. Duke Energy hereby grants to Licensee a nonexclusive, royalty-free
license to use, in the Licensed Territory in connection with the advertising,
sale, rendering and distribution of the Licensed Goods and Services for the
term of this Agreement, when used in the specific manner authorized herein, (a)
the name and mark "Duke Energy" as part of the names "Duke Energy Field
Services" and "Duke Energy Field Services, LLC" and the other subsidiary names
listed in Section A of SCHEDULE 1 attached to and incorporated by reference
into this Agreement and the stylized "D"
<PAGE> 2
logotype in connection with those names, and (b) the names and marks
"PanEnergy" and "Texas Eastern" as part of the subsidiary names listed in
Sections B and C of SCHEDULE 1. Licensee shall not have the right to register,
as trademarks, service marks or trade names, the Licensed Marks in the Licensed
Territory or elsewhere or to sublicense the Licensed Marks. Except as expressly
granted in this Agreement, Licensee shall have no license of, right to use or
interest in the Licensed Marks or any other trademark, service mark, trade name
or logo owned, licensed or used by Duke Energy, including any related
applications or registrations (collectively, the "Duke Energy Marks").
5. Licensee may use the Licensed Marks only in connection with its
advertising, sale, rendering and distribution of the Licensed Goods and
Services in the Licensed Territory, inclusive of such modifications and
improvements to the Licensed Goods and Services as do not comprise materially
different goods and services. The specific manner of use of the Licensed Marks
always shall be subject to the prior written approval of Duke Energy. Licensor
shall retain the right, from time to time, and in its sole discretion, to
modify, amend, alter or discontinue any of the Licensed Marks. When Licensor
gives Licensee written notice, Licensee shall promptly, but in no event later
than 180 days after the notice, conform or discontinue, as applicable, its use
of the Licensed Marks as so modified, altered, amended or discontinued and the
definition of Licensed Marks shall be deemed to be automatically amended into
conformity with those changes in the Licensed Marks. Licensee shall disclose to
the public, on its packaging, advertising and literature for the Licensed Goods
and Services that the Licensed Marks are owned by Duke Energy and are licensed
for use by Licensee. Licensee shall not otherwise make any reference to Duke
Energy in Licensee's advertising, promotion, sale or rendering of the Licensed
Goods or Services without the prior written approval of Duke Energy. Licensee
also shall use on its packaging, labels and in its advertising and literature
for the Licensed Goods and Services its own name and address, identifying
Licensee as the manufacturer, distributor and/or provider of the Licensed Goods
or Services. Licensee may not use in connection with the Licensed Goods or
Services, or on packaging, advertising materials or literature for the Licensed
Goods or Services, any other name or mark (except for Licensee's name and the
Licensed Marks) without Duke Energy's prior written approval.
6. Licensee acknowledges that title and ownership in the Licensed
Marks and the Duke Energy Marks and the associated goodwill are and shall at
all times remain in Licensor and that, by this Agreement or otherwise, Licensee
shall not acquire any title, ownership, or other interest in the Licensed Marks
or the Duke Energy Marks. All uses of the Licensed Marks by Licensee and all
goodwill generated by those uses shall inure exclusively and completely to the
benefit of Licensor. Licensee acknowledges the validity and enforceability of
the Licensor's rights and title in the Licensed marks and the Duke Energy Marks
and shall not contest or challenge the validity of, or Licensor's title in, the
Licensed Marks or the Duke Energy Marks.
7. Licensee represents, warrants and covenants that the Licensed Goods
and Services shall not be manufactured, packaged, distributed, sold or rendered
in such a way as to constitute or be likely to constitute a health or safety
hazard to consumers or others. Licensee covenants and agrees that the Licensed
Goods and Services and Licensee's use of the Licensed Marks shall comply
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<PAGE> 3
fully with all applicable state, federal, national and local laws and
regulations, including those governing the manufacturing, packaging,
distribution, sale or rendering of the Licensed Goods and Services, and that
the Licensed Goods and Services shall be at least of good and merchantable
quality.
8. Licensee agrees, at its expense, to submit to Duke Energy, promptly
upon Duke Energy's request, samples of the Licensed Goods, as well as
specimens, labels, advertising, promotional materials and other literature
showing actual use of the Licensed Marks in connection with the Licensed Goods
and Services. If at any time Duke Energy advises Licensee of changes which must
be made in the manner of Licensee's use of the Licensed Marks, Licensee agrees
promptly to make such changes requested by Duke Energy or, in the alternative,
voluntarily to terminate this Agreement.
9. Licensee agrees that Duke Energy, or persons authorized by Duke
Energy, may enter and inspect, during all reasonable hours, Licensee's business
premises where the Licensed Goods and Services are manufactured, assembled,
stopped, distributed or rendered, such inspection being for the sole purpose of
Duke Energy maintaining control of the nature and quality of the Licensed Goods
and Services in connection with which the Licensed Marks are being used.
10. Any cause of action for infringement or unfair competition arising
from or in connection with the use by others of marks consisting of or
confusingly similar to the Licensed Marks may be prosecuted at the sole option
of Duke Energy and at Duke Energy's expense; however, Duke Energy shall not be
obligated to bring or to prosecute any cause of action. In the event of such
action, Licensee agrees to render all reasonable assistance to Duke Energy for
the institution and prosecution of such action.
11. Licensee agrees to indemnify, defend and hold Duke Energy and its
directors, officers, employees, and subsidiaries (collectively, "Indemnified
Persons") harmless from any and all claims, liabilities, demands, actions,
causes of action, suits, loss or damage (including their reasonable attorneys'
fees and costs of court) arising out of any property damage, injury or death of
any person resulting, or alleged to have resulted, from the design,
manufacture, use, sale or marketing of the Licensed Goods and Services,
REGARDLESS OF WHETHER ANY INDEMNIFIED PERSON AND/OR OTHERS MAY BE WHOLLY,
PARTIALLY OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT AND REGARDLESS OF WHETHER
SUCH CLAIM OR LIABILITY MAY BE BASED UPON NEGLIGENCE OR STRICT LIABILITY.
12. Licensee agrees to indemnify, defend and hold all Indemnified
Persons Duke Energy harmless from any and all claims, liabilities, demands,
actions, causes of action, suits, loss or damage (including their reasonable
attorneys' fees and costs of court) based in whole or in part on any claim (a)
that the Licensed Goods and Services or the advertising, promotional, packaging
or other materials of Licensee infringe the U.S. or foreign patent, trademark,
service mark, trade name or copyright rights of any person, party, or entity,
(b) that the Licensed Goods and Services
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<PAGE> 4
incorporate or misappropriate the confidential business information or trade
secrets of any person, party or entity, or (c) that the packaging, advertising,
promotional or other printed materials produced or distributed in connection
with the Licensed Goods and Services infringe the copyright of any person, party
or entity, REGARDLESS OF WHETHER ANY INDEMNIFIED PERSON AND/OR OTHERS MAY BE
WHOLLY, PARTIALLY, OR SOLELY NEGLIGENT OR OTHERWISE AT FAULT AND REGARDLESS OF
WHETHER SUCH CLAIM OR LIABILITY MAY BE BASED UPON NEGLIGENCE OR STRICT
LIABILITY.
13. Licensee agrees that it shall maintain in force a commercial
general liability insurance policy including vendor's coverage and product
liability coverage for the Licensed Goods and Services in the form and with an
insurance carrier acceptable to Duke Energy, with minimum limits of liability
of $1,000,000 per occurrence. Such policy shall include an endorsement
expressly naming Duke Energy as an additional insured with subrogation waived
in its favor and stating that Duke Energy shall receive thirty (30) days prior
notice of cancellation, material change in coverage or intent not to renew.
Licensee shall, within thirty (30) days after the singing of this Agreement,
deliver to Duke Energy a copy of such insurance policy and endorsements
certified within the last thirty (30) days by the insurance carrier. Licensee
shall deliver to Duke Energy certified copies of all changes to the policy
within 60 days after the applicable change and additional certificates of
insurance annually on the anniversary date of this Agreement.
14. This Agreement may be assigned by Licensee to any successor in
interest to all, or substantially all, of Licensee's business and assets
related to the Licensed Goods and Services including, without limitation, to
any publicly owned corporation which may acquire all or substantially all of
Licensee's assets related to the Licensed Goods and Services, in which event
such successor or assignee shall assume all of the rights and obligations of
"Licensee" hereunder. This Agreement, and the license herein granted may not
otherwise be assigned by Licensee without Duke Energy's prior written approval.
Duke Energy shall have the right to assign, transfer, sub-contract or otherwise
delegate the performance of some or all of its rights or responsibilities under
this Agreement.
15. This Agreement shall have a term from the Effective Date until
terminated as provided herein below:
(1) Licensee may terminate the Agreement at any time, with or without
cause, upon thirty (30) day's advance written notice to Duke Energy;
(2) Duke Energy may terminate the Agreement, on thirty (30) day's
advance written notice, if Duke Energy and Licensee are unable to resolve any
dispute or difference with regard to the manner of use by Licensee of the
Licensed Marks or the nature or quality of the goods or services in connection
with which the Licensed Marks are being used;
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<PAGE> 5
(3) In the event Licensee shall breach any of its obligations under
this Agreement, Duke Energy may give written notice of such breach. If Licensee
shall not have cured such breach within thirty (30) days following such written
notice, Duke Energy may send an additional written notice terminating the
Agreement on not less than thirty (30) day's additional notice;
(4) In the event Duke Energy's ownership interest, both direct and
indirect, in Licensee shall, at any time, be less than or equal to thirty five
percent (35%) or in the event Duke Energy no longer controls, directly or
indirectly, the management and policies of the Licensee, Duke Energy may
terminate this Agreement on not less than thirty (30) day's advance written
notice to Licensee; or
(5) Licensee is convicted of or pleads guilty or no contest to a
felony or other crime which Duke Energy believes may adversely affect the
reputation or goodwill of the Licensed Marks or Duke Energy.
16. The obligations of paragraphs 10, 11 and 16 of this Agreement
shall survive termination hereof, regardless of the reason for such
termination.
17. Following termination of this Agreement, regardless of the reason
for termination, Licensee agrees (a) to promptly discontinue all use of the
Licensed Marks and (b) to promptly amend its trade names, limited liability
company agreement, certificates of incorporation or other organizational
documents to remove the Duke Energy name therefrom. Thereafter, Licensee shall
not utilize in any way, any name, mark, phrase or logo incorporating "Duke" or
"Duke Energy" or any of the Licensed Marks, or any name or mark confusingly
similar thereto, including using any of the foregoing as a business name or as
a trademark or service mark in connection with the sale of any goods or
services; PROVIDED, however, that Licensee may continue to use any signage,
printed literature, sales materials, purchase orders and the like and sell any
products that are included in its inventory as of the date of termination which
materials or products utilize the Licensed Marks until the supplies thereof
existing on the date of termination have been exhausted, but in any event not
longer than one hundred eighty (180) days following such termination.
18. All notices and other communications to be given to any party
hereunder shall be sufficiently given for all purposes hereunder if in writing
and delivered by hand, courier or overnight delivery service or three days
after being mailed by certified or registered mail, return receipt requested,
with appropriate postage prepaid, or when received in the form of a telegram or
facsimile and shall be directed to the address or facsimile number set forth
below (or at such other address or facsimile number as such party shall
designate by like notice):
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<PAGE> 6
To Duke Energy: Duke Energy Corporation
5400 Westheimer Court, 8th Floor
Houston, Texas 77056-5310
Attention: Richard K. McGee
Fax No.: (713) 627-5510
To Licensee: Duke Energy Field Services, LLC
370 17th Street, Suite 900
Denver, Colorado 80202
Attention: Martha B. Wyrsch
Fax No.. (303) 605-8902
19. This Agreement is entered into and shall be governed for all
purposes by the laws of the State of Texas.
20. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
hereto and delivered (including by facsimile) to the other party.
21. This Agreement may not be modified or amended except by an
instrument or instruments in writing signed by all parties hereto. Either party
hereto may, only by an instrument in writing, waive compliance by the other
parties hereto with any term or provision of this Agreement on the part of such
other party hereto to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision of this Agreement shall not be
construed as a waiver of any subsequent breach. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising or single or
partial exercise of any right, power or remedy by any party, and no course of
dealing between the parties, shall constitute a waiver of any such right, power
or remedy.
22. The parties hereto agree that irreparable damage would occur in
the event that any party fails to consummate the transactions contemplated by
this Agreement in accordance with the terms of this Agreement and that tho
parties shall be entitled to specific performance in such event, in addition to
any other remedy or law or in equity.
23. Nothing in this Agreement shall be deemed to create a franchise,
joint venture, or partnership between Licensor and Licensee.
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<PAGE> 7
IN WITNESS WHEREOF, each of the undersigned, intending to be legally
bound, has caused this Agreement to be duly executed and delivered on the date
first set forth above.
DUKE ENERGY CORPORATION
By: /s/ Fred J. Fowler
-------------------------------------------------
Name: Fred J. Fowler
Title: Group President - Energy Transmission
DUKE ENERGY FIELD SERVICES, LLC
By: /s/ J.W. Mogg
-------------------------------------------------
Name: J.W. Mogg
Title: Chairman, President & Chief Executive Officer
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<PAGE> 8
SCHEDULE 1
SUBSIDIARIES OF DUKE ENERGY FIELD SERVICES, LLC
A. Brigham-Duke (Delaware) LLC
Duke Energy Business Services 110 LLC
Duke Energy Canada Pipeline Ltd.
Duke Energy Comite, LLC
Duke Energy Field Services Assets, LLC
Duke Energy Field Services Canada Holdings, Inc.
Duke Energy Field Services LP Acquisition, LLC
Duke Energy Field Services Marketing, LLC
Duke Energy Field Services Southwest, LLC
Duke Energy Financial Services, LLC
Duke Energy Fuels Operating LLC
Duke Energy Gathering and Processing, L.P.
Duke Energy Hinshaw Pipeline, LLC
Duke Energy Intrastate Network, LLC
Duke Energy Intrastate Pipeline, LLC
Duke Energy Midstream Services Canada Ltd.
Duke Energy NGL Services, LLC
Duke Energy Ozona Condensate, LLC
Duke Energy Southwest Ozona Plant, LLC
Duke Energy Stratton Liquid Pipeline, LLC
Duke Energy Texas Intrastate Pipeline, LLC
B. PanEnergy Dauphin Island, LLC
PanEnergy Louisiana Intrastate, LLC
PanEnergy Mobile Bay Processing, LLC
C. Texas Eastern Products Pipeline Company, LLC
<PAGE> 1
Exhibit 10.6
SHAREHOLDERS AGREEMENT
by and among
DUKE ENERGY NATURAL GAS CORPORATION
and
PHILLIPS PETROLEUM COMPANY
Dated as of _________ __, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions....................................................................................1
Section 1.2 Construction...................................................................................4
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Composition of the Corporation Board...........................................................5
Section 2.2 Removal and Replacement of Directors...........................................................5
ARTICLE III
OTHER AGREEMENTS
Section 3.1 Special Buy-out Right..........................................................................6
ARTICLE IV
LIQUIDITY AND TRANSFER RESTRICTIONS
Section 4.1 Right of First Offer...........................................................................7
Section 4.2 Change of Control..............................................................................8
Section 4.3 Open Market Purchases and Transfers...........................................................10
Section 4.4 Affiliate Transfers...........................................................................10
Section 4.5 Void Transfers................................................................................10
ARTICLE V
TERMINATION
Section 5.1 Termination...................................................................................10
ARTICLE VI
MISCELLANEOUS
Section 6.1 Counterparts..................................................................................10
Section 6.2 Governing Law; Jurisdiction and Forum; Waiver of Jury Trial...................................11
Section 6.3 Entire Agreement..............................................................................11
Section 6.4 Expenses......................................................................................11
Section 6.5 Notices.......................................................................................11
Section 6.6 Successors and Assigns........................................................................13
Section 6.7 Headings; Definitions.........................................................................13
Section 6.8 Amendments and Waivers........................................................................13
Section 6.9 Severability..................................................................................13
Section 6.10 Interpretation................................................................................13
Section 6.11 Specific Performance..........................................................................14
</TABLE>
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<PAGE> 3
SHAREHOLDERS AGREEMENT, dated as of ____________, 2000 (this
"Agreement"), by and among DUKE ENERGY NATURAL GAS CORPORATION, a Delaware
corporation ("DENG"), and PHILLIPS PETROLEUM COMPANY, a Delaware corporation
("PGCSI Parent" or "Phillips").
RECITALS
1. DENG, an indirect wholly owned subsidiary of Duke Energy
Corporation, a North Carolina corporation ("Duke"), and PGCSI Parent are
currently Shareholders (as defined below) of Duke Energy Field Services
Corporation (the "Corporation").
2. The Shareholders desire to set forth herein the terms and conditions
concerning their ownership of and cooperation concerning the Corporation.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the Shareholders agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
shall have the respective meanings set forth below:
"Affiliate" shall mean, with respect to any Person, a Person directly
or indirectly Controlling, Controlled by or under common Control with such
Person.
"Agreement" shall have the meaning set forth in the Preamble.
"Appraiser Committee" shall have the meaning set forth in Section
3.1(b).
"Business Day" shall mean any day on which banks are generally open to
conduct business in the State of New York.
"Buy-Out Notice" shall have the meaning set forth in Section 3.1(a).
"Buy-Out Right" shall have the meaning set forth in Section 3.1(a).
"Change of Control" shall mean an event (such as a Transfer of voting
securities) that causes a Person that holds a Corporation Interest to cease to
be Controlled by such Person's Parent; provided, however, that an event that
causes Duke or Phillips to be Controlled by another Person shall not constitute
a Change of Control, and a Transfer by either a Duke Shareholder or a Phillips
Shareholder of its Corporation Interest shall not constitute a Change of Control
(it being the intent of the parties that such Transfers shall be governed by and
subject to the right of first offer provisions set forth in Section 4.1 hereof).
<PAGE> 4
"Changing Party" shall have the meaning set forth in Section 4.2(b).
"Changing Party Appraiser" shall have the meaning set forth in Section
4.2(c).
"Contribution Agreement" shall mean the Contribution Agreement by and
among Phillips, Duke and Duke Energy Field Services L.L.C., dated as of December
16, 1999.
"Control" shall mean the possession, directly or indirectly, through
one or more intermediaries, by any Person or group (within the meaning of
Section 13(d)(3) under the Securities Exchange Act of 1934, as amended) of both
of the following:
(a) (i) in the case of a corporation, more than 25% of the direct or
indirect economic interests in the outstanding equity securities thereof; (ii)
in the case of a limited liability company, partnership, limited partnership or
venture, the right to more than 25% of the distributions therefrom (including
liquidating distributions); (iii) in the case of a trust or estate, including a
business trust, more than 25% of the beneficial interest therein; and (iv) in
the case of any other entity, more than 25% of the economic or beneficial
interest therein; and
(b) in the case of any entity, the power or authority, through
ownership of voting securities, by contract or otherwise, to control or direct
the management and policies of the entity.
"Control Acceptance" shall have the meaning set forth in Section
4.2(b).
"Control Appraiser Committee" shall have the meaning set forth in
Section 4.2(c).
"Control Notice" shall have the meaning set forth in Section 4.2(b).
"Control Offer Period" shall have the meaning set forth in Section
4.2(b).
"Corporation" shall have the meaning set forth in the Preamble.
"Corporation Board" shall have the meaning set forth in Section 2.1.
"Corporation Common Stock" shall mean the common stock, par value $0.01
per share, of the Corporation.
"Corporation Interest" shall mean, with respect to any Person, such
Person's percentage ownership (direct and indirect), exclusive of any Market
Shares owned (directly or indirectly) by such Person, of the outstanding
Corporation Common Stock at the time of measurement.
"DENG" shall have the meaning set forth in the Preamble.
"Director" shall mean one or more of the members of the Corporation
Board, as the context may require.
"Duke" shall have the meaning set forth in the Recitals.
"Duke Appraiser" shall have the meaning set forth in Section 3.1(a).
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<PAGE> 5
"Duke Directors" shall have the meaning set forth in Section 2.1.
"Duke Shareholder" shall mean the holder of any Corporation Common
Stock (other than Market Shares) that is Duke or a Subsidiary of Duke or, if at
any time there is more than one such holder, each of such holders.
"Fair Market Value" shall mean, with respect to any Person's
Corporation Interest, a purchase price equal to the value that would be obtained
for such Corporation Interest in an arm's-length transaction between an informed
and willing buyer under no compulsion to buy and an informed and willing seller
under no compulsion to sell such Corporation Interest.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"Governmental Entity" shall mean any federal, state, political
subdivision or other governmental agency or instrumentality, foreign or
domestic.
"Independent Directors" shall mean directors meeting the independence
and experience requirements, as set forth by the New York Stock Exchange as of
the date of the IPO for membership on an audit committee of a board of
directors, with respect to each of PGCSI Parent, DENG, Duke and the Corporation.
"IPO" shall mean the initial offering of shares of Corporation Common
Stock to the public in a transaction registered under the Securities Act.
"Market Shares" shall mean shares purchased by a Person through
open-market purchases, other than those shares purchased to prevent dilution in
accordance with Article X of the Certificate of Incorporation of the
Corporation.
"Neutral Appraiser" shall have the meaning set forth in Section 3.1(b).
"Neutral Control Appraiser" shall have the meaning set forth in Section
4.2(c).
"Non-Changing Party" shall have the meaning set forth in Section
4.2(b).
"Non-Changing Party Appraiser" shall have the meaning set forth in
Section 4.2(b).
"Non-Transferring Entity" shall have the meaning set forth in Section
4.1.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Parent" shall mean, with respect to a particular Person, the Person
that Controls such particular Person and that is not itself Controlled by any
other Person.
"Party" shall mean each of DENG and PGCSI Parent and any Affiliates of
Duke or Phillips, respectively, who become party hereto in accordance with
Section 4.4.
"Person" shall mean any individual, partnership, limited liability
company, firm, corporation, association, joint venture, trust or other entity or
any Governmental Entity.
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<PAGE> 6
"PGCSI Parent" shall have the meaning set forth in the Preamble.
"Phillips" shall have the meaning set forth in the Preamble.
"Phillips Appraiser" shall have the meaning set forth in Section
3.1(b).
"Phillips Directors" shall have the meaning set forth in Section 2.1.
"Phillips Shareholder" shall mean the holder of any Corporation Common
Stock (other than Market Shares) that is Phillips or a Subsidiary of Phillips
or, if at any time there is more than one such holder, each of such holders.
"Phillips Veto" shall mean the failure of the requisite number of
directors of the Corporation Board to vote in favor of any of the actions
described in Exhibit B hereto where none of the Phillips Directors voted in
favor of such action; provided, however, that if any of the Duke Directors
failed to vote in favor of such action, such failure of the requisite number of
directors of the Corporation Board to vote in favor of such action shall not
constitute a Phillips Veto.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shareholder" shall have the meaning set forth in Section 4.1.
"Subsidiary" shall mean, when used with respect to any Person, any
Affiliate of such Person that is Controlled by such Person.
"Total Corporation Interest" shall mean, with respect to any Person,
the sum of (i) such Person's Corporation Interest and (ii) any Market Shares
owned (directly or indirectly) by such Person (expressed as a percentage of the
outstanding Corporation Common Stock at the time of measurement).
"Transfer" shall mean any sale, assignment or other transfer, whether
by operation of law or otherwise (but not any deemed transfer pursuant to
Section 338 of the United States Internal Revenue Code of 1986, as amended, of
the assets of a corporation or its Subsidiary in connection with the purchase of
the stock of such corporation).
"Transfer Notice" shall have the meaning set forth in Section 4.1.
"Transferring Entity" shall have the meaning set forth in Section 4.1.
Section 1.2 Construction. Unless the context requires otherwise: (a)
the gender (or lack of gender) of all words used in this Agreement includes the
masculine, feminine and neuter; (b) references to Articles and Sections refer to
Articles and Sections of this Agreement; (c) references to Exhibits refer to the
Exhibits attached to this Agreement; (d) references to laws refer to such laws
as they may be amended from time to time, and references to particular
provisions of a law include any corresponding provisions of any succeeding law;
(e) references to money refer to legal currency of the United States of America;
(f) the word "including" means "including, without limitation"; and (g) all
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms.
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<PAGE> 7
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Composition of the Corporation Board. Each Duke Shareholder
(including DENG so long as it is a Duke Shareholder) shall, and shall cause its
Affiliates to, make nominations and vote Duke's Total Corporation Interest, and
each Phillips Shareholder (including PGCSI Parent so long as it is a Phillips
Shareholder) shall, and shall cause its Affiliates to, make nominations and vote
Phillips' Total Corporation Interest, so that (a) the Corporation shall be
managed by a board of directors (the "Corporation Board") that shall be
comprised of 11 Persons, including: (i) so long as Duke's Corporation Interest
equals or exceeds 30%, (A) seven individuals designated by DENG (the "Duke
Directors"), including at least two Independent Directors, and (B) so long as
Phillips' Corporation Interest equals or exceeds 20%, four individuals
designated by PGCSI Parent (the "Phillips Directors"), including at least one
Independent Director and (ii) if Duke's Corporation Interest equals or exceeds
20% but is less than 30%, (A) the number of Duke Directors shall equal the
product, rounded to the nearest whole number, of (1) 11 and (2) the quotient of
(x) Duke's Corporation Interest divided by (y) the sum of (I) Duke's Corporation
Interest and (II) Phillips' Corporation Interest; (B) the number of Phillips
Directors shall equal the difference between (1) 11 and (2) the number of Duke
Directors, (C) if there are more Duke Directors than Phillips Directors, then at
least two of the Duke Directors and at least one of the Phillips Directors must
be Independent Directors and (D) if there are more Phillips Directors than Duke
Directors, then at least two of the Phillips Directors and at least one of the
Duke Directors must be Independent Directors, and (b) the Chairman of the
Corporation Board shall be one of the Directors designated by whichever of the
Parties has the right at such time to designate more Directors. Each Director
will serve as a Director until his or her successor is duly elected and
qualified or until his or her earlier resignation or removal.
Section 2.2 Removal and Replacement of Directors. Each Duke Shareholder
(including DENG so long as it is a Duke Shareholder) shall, and shall cause its
Affiliates to, vote Duke's Total Corporation Interest, and PGCSI Parent and each
Phillips Shareholder (including PGCSI Parent so long as it is a Phillips
Shareholder) shall, and shall cause its Affiliates to, vote Phillips' Total
Corporation Interest, to remove (a) any or all of the Duke Directors at the
request of DENG at any time and for any reason (or for no reason) and (b) any or
all of the Phillips Directors at the request of PGCSI Parent at any time and for
any reason (or for no reason). Should any Director be unwilling or unable to
continue to serve, or otherwise cease to serve (including by reason of his or
her involuntary removal or at the expiration of any applicable term of office),
then (i) each Duke Shareholder (including DENG so long as it is a Duke
Shareholder) shall, and shall cause its Affiliates to, (A) make nominations and
vote Duke's Total Corporation Interest to, and (B) cause the Duke Directors to,
and (ii) each Phillips Shareholder (including PGSCI so long as it is a Phillips
Shareholder) shall, and shall cause its Affiliates to, (A) make nominations and
vote Phillips' Total Corporation Interest to, and (B) cause the Phillips
Directors to, vote to fill the resulting vacancy on the Corporation Board by a
Person designated by DENG, in the case of a vacancy of a Duke Director, and by a
Person designated by PGCSI Parent, in the case of a vacancy of a Phillips
Director, but in each case in accordance with the Independent Director
requirements of Section 2.1.
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<PAGE> 8
ARTICLE III
OTHER AGREEMENTS
Section 3.1 Special Buy-out Right. (a) Following the one year
anniversary of the consummation of the IPO, if a Phillips Veto occurs with
regard to different proposals proposed in good faith at three separate meetings
(with at least two months between the first and third meetings) of the
Corporation Board within any 18-month period, DENG shall have the right (the
"Buy-Out Right"), exercisable upon written notice (the "Buy-Out Notice") at any
time after the third such Phillips Veto, but not later than the thirtieth day
after the end of the eighteenth month after the occurrence of the first of the
three Phillips Vetoes that are the basis for the exercise of the Buy-Out Right,
to purchase all (but not less than all) of Phillips' Corporation Interest
pursuant to this Section 3.1. The Buy-Out Notice shall set forth the name of a
nationally recognized appraisal firm (which may be an investment banking,
accounting or other firm that performs appraisal and valuation services)
designated by DENG as its appraisal firm (the "Duke Appraiser").
(b) Within 15 days from the date of receipt of the Buy-Out Notice,
PGCSI Parent shall notify DENG in writing of the name of an appraisal firm
(which may be an investment banking, accounting or other firm that performs
appraisal and valuation services) designated as PGCSI Parent's appraisal firm
(the "Phillips Appraiser"); provided, however, that if Phillips fails to select
an appraisal firm, the Phillips Appraiser shall be Ernst & Young L.L.P.
(provided, further, that if Ernst & Young L.L.P. fails to accept the appointment
within 30 days from the date of PGCSI Parent's receipt of the Buy-Out Notice,
the Appraiser Committee shall consist solely of the Duke Appraiser). If
applicable, the Duke Appraiser and the Phillips Appraiser shall jointly choose a
third appraisal firm (which may be an investment banking, accounting or other
firm that performs appraisal and valuation services) within 15 days after the
appointment of the Phillips Appraiser (provided, however, that if they fail to
select a third appraisal firm within 15 days after the appointment of the
Phillips Appraiser, such third firm (which shall be an investment banking,
accounting or other firm that performs appraisal and valuation services) will be
selected by the American Arbitration Association at the request of either party
within 10 days after such request) (the "Neutral Appraiser," and together with
the Duke Appraiser and the Phillips Appraiser, the "Appraiser Committee"). Once
the Appraiser Committee has been selected, each of DENG and PGCSI Parent shall
submit proposed Fair Market Values of Phillips' Corporation Interest to the
Appraiser Committee, together with any supporting documentation such Party deems
appropriate, as soon as practicable, but in no event earlier than 30 days after
the date of receipt of the Buy-Out Notice nor later than (i) 30 days after the
date of selection of the Neutral Appraiser, or (ii) in the event of the failure
of Ernst & Young L.L.P. to accept the appointment within the required time
period, 60 days from the date of PGCSI Parent's receipt of the Buy-Out Notice.
If either Party fails to submit its proposed Fair Market Value within the
required time period, the Fair Market Value proposed by the other Party
(assuming such other Party has submitted its proposed value within the required
time period) shall be deemed to be the Fair Market Value of Phillips'
Corporation Interest for purposes of this Section 3.1. If both Parties submit
their respective proposed values on a timely basis, the Appraiser Committee
shall determine, by majority vote, the Fair Market Value of Phillips'
Corporation Interest as of the date of the Buy-Out Notice as promptly as
possible (and in any event on or before the 30th day after submittal of the
competing proposals), which determination shall be final and binding on the
Parties. The cost of such appraisal shall be paid in equal portions by each of
DENG and PGCSI Parent. The Company shall provide to each of Duke and Phillips
and, if applicable, the Appraiser Committee, all information reasonably
requested by them.
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<PAGE> 9
(c) The closing of DENG's acquisition of Phillips' Corporation Interest
shall be consummated on or before the 60th day after the determination of the
Fair Market Value in accordance with Section 3.1(b). The acquisition shall be
consummated at a closing held at the principal offices of the Corporation
(unless otherwise mutually agreed by DENG and PGCSI Parent) at which time the
purchase price, payable in the form of immediately available funds, shall be
delivered to PGCSI Parent, and PGCSI Parent shall deliver or cause to be
delivered to DENG (or, at DENG's option, to a designee of DENG designated by
DENG not less than five days prior to the closing) such transfer documentation
reasonably acceptable to DENG (or such designee) as shall be required to
evidence the transfer of Phillips' Corporation Interest, free and clear of all
liens and encumbrances, except those created under this Agreement.
ARTICLE IV
LIQUIDITY AND TRANSFER RESTRICTIONS
Section 4.1 Right of First Offer. If a Duke Shareholder or a Phillips
Shareholder (each, a "Shareholder") desires to Transfer all or any portion of
its Corporation Interest (other than pursuant to a registered public offering)
to a Person other than an Affiliate, then prior to effecting or making such
Transfer, the Person desiring to make such Transfer (a "Transferring Entity")
shall notify in writing the other Party or Parties that are not Affiliates of
the Transferring Entity (whether one or more, the "Non-Transferring Entity") of
the terms and conditions upon which it proposes to effect such Transfer (which
notice shall be herein referred to as a "Transfer Notice" and shall include all
material price and non-price terms and conditions). The Non-Transferring Entity
shall have the right to acquire all (but not less than all) of the Corporation
Interest that is the subject of the Transfer Notice on the same terms and
conditions as are set forth in the Transfer Notice. The Non-Transferring Entity
shall have 30 days following delivery of the Transfer Notice during which to
notify the Transferring Entity whether or not it desires to exercise its right
of first offer. If the Non-Transferring Entity does not respond during the
applicable period set forth above for exercising its purchasing right under this
Section 4.1, such Non-Transferring Entity shall be deemed to have waived such
right. If the Non-Transferring Entity elects to purchase all, but not less than
all, of the Corporation Interest that is the subject of the Transfer Notice, the
closing of such purchase shall occur at the principal place of business of the
Corporation on the tenth day following the first date on which all applicable
conditions precedent have been satisfied or waived (but in no event shall such
closing take place later than the date that is 60 days (subject to extension for
regulatory approvals, but in no event more than 180 days) following the date on
which the Non-Transferring Entity agrees to purchase all of the Corporation
Interest that is the subject of the Transfer Notice). The Transferring Entity
and the purchasing Non-Transferring Entity agree to use commercially reasonable
efforts to cause any applicable conditions precedent to be satisfied as
expeditiously as possible. At the closing, (a) the Transferring Entity shall
execute and deliver to the purchasing Non-Transferring Entity (or, at the option
of the Non-Transferring Entity, to an Affiliate of the Non-Transferring Entity
designated by the Non-Transferring Entity not less than five days prior to the
closing) (i) an assignment of the Corporation Interest described in the Transfer
Notice, in form and substance reasonably acceptable to the purchasing
Non-Transferring Entity (or such Affiliate) and (ii) any other instruments
reasonably requested by the purchasing Non-Transferring Entity to give effect to
the purchase; and (b) the purchasing Non-Transferring Entity shall deliver to
the Transferring Entity the purchase price specified in the Transfer Notice in
immediately available funds or other consideration as specified in the Transfer
Notice. If the Non-Transferring Entity does
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<PAGE> 10
not elect to purchase the Corporation Interest pursuant to this Section 4.1, or
having elected to so purchase such Corporation Interests fails to do so within
the time period required by this Section 4.1, the Transferring Entity shall be
free for a period of 180 days after the expiration of the offer period referred
to above or the date of such failure, as applicable, to enter into a definitive
written agreement with an unaffiliated third party regarding the Transfer of its
Corporation Interest on terms and conditions that satisfy the following
criteria:
(1) the amount of consideration to be paid by the purchasing
party may not be less than the consideration set forth in the Transfer Notice;
(2) the form of consideration may not be materially different
from that set forth in the Transfer Notice, except to the extent any change in
the form of consideration makes the terms of the transaction less favorable from
the purchaser's standpoint; and
(3) the terms and conditions set forth in such definitive written
agreement, when considered together with the form and amount of consideration to
be paid by such purchasing party, may not render the terms of such transaction,
taken as a whole, materially inferior (to the Transferring Entity from an
economic standpoint) to those set forth in the Transfer Notice (it being agreed
that the granting by the Transferring Entity of representations, warranties and
indemnities with respect to the business or properties of the Corporation, as
applicable, or any of its subsidiaries that are different from or in addition to
any such provisions referenced in the Transfer Notice shall not be considered to
be more favorable to the purchaser for purposes of this clause (3)).
If such a definitive written agreement is entered into with an unaffiliated
third party within such time period, the Transferring Entity shall be free for a
period of 270 days following the execution of such definitive written agreement
to consummate the Transfer of its Corporation Interest in accordance with the
terms thereof. If such Transfer is not consummated within such time period in
accordance with the terms of such definitive written agreement, the requirements
of this Section 4.1 shall apply anew to any further efforts by the Transferring
Entity to Transfer its Corporation Interest.
Section 4.2 Change of Control. (a) If (i) a Change of Control occurs
with respect to a Duke Shareholder, PGCSI Parent shall have the option to
purchase such Duke Shareholder's Corporation Interest for Fair Market Value
pursuant to the provisions of Section 4.2(b), (c) and (d), or (ii) a Change of
Control occurs with respect to a Phillips Shareholder, DENG shall have the
option to purchase such Phillips Shareholder's Corporation Interest for Fair
Market Value pursuant to the provisions of Section 4.2(b), (c) and (d).
(b) In the event of a transaction giving rise to a Change of Control
with respect to a Duke Shareholder or a Phillips Shareholder, as applicable, the
Party who has experienced such a Change of Control transaction (the "Changing
Party") shall promptly (and in any event within three days of the consummation
of such transaction) deliver notice (the "Control Notice") to the other Party or
Parties that are not Affiliates of the Changing Party (whether one or more, the
"Non-Changing Party") of such Change of Control transaction. The Non-Changing
Party shall have the right, to be exercised by notice (the "Control Acceptance")
on or before the 60th day following receipt of the Control Notice (the "Control
Offer Period"), to elect to purchase the Corporation Interest of the Changing
Party for Fair Market Value as of the date of the Change of Control. The Control
Acceptance shall set forth the name of a nationally recognized appraisal firm
(which may be an investment banking, accounting or other firm that performs
appraisal and valuation services) designated by the Non-Changing Party as its
appraisal firm (the "Non-Changing Party Appraiser").
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<PAGE> 11
(c) If the Non-Changing Party timely delivers the Control Acceptance
during the Control Offer Period, within 15 days from the date of receipt of the
Control Acceptance, the Changing Party shall notify the Non-Changing Party in
writing of the name of an appraisal firm (which may be an investment banking,
accounting or other firm that performs appraisal and valuation services)
designated as the Changing Party's appraisal firm (the "Changing Party
Appraiser"); provided, however, that if the Changing Party fails to select an
appraisal firm, and the Changing Party is a Duke Shareholder, the Changing Party
Appraiser shall be Deloitte & Touche L.L.P., or, if the Changing Party is a
Phillips Shareholder, the Changing Party Appraiser shall be Ernst & Young
L.L.P.; provided, further, that if Deloitte & Touche L.L.P. or Ernst & Young
L.L.P., as the case may be, fails to accept the appointment within 30 days from
the date of receipt by the Changing Party of the Control Acceptance, the Control
Appraiser Committee shall consist solely of the Non-Changing Party Appraiser.
Except as provided in the second proviso of the immediately preceding sentence,
the Non-Changing Party Appraiser and the Changing Party Appraiser shall jointly
choose a third appraisal firm (which may be an investment banking, accounting or
other firm that performs appraisal and valuation services) within 15 days after
the appointment of the Non-Changing Party Appraiser (provided, however, that if
they fail to select a third appraisal firm within 15 days after the appointment
of the Non-Changing Party Appraiser, such third firm (which shall be an
investment banking, accounting or other firm that performs appraisal and
valuation services) will be selected by the American Arbitration Association at
the request of either Party within 10 days after such request) (the "Neutral
Control Appraiser," and together with the Changing Party Appraiser and the
Non-Changing Party Appraiser, the "Control Appraiser Committee"). Once the
Control Appraiser Committee has been chosen, each of the Changing Party and
Non-Changing Party shall submit proposed Fair Market Values of the Changing
Party's Corporation Interest to the Control Appraiser Committee, together with
any supporting documentation such Party deems appropriate, as soon as
practicable, but in no event earlier than 30 days after the date of receipt of
the Control Acceptance nor later than (i) 30 days after the date of selection of
the Neutral Appraiser or (ii) in the event of the failure of Deloitte & Touche
L.L.P. or Ernst & Young L.L.P., as the case may be, to accept the appointment
within the required time period, 60 days from the date of receipt by the
Non-Changing Party of the Control Notice. If either Party fails to submit its
proposed Fair Market Value within the required time period, the Fair Market
Value proposed by the other Party (assuming such other Party has submitted its
proposed value within the required time period) shall be deemed to be the Fair
Market Value of the Changing Party's Corporation Interest for purposes of this
Section 4.2. If both Parties submit their respective proposed values on a timely
basis, the Control Appraiser Committee shall determine, by majority vote, the
Fair Market Value as of the date of the Change of Control of the Changing
Party's Corporation Interest, as promptly as possible (and in any event on or
before the 30th day after submittal of the competing proposals), which
determination shall be final and binding on the Parties. The cost of such
appraisal shall be paid in equal portions by (A) the Changing Party and (B) the
Non-Changing Party. Each of the Changing Party and the Non-Changing Party shall
provide to the other and, if applicable, the Control Appraisal Committee, all
information reasonably requested by them.
(d) The closing of the Non-Changing Party's acquisition of the Changing
Party's Corporation Interest shall be consummated on or before the 60th day
after the determination of the
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<PAGE> 12
Fair Market Value in accordance with Section 4.2(c). The acquisition shall be
consummated at a closing held at the principal offices of the Corporation
(unless otherwise mutually agreed by the Changing Party and the Non-Changing
Party) at which time the purchase price, payable in the form of immediately
available funds, shall be delivered to the Changing Party, and the Changing
Party shall deliver or cause to be delivered to the Non-Changing Party (or, at
the option of the Non-Changing Party, to (i) an Affiliate of the Non-Changing
Party or (ii) if the interest being transferred represents the entire Duke
Corporation Interest or the entire Phillips Corporation Interest, a designee of
the Non-Changing Party, in each case as designated by the Non-Changing Party not
less than five days prior to the closing) such transfer documentation reasonably
acceptable to the Non-Changing Party (or such Affiliate or designee) as shall be
required to evidence the transfer of the Changing Party's Corporation Interest,
as the case may be, free and clear of all liens and encumbrances, except those
created under this Agreement.
Section 4.3 Open Market Purchases and Transfers. Following the IPO,
subject to applicable federal and state securities laws, each Shareholder and
its Affiliates may make open-market purchases or sales of shares of Corporation
Common Stock.
Section 4.4 Affiliate Transfers. If either a Duke Shareholder or a
Phillips Shareholder desires to Transfer all or any portion of its Corporation
Interest to an Affiliate, such Transfer shall only be permitted hereunder if the
transferee (other than any transferee that is already a party to this Agreement)
becomes a party to this Agreement by executing an adoption agreement in
substantially the form of Exhibit A hereto.
Section 4.5 Void Transfers. Any purported Transfer of all or any
portion of a Corporation Interest not permitted by this Article IV shall be
void. The provisions of this Article IV with respect to Corporation Interests
shall apply equally to any rights or options to purchase, or securities
convertible into or exchangeable for Corporation Interests.
ARTICLE V
TERMINATION
Section 5.1 Termination. (a) This Agreement shall terminate immediately
if at any time either Duke's Total Corporation Interest or Phillips' Total
Corporation Interest is less than 20%.
(b) In the case of termination in accordance with this Section 5.1,
upon such termination, this Agreement shall become void and have no effect;
provided, however, that such termination shall not relieve any Party of any
liability for any breach of this Agreement that occurred prior to such
termination.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the Parties and delivered (including by facsimile) to the other Parties.
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<PAGE> 13
Section 6.2 Governing Law; Jurisdiction and Forum; Waiver of Jury
Trial. (a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without reference to the choice of law
principles thereof.
(b) Each Party irrevocably submits to the jurisdiction of any Delaware
state court or any federal court sitting in the State of Delaware in any action
arising out of or relating to this Agreement, and hereby irrevocably agrees that
all claims in respect of such action may be heard and determined in such
Delaware state or federal court. Each Party hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding. The Parties further agree, to the
extent permitted by law, that final and unappealable judgment against any of
them in any action or proceeding contemplated above shall be conclusive and may
be enforced in any other jurisdiction within or outside the United States by
suit on the judgment, a certified copy of which shall be conclusive evidence of
the fact and amount of such judgment.
(c) To the extent that any Party has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, each
Party hereby irrevocably waives such immunity in respect of its obligations with
respect to this Agreement.
(d) Each Party waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement. Each Party certifies
that it has been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications set forth above in this Section 6.2.
Section 6.3 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter hereof and
there are no agreements, understandings, representations or warranties between
the parties other than those set forth or referred to herein. This Agreement is
not intended to confer upon any person not a Party hereto any rights or remedies
hereunder.
Section 6.4 Expenses. Except as set forth in this Agreement, all legal
and other costs and expenses incurred in connection with this Agreement and the
transactions contemplated by this Agreement shall be paid by the Party incurring
such costs and expenses.
Section 6.5 Notices. All notices and other communications to be given
to any Party hereunder shall be sufficiently given for all purposes hereunder if
in writing and delivered by hand, courier or overnight delivery service or three
days after being mailed by certified or registered mail, return receipt
requested, with appropriate postage prepaid, or when received in the form of a
telegram or facsimile and shall be directed, if to a Party hereunder, to the
address or facsimile number set forth below (or at such other address or
facsimile number as such Party shall designate by like notice):
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<PAGE> 14
(a) If to PGCSI Parent:
Phillips Petroleum Company
1266 Adams Building
Bartlesville, Oklahoma 74004
Attention: Clyde W. Lea
Fax No.: (918) 662-2301
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Andrew R. Brownstein, Esq.
Fax No.: (212) 403-2000
(b) If to DENG:
Duke Energy Natural Gas Corporation
5400 Westheimer Court, 8th Floor
Houston, Texas 77056-5310
Attention: Richard K. McGee
Fax No.: (713) 569-2491
With a copy to:
Duke Energy Field Services Corporation
370 17th Street, Suite 900
Denver, Colorado 80202
Attention: Martha B. Wyrsch
Fax No.: (303) 605-1605
And to:
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2300
Houston, Texas 77002-6760
Attention: Bruce R. Bilger
Fax No.: (713) 615-5429
(c) If to the Corporation:
Duke Energy Field Services Corporation
370 17th Street, Suite 900
Denver, Colorado 80202
Attention: Martha B. Wyrsch
Fax No.: (303) 605-1605
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<PAGE> 15
With a copy to:
Duke Energy Corporation
5400 Westheimer Court, 8th Floor
Houston, Texas 77056-5310
Attention: Richard K. McGee
Fax No.: (713) 569-2491
And to:
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2300
Houston, Texas 77002-6760
Attention: Bruce R. Bilger
Fax No.: (713) 615-5429
Section 6.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors and
permitted assigns; provided, however, that no Party will assign its rights or
delegate any or all of its obligations under this Agreement without the express
prior written consent of each other Party.
Section 6.7 Headings; Definitions. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated. All capitalized terms defined herein are
equally applicable to both the singular and plural forms of such terms.
Section 6.8 Amendments and Waivers. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by all
Parties. Any Party may, only by an instrument in writing, waive compliance by
the other Parties with any term or provision of this Agreement on the part of
such other Parties to be performed or complied with. The waiver by any Party of
a breach of any term or provision of this Agreement shall not be construed as a
waiver of any subsequent breach. Except as otherwise expressly provided herein,
no failure to exercise, delay in exercising or single or partial exercise of any
right, power or remedy by any Party, and no course of dealing between the
Parties, shall constitute a waiver of any such right, power or remedy.
Section 6.9 Severability. If any provision of this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality or enforceability
of the other provisions of this Agreement shall not be affected thereby, and
there shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
Section 6.10 Interpretation. In the event an ambiguity or question of
intent or interpretation arises with respect to this Agreement, this Agreement
shall be construed as if it was drafted jointly by the Parties, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any provisions of this Agreement.
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<PAGE> 16
Section 6.11 Specific Performance. The Parties agree that irreparable
damage would occur in the event that any Party fails to consummate the
transactions contemplated by this Agreement in accordance with the terms of this
Agreement and that the Parties shall be entitled to specific performance in such
event, in addition to any other remedy at law or in equity, including temporary
restraining orders or temporary or permanent injunctions.
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<PAGE> 17
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered on the date first set forth above.
DUKE ENERGY NATURAL GAS CORPORATION
By:
---------------------------------------
Name:
Title:
PHILLIPS PETROLEUM COMPANY
By:
---------------------------------------
Name:
Title:
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<PAGE> 18
EXHIBIT A
ADOPTION AGREEMENT
This Adoption Agreement ("Adoption") is executed pursuant to
the terms of the Shareholders Agreement by and among Duke Energy Natural Gas
Corporation and Phillips Petroleum Company, dated as of _________ , 2000, as
amended to date, a copy of which is attached hereto (the "Shareholders
Agreement"), by the transferee ("Transferee") executing this Adoption. By the
execution of this Adoption, the Transferee agrees as follows:
1. Acknowledgment. Transferee acknowledges that Transferee is acquiring
certain [describe securities acquired], subject to the terms and conditions of
the Shareholders Agreement. Capitalized terms used herein without definition are
defined in the Shareholders Agreement.
2. Agreement. Transferee (a) agrees that [describe securities] acquired
by Transferee shall be bound by and subject to the terms of the Shareholders
Agreement and (b) hereby joins in, and agrees to be bound by, the Shareholders
Agreement with the same force and effect as if it were originally a party
thereto and a Duke Shareholder or a Phillips Shareholder, as applicable,
thereunder.
3. Notice. Any notice required by the Shareholders Agreement shall be
given to Transferee at the address listed beside Transferee's signature below.
EXECUTED AND DATED on this day of , .
-------- ----------------- ----------
TRANSFEREE:
By:
----------------------------------
Notice
Address:
-----------------------------
-----------------------------
Telecopy:
----------------------------
<PAGE> 19
EXHIBIT B
PHILLIPS VETO ACTIONS
1. Entering a new line of business outside of the midstream gas gathering,
processing, marketing and transportation businesses (and directly related
activities) in the United States and Canada.
2. The following transactions:
a) Any merger, consolidation, recapitalization, acquisition, divestiture,
joint venture or alliance (or a related series of such transactions)
involving the acquisition or expenditure (in the form of cash or
otherwise) of in excess of $200,000,000 in value to or from the
Corporation;
b) Entering into any sales contract or commitment that has a term of 5
years or more and that involves annual revenues to the Corporation in
excess of 5% of the Corporation's total annual sales revenues for the
most recently completed fiscal year.
3. Any capital expenditure in excess of $200,000,000 (other than a capital
expenditure to effect any merger, consolidation, recapitalization,
acquisition, divestiture, joint venture or alliance).
4. Any borrowing in excess of $200,000,000.
<PAGE> 1
EXHIBIT 10.10
- --------------------------------------------------------------------------------
PARENT COMPANY AGREEMENT
by and among
PHILLIPS PETROLEUM COMPANY
DUKE ENERGY CORPORATION
DUKE ENERGY FIELD SERVICES, LLC
and
DUKE ENERGY FIELD SERVICES CORPORATION
Dated as of March 31, 2000
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions......................................................1
Section 1.2 Construction.....................................................6
ARTICLE II
THE IPO
Section 2.1 Efforts..........................................................6
Section 2.2 Formation of the Corporation.....................................7
Section 2.3 Post-IPO Ownership...............................................8
Section 2.4 Certificate of Incorporation and Bylaws..........................8
ARTICLE III
EXECUTION OF AGREEMENTS; PRIMARY VEHICLE
Section 3.1 Execution of Agreements..........................................8
Section 3.2 Market Shares....................................................9
Section 3.3 Primary Vehicle..................................................9
ARTICLE IV
TAX MATTERS
Section 4.1 Distributions to PGC.............................................9
Section 4.2 Tax Status......................................................10
Section 4.3 Tax Proceedings; Cooperation and Exchange of Information........10
Section 4.3 Debt Repayment..................................................12
ARTICLE V
TRANSFER RESTRICTIONS
Section 5.1 Structure; Transfers............................................13
Section 5.2 Change of Control...............................................13
ARTICLE VI
TERMINATION OF AGREEMENTS
Section 6.1 Termination of Agreements.......................................13
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE VII
EMPLOYEE MATTERS
Section 7.1 Termination of Agreements.......................................13
Section 7.2 Transfer of Employees...........................................14
Section 7.3 TEPPCO Employees................................................14
Section 7.4 Welfare Benefits................................................14
Section 7.5 Severance Benefits..............................................15
Section 7.6 Miscellaneous...................................................16
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Counterparts....................................................16
Section 8.2 Governing Law; Jurisdiction and Forum; Waiver of Jury Trial.....16
Section 8.3 Entire Agreement................................................17
Section 8.4 Expenses........................................................17
Section 8.5 Notices.........................................................17
Section 8.6 Successors and Assigns..........................................19
Section 8.7 Headings; Definitions...........................................19
Section 8.8 Amendments and Waivers..........................................19
Section 8.9 Severability....................................................19
Section 8.10 Interpretation..................................................19
Section 8.11 Specific Performance............................................19
Section 8.12 Actions by Affiliates of Phillips and Duke......................19
</TABLE>
Exhibits:
Exhibit A Agreement of Merger
Exhibit B Shareholders Agreement
Exhibit C Registration Rights Agreement
<PAGE> 4
PARENT COMPANY AGREEMENT, dated as of March 31, 2000 (this
"Agreement"), by and among PHILLIPS PETROLEUM COMPANY, a Delaware corporation
("Phillips"), DUKE ENERGY CORPORATION, a North Carolina corporation ("Duke"),
DUKE ENERGY FIELD SERVICES, LLC, a Delaware limited liability company (the
"Company") and solely for purposes of Section 4.3(c) of this Agreement, DUKE
ENERGY FIELD SERVICES CORPORATION, a Delaware corporation ("DEFS Holding").
RECITALS:
1. Duke, Phillips and the Company are parties to a Governance Agreement,
dated as of December 16, 1999 (the "Governance Agreement") and a Contribution
Agreement, dated as of December 16, 1999 (the "Contribution Agreement").
2. Phillips Gas Company, a Delaware corporation and an indirect
wholly-owned subsidiary of Phillips ("PGC"), and DEFS Holding, an indirect
wholly-owned subsidiary of Duke, have simultaneously herewith entered into an
Amended and Restated Limited Liability Company Agreement of Duke Energy Field
Services, LLC, dated as of the date hereof (the "LLC Agreement").
3. In connection with the closing of the transactions contemplated by the
Contribution Agreement, Duke, Phillips and the Company desire to terminate the
Governance Agreement and to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms shall have the respective meanings set forth below:
"Affiliate" shall mean, with respect to any Person, a Person directly
or indirectly Controlling, Controlled by or under common Control with such
Person.
"Agreement" shall have the meaning set forth in the Preamble.
"Agreement of Merger" shall have the meaning set forth in Section
2.2(a).
"Average Market Price" shall mean, with respect to the Corporation
Common Stock to be sold by the Corporation to the public in the IPO, the average
of the closing prices, as reported on the NYSE Composite Tape, on each of the
first five days of trading on the NYSE (exclusive of the pricing day).
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"Business Day" shall mean any day on which banks are generally open to
conduct business in the State of New York.
"Change of Control" shall mean an event (such as a Transfer of voting
securities) that causes a Person that holds a Company Interest to cease to be
Controlled by such Person's Parent; provided, however, that an event that causes
Duke or Phillips to be Controlled by another Person shall not constitute a
Change of Control.
"Closing Date" shall have the meaning set forth in Section 3.1 of the
Contribution Agreement.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended.
"Company" shall have the meaning set forth in the Preamble.
"Company Interest" shall mean, with respect to any Person, such
Person's equity interest in the Company.
"Contribution Agreement" shall have the meaning set forth in the
Recitals.
"Control" shall mean the possession, directly or indirectly, through
one or more intermediaries, by any Person or group (within the meaning of
Section 13(d)(3) under the Securities Exchange Act of 1934, as amended) of both
of the following:
(a) (i) in the case of a corporation, more than 25% of the direct or
indirect economic interests in the outstanding equity securities thereof;
(ii) in the case of a limited liability company, partnership, limited
partnership or venture, the right to more than 25% of the distributions
therefrom (including liquidating distributions); (iii) in the case of a
trust or estate, including a business trust, more than 25% of the
beneficial interest therein; and (iv) in the case of any other entity, more
than 25% of the economic or beneficial interest therein; and
(b) in the case of any entity, the power or authority, through
ownership of voting securities, by contract or otherwise, to control or
direct the management and policies of the entity.
"Corporation" shall have the meaning set forth in Section 2.2(a).
"Corporation Common Stock" shall have the meaning set forth in Section
2.2(e).
"Corporation Interest" shall mean, with respect to any Person, such
Person's percentage ownership (direct and indirect), exclusive of any Market
Shares owned (directly or indirectly) by such Person, of the outstanding
Corporation Common Stock at the time of measurement.
"DEFS Holding" shall have the meaning set forth in the Preamble.
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"DEFS Subsidiary" shall have the meaning set forth in the Contribution
Agreement for purposes of Annex B thereof.
"Disguised Sale Amount" shall mean the excess of (x) $1,200,000,000
over (y) the product of the Percentage Interest of PGC in the Company as of the
Closing Date and $2,400,000,000.
"Distribution" shall have the meaning set forth in the LLC Agreement.
"Duke" shall have the meaning set forth in the Preamble.
"Duke Group" shall mean Duke and its Subsidiaries (other than the
Company, any DEFS Subsidiary, any PGC Subsidiary or any other Subsidiary of the
Company).
"Duke Shareholder" shall mean the holder of any Corporation Common
Stock (other than Market Shares) that is Duke or a Subsidiary of Duke or, if at
any time there is more than one such holder, each of such holders.
"Enterprise Value" shall mean the sum of (x) the Parties' Equity Value
and (y) $2,400,000,000; provided, that if the Merger becomes effective on or
after the date two years after the Closing Date, "Enterprise Value" shall mean
$5,500,000,000.
"Financing" shall have the meaning set forth in the Contribution
Agreement.
"Flow Through Subsidiaries" shall have the meaning set forth in the
LLC Agreement.
"Governance Agreement" shall have the meaning set forth in the
Recitals.
"Governmental Entity" shall mean any federal, state, political
subdivision or other governmental agency or instrumentality, foreign or
domestic.
"Income Tax" shall mean any federal, state, local or foreign Tax
measured by net income or capital gain.
"IPO" shall mean the initial offering of shares of Corporation Common
Stock to the public in a transaction registered under the Securities Act.
"LLC Agreement" shall have the meaning set forth in the Recitals.
"Market Shares" shall mean shares purchased by a Person through
open-market purchases, other than those shares purchased to prevent dilution in
accordance with Article X of the Certificate of Incorporation of the
Corporation.
"Member" shall have the meaning set forth in the LLC Agreement.
"Merger" shall have the meaning set forth in Section 2.2(a).
"Neutral Firm" shall mean Arthur Andersen L.L.P.
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"NYSE" shall mean the New York Stock Exchange, Inc.
"Parent" shall mean, with respect to a particular Person, the Person
that Controls such particular Person and that is not itself Controlled by any
other Person.
"Parties' Corporation Interest" shall mean the difference between (x)
100% and (y) the Public's Corporation Interest.
"Parties' Equity Value" shall mean the product of (i) the quotient of
(x) the Parties' Corporation Interest divided by (y) the Public's Actual
Corporation Interest multiplied by (ii) the Public's Equity Value.
"Percentage Interest" shall mean, with respect to the Company Interest
issued to DEFS Holding pursuant to Section 2.1(j)(i) of the Contribution
Agreement, 69.7 percent, and with respect to the Company Interest issued to PGC
pursuant to Section 2.1(k)(i) of the Contribution Agreement, 30.3 percent.
"Person" shall mean any individual, partnership, limited liability
company, firm, corporation, association, joint venture, trust or other entity or
any Governmental Entity.
"PGC" shall have the meaning set forth in the Recitals.
"PGC Contribution" shall have the meaning set forth in Section 4.2.
"PGC Distribution" shall have the meaning set forth in Section 4.2.
"PGC Subsidiary" shall have the meaning set forth in the Contribution
Agreement for purposes of Annex B thereof.
"PGCSI" or "Phillips Member Parent" shall mean Phillips Gas Company
Shareholder, Inc., a Delaware corporation and a wholly-owned Subsidiary of
Phillips.
"Phillips" shall have the meaning set forth in the Preamble.
"Phillips Enterprise Value" shall mean the product of (x) the
Enterprise Value and (y) .389.
"Phillips Equity Value" shall mean the difference between (x) Phillips
Enterprise Value and (y) $1,200,000,000.
"Phillips Group" shall mean Phillips and its Subsidiaries (other than
the Company, any DEFS Subsidiary, any PGC Subsidiary or any other Subsidiary of
the Company).
"Phillips Shareholder" shall mean the holder of any Corporation Common
Stock (other than Market Shares) that is Phillips or a Subsidiary of Phillips
or, if at any time there is more than one such holder, each of such holders.
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"Post-Closing Period" for any Person means any taxable period
beginning, with respect to such Person, after the Closing Date, and the portion,
beginning after the Closing Date, of any taxable period that includes, with
respect to such Person, but does not end on, the Closing Date.
"Public's Actual Corporation Interest" shall mean the quotient,
expressed as a percentage, of (x) the number of shares of the Corporation Common
Stock sold by the Corporation in the IPO (which excludes shares issued to
officers and employees of the Corporation or the Company concurrently with the
IPO pursuant to compensation or benefit plans), but excluding any shares sold
pursuant to the underwriters' over-allotment option, divided by (y) the number
of shares of Corporation Common Stock outstanding immediately after the Merger
(including shares to be issued pursuant to rights received in the Merger) and
the IPO, plus shares issued to officers and employees of the Corporation or the
Company concurrently with the IPO pursuant to compensation or benefit plans, but
excluding any shares sold pursuant to the underwriters' over-allotment option.
"Public's Corporation Interest" shall mean the quotient, expressed as
a percentage, of (x) the number of shares of the Corporation Common Stock sold
by the Corporation in the IPO, plus shares issued to officers and employees of
the Corporation or the Company concurrently with the IPO pursuant to
compensation or benefit plans, but excluding any shares sold pursuant to the
underwriters' over-allotment option, divided by (y) the number of shares of
Corporation Common Stock outstanding immediately after the Merger (including
shares to be issued pursuant to rights received in the Merger) and the IPO, plus
shares issued to officers and employees of the Corporation or the Company
concurrently with the IPO pursuant to compensation or benefit plans, but
excluding any shares sold pursuant to the underwriters' over-allotment option.
"Public's Equity Value" shall mean the product of (i) the Average
Market Price multiplied by (ii) the number of shares sold by the Corporation in
the IPO (which excludes shares issued to officers and employees of the
Corporation or the Company concurrently with the IPO pursuant to compensation or
benefit plans), but excluding any shares sold pursuant to the underwriters'
over-allotment option.
"Registration Rights Agreement" shall have the meaning set forth in
Section 3.1(a).
"Regulation" shall mean the income tax regulations promulgated under
the Code by the U.S. Department of the Treasury (whether final or temporary).
"Returns" or "Tax Returns" means returns, declarations, statements,
reports, forms, property tax renditions or other documents or information
required to be filed with or supplied to any Taxing Authority.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shareholders Agreement" shall have the meaning set forth in Section
3.1(a).
"Subsidiary" shall mean, when used with respect to any Person, any
Affiliate of such Person that is Controlled by such Person.
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"Tax" or "Taxes" shall mean all taxes (whether federal, state, local
or foreign) based upon or measured by income and any other tax whatsoever,
including gross receipts, profits, windfall profits, sales, use, occupation,
value added, ad valorem, transfer, franchise, withholding, payroll, employment,
excise, stamp, premium, capital stock, production, business and occupation,
disability, severance, or real or personal property taxes, fees, or assessments
of any kind whatsoever imposed by any Governmental Entity, together with any
interest or penalties imposed with respect thereto.
"Tax Proceeding" means any Tax audit, contest, litigation or other
proceeding with or against a Governmental Entity.
"Taxing Authority" shall mean any Governmental Entity having
jurisdiction over the assessment, determination, collection or other imposition
of any Tax.
"Transfer" shall mean any sale, assignment or other transfer, whether
by operation of law or otherwise (but not any deemed transfer pursuant to
Section 338 of the Code of the assets of a corporation or its Subsidiary in
connection with the purchase of the stock of such corporation). "Transferred"
and "Transferring" shall have correlative meanings.
"Total Equity Value" shall mean the quotient of (x) the Public's
Equity Value divided by (y) the Public's Actual Corporation Interest.
"Two Year Period" shall mean the period beginning on (and including)
the Closing Date and ending on (and including) the later of (a) the second
anniversary of the Closing Date and (b) the date of consummation of the IPO.
Section 1.2 Construction. Unless the context requires otherwise: (a)
the gender (or lack of gender) of all words used in this Agreement includes the
masculine, feminine and neuter; (b) references to Articles and Sections refer to
Articles and Sections of this Agreement; (c) references to Exhibits refer to the
Exhibits attached to this Agreement; (d) references to laws refer to such laws
as they may be amended from time to time, and references to particular
provisions of a law include any corresponding provisions of any succeeding law;
(e) references to money refer to legal currency of the United States of America;
(f) the word "including" means "including, without limitation"; and (g) all
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms.
ARTICLE II
THE IPO
Section 2.1 Efforts. (a) The Company agrees to use its reasonable best
efforts to prepare for, effect and consummate the IPO (market conditions
permitting) as soon as practicable following the date hereof, including
selecting underwriters, preparing and filing with the SEC a registration
statement and filings under applicable state securities or "blue sky" laws or
similar securities laws and determining the terms of the IPO; provided that,
notwithstanding anything to the contrary in this Agreement, the Company shall
not consummate any IPO on or before the date two years after the date of this
Agreement without the prior written consent of Phillips if the consummation of
the IPO (including the potential effect of any underwriters' over-allotment) in
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accordance with the provisions of this Agreement would result in (i) Phillips'
Corporation Interest being less than 20% upon consummation of the IPO or (ii) an
Enterprise Value immediately following the IPO of less than $4,400,000,000;
provided, further, that for purposes of the calculations contemplated in (i) and
(ii) in the preceding proviso only, the "Average Market Price" shall be the
proposed public offering price of the Corporation Common Stock in the IPO.
(b) Each of Duke and Phillips agrees to (i) provide reasonable
assistance to the Company in effecting the IPO and (ii) cause any Duke
Shareholder or Phillips Shareholder, respectively, not to Transfer any or all of
their shares of Corporation Common Stock for a period of six months following
the consummation of the IPO and to agree to such other customary terms as are
reasonably requested by the underwriters in connection with the IPO.
(c) Duke agrees that, prior to the consummation of the Merger, it will
cause the board of directors of DEFS Holding to be comprised solely of three
directors designated by Phillips (or four if Phillips designates an Independent
Director (as defined in the Certificate of Incorporation)) and five directors
designated by Duke (or six or seven if Duke designates one or two Independent
Directors, respectively).
Section 2.2 Formation of the Corporation. (a) Each of Duke and
Phillips agrees to take such corporate action as is necessary and desirable to
cause (i) PGCSI to be merged with and into DEFS Holding, with DEFS Holding
surviving (such surviving corporation, the "Corporation", and such merger, the
"Merger"), immediately prior to the consummation of the IPO and (ii) an
Agreement of Merger substantially in the form of Exhibit A (the "Agreement of
Merger") to be filed in accordance with the Delaware General Corporation Law.
(b) Each of Duke and Phillips presently intends that, if the IPO
occurs, approximately 20% of the Corporation Common Stock shall be sold by the
Corporation pursuant to the IPO (including shares to be issued to officers and
employees of the Corporation or the Company concurrently with the IPO);
provided, however, that this percentage may vary depending on market conditions
and other factors.
(c) Phillips represents, warrants and agrees that at the time of such
Merger, (i) PGCSI shall have no assets or liabilities, contingent or otherwise,
other than through its ownership of its interest in PGC and (ii) PGC shall have
no assets or liabilities, contingent or otherwise, other than through its
ownership of its interest in the Company.
(d) Duke represents, warrants and agrees that at the time of the
Merger, DEFS Holding shall have no assets or liabilities, contingent or
otherwise, other than through its ownership of its interest in the Company.
(e) Duke agrees to cause the Duke Shareholder and Phillips agrees to
cause the Phillips Shareholder, respectively, to vote its shares to cause the
Corporation upon consummation of the IPO to have a single class of common stock
(the "Corporation Common Stock") outstanding and no other classes of capital
stock or other securities (except for options to purchase shares of the
Corporation Common Stock issued to officers, directors and employees of the
Corporation or the Company or its Subsidiaries).
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Section 2.3 Post-IPO Ownership. (a) Each of Duke and Phillips
presently intends that, if the IPO occurs, approximately 20% of the Corporation
Common Stock (including shares to be issued to officers and employees of the
Corporation or the Company concurrently with the IPO) shall be sold by the
Corporation pursuant to the IPO; provided, however, that this percentage may
vary depending on market conditions and other factors.
(b) Each of Duke and Phillips agrees to take, or cause to be taken,
such action (including the Merger and any adjustments by the Corporation to the
number of shares of Corporation Common Stock owned by Duke and Phillips) as is
necessary and desirable to provide that upon the end of the seventh day of
trading on the NYSE (excluding the pricing day and without regard to the
exercise of any underwriters' over-allotment), each of Duke and Phillips shall
own, directly or indirectly, a percentage of the outstanding Corporation Common
Stock determined as follows:
(1) Phillips' Corporation Interest shall equal the quotient,
expressed as a percentage, of (x) Phillips Equity Value divided by (y) Total
Equity Value.
(2) Duke's Corporation Interest shall equal the difference
between (x) the Parties' Corporation Interest and (y) Phillips' Corporation
Interest.
Annex A sets forth examples of determinations of Phillips' Corporation
Interest and Duke's Corporation Interest at various Public's Equity Values
(assuming that no shares are issued to officers or employees of the Corporation
or the Company concurrently with the IPO pursuant to compensation or benefit
plans). The percentages and calculations set forth in this Section 2.3 do not
give effect to any underwriters' over-allotment. In the event that there is an
underwriters' over-allotment and such over-allotment is exercised, each of
Duke's and Phillips' Corporation Interest and the interest of the public in the
Corporation (prior to such exercise) shall all be reduced pro rata.
Section 2.4 Certificate of Incorporation and Bylaws. Each of Duke and
Phillips agrees to take such corporate action as is necessary to cause the
Corporation to adopt a Certificate of Incorporation and Bylaws of the
Corporation substantially in the forms attached to the Agreement of Merger.
ARTICLE III
EXECUTION OF AGREEMENTS; PRIMARY VEHICLE
Section 3.1 Execution of Agreements. (a) Duke agrees to take all
corporate action to cause each Duke Shareholder (including Duke, if applicable)
to execute, and Phillips agrees to take all corporate action to cause each
Phillips Shareholder (including Phillips, if applicable) to execute, a
Shareholders Agreement substantially in the form of Exhibit B (the "Shareholders
Agreement"). Each of Duke and Phillips agrees to execute, and agrees that it
will take all corporate action to cause the Corporation to execute, a
Registration Rights Agreement substantially in the form of Exhibit C (the
"Registration Rights Agreement").
(b) Duke agrees to cause each Duke Shareholder to comply with the
obligations of a Duke Shareholder under the Shareholders Agreement, and Phillips
agrees to cause each Phillips
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Shareholder to comply with the obligations of a Phillips Shareholder under the
Shareholders Agreement.
(c) The parties hereto agree that, from time to time, whether before,
at or after the Closing Date, each of them will execute and deliver, or cause to
be executed and delivered, such further agreements and instruments and take such
other action as may be necessary to effectuate the provisions, purposes and
intents of this Agreement.
Section 3.2 Market Shares. Duke agrees to, and to cause its Affiliates
to, make nominations and vote any and all of their Market Shares in accordance
with the requirements applicable to Duke's Total Corporation Interest (as
defined in the Shareholders Agreement) and take all other actions required of a
Duke Shareholder (as defined in the Shareholders Agreement) under Sections 2.1
and 2.2 of the Shareholders Agreement. Phillips agrees to, and to cause its
Affiliates to, make nominations and vote any and all of their Market Shares in
accordance with the requirements applicable to Phillips's Total Corporation
Interest (as defined in the Shareholders Agreement) and take all other actions
required of a Phillips Shareholder (as defined in the Shareholders Agreement)
under Sections 2.1 and 2.2 of the Shareholders Agreement.
Section 3.3 Primary Vehicle. Each of Duke and Phillips presently
intends that the Corporation shall be the primary vehicle by which it conducts
the midstream gas gathering and processing business in the United States and
Canada.
ARTICLE IV
TAX MATTERS
Section 4.1 Distributions to PGC. For the period, if any, beginning at
the time of consummation of the IPO and ending on the second anniversary of the
Closing Date, without the prior written consent of Duke and Phillips: (i) the
Company shall not make (or enter into a plan or arrangement to make) any
Distribution of cash or other property to PGC in excess of the product of the
aggregate Distribution to all Members and PGC's Percentage Interest as of the
Closing Date, (ii) the Company shall not make (or enter into a plan or
arrangement to make) any Distribution to PGC of cash or other property other
than Distributions to fund dividends by the Corporation to its shareholders and
Distributions pursuant to Section 7.6(a)(i) of the LLC Agreement and (iii) PGC
shall not be liquidated, shall not be merged into the Corporation, shall not
distribute to any shareholder of PGC the Company Interest issued to PGC pursuant
to Section 2.1(k) of the Contribution Agreement and shall not be converted into,
or merged into or otherwise caused to become, a partnership or disregarded
entity for federal income tax purposes (nor shall there be any plan or
arrangement to do so). Without the prior written consent of each of Duke and
Phillips: (a) no amendment shall be made to Section 6.3, Article VII or Article
VIII (other than Section 8.2(b)) of the LLC Agreement, or any reference thereto
in the LLC Agreement or any defined term used therein, prior to the second
anniversary of the Closing Date, and any amendment made after such second
anniversary to any such provision shall not apply to any taxable period, or
portion thereof, ending on or before the second anniversary of the Closing Date
and (b) no amendment shall be made to Section 8.2(b) of the LLC Agreement or any
reference thereto in the LLC Agreement or any defined term used therein.
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Section 4.2 Tax Status. Each of Duke, Phillips and the Company shall
take no action or position inconsistent with (or that could reasonably be
expected to be viewed by the Internal Revenue Service as inconsistent with), and
shall make or cause to be made all applicable elections with respect to: (a) the
treatment of the Company (or any successor thereto), with respect to all times
during the Two Year Period, as a partnership for U.S. Federal income tax
purposes and the treatment of each of the Flow Through Subsidiaries (or any
successor thereto), with respect to all times during the Two Year Period, as a
partnership or disregarded entity for U.S. Federal income tax purposes; (b) the
treatment of the Company, with respect to all times during the Two Year Period,
as not being a publicly traded partnership for United States Federal income tax
purposes; (c) the allocation of the Financing under Regulation Section
1.752-3(a)(3) among the Members in proportion to their Percentage Interests as
of the Closing Date; (d) the treatment of the contribution to the Company by
DEFS Holding pursuant to Section 2.2 of the Contribution Agreement as a
contribution pursuant to Code Section 721, the treatment of the distribution to
DEFS Holding pursuant to Section 3.2(c)(2) of the Contribution Agreement (as
adjusted pursuant to Section 3.3 thereof) as a distribution pursuant to Code
Section 731 and the treatment that, for purposes of the Code, neither such
contribution nor such distribution is a transfer that constitutes a sale or
exchange (or portion thereof) of property in whole or in part to the Company by
a Member in the Company acting in a capacity other than as a Member of the
Company; (e) the treatment of the contribution to the Company by PGC pursuant to
Section 2.3 of the Contribution Agreement (the "PGC Contribution") as a
contribution pursuant to Code Section 721, the treatment of the distribution to
PGC pursuant to Section 3.2(c)(1) of the Contribution Agreement (as adjusted
pursuant to Section 3.3) (the "PGC Distribution") as a distribution pursuant to
Code Section 731 and the treatment that, for purposes of the Code, neither the
PGC Contribution nor the PGC Distribution is a transfer that constitutes a sale
or exchange (or portion thereof) of property in whole or in part to the Company
by a Member in the Company acting in a capacity other than as a Member of the
Company (except in the case of this clause (e) that Duke, Phillips and the
Company shall treat (except to the extent Duke, Phillips, the Members and the
Company agree in writing or are required by the Neutral Firm to treat otherwise)
an amount of the PGC Distribution equal to the Disguised Sale Amount as proceeds
of a sale by PGC to the Company under Code Section 707(a) and an amount of the
PGC Contribution equal in fair market value to the Disguised Sale Amount as
property that is sold by PGC to the Company under Code Section 707(a) (such
property treated as having been sold having regular federal income tax basis
equal to the aggregate regular Federal income tax basis of the property
contributed in the PGC Contribution multiplied by a fraction the numerator of
which is the Disguised Sale Amount and the denominator of which is the value of
the property contributed in the PGC Contribution, such value being for this
purpose $2,139,500,000)); and (f) the treatment of the merger of PGCSI into DEFS
Holding pursuant to Section 2.2(a) hereof as a "reorganization" within the
meaning of Code Section 368(a) in which no gain or loss is recognized to Duke,
Phillips, PGC, DEFS Holding, the Company, or any other Person.
Section 4.3 Tax Proceedings; Cooperation and Exchange of Information.
(a) In the case of any Tax Proceeding relating to any Income Tax Return or any
Income Tax items of the Company or any Subsidiary of the Company for any
Post-Closing Period, the Company shall be entitled to control such Tax
Proceeding; provided, however, that (i) the Company shall promptly notify Duke
and Phillips (describing the jurisdiction and year(s) at issue and including a
copy of any materials received from the applicable Governmental Entity in
connection therewith) upon receipt of notice of any such Tax Proceeding and
shall thereafter promptly forward to Duke and Phillips copies of any
communications received from or sent to any Governmental Entity by the Company
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or any of its Subsidiaries in connection with any such Tax Proceeding; (ii) the
Company shall provide Duke and Phillips with a timely and reasonably detailed
account of each stage of such Tax Proceeding and a copy of all documents
relating to such Tax Proceeding; (iii) the Company shall consult with Duke and
Phillips before taking any significant action in connection with such Tax
Proceeding; (iv) the Company shall consult with Duke and Phillips and offer Duke
and Phillips an opportunity to comment before submitting any written materials
prepared or furnished in connection with such Tax Proceeding (including, to the
extent practicable, any documents furnished to the applicable Governmental
Entity in connection with any discovery request); (v) the Company shall defend
such Tax Proceeding diligently and in good faith as if the Company were the
taxpayer in interest in connection with such Tax Proceeding; and (vi) (A) in the
case of any proposed settlement of any such Tax Proceeding, which settlement
will result in aggregate Tax payments by Phillips with respect to the period
beginning on the Closing Date and ending on the second anniversary of the
Closing Date (or, if the Tax Proceeding relates to a taxable period (or portion
thereof) after such second anniversary, then with respect to the two year period
beginning on the first day of the taxable period to which the Tax Proceeding
relates) of greater than $7,575,000, the Company shall not settle, compromise or
abandon any such Tax Proceeding without obtaining the prior written consent,
which consent shall not be unreasonably withheld, of Phillips and (B) in the
case of any proposed settlement of any such Tax Proceeding, which settlement
will result in aggregate Tax payments by Duke with respect to the period
beginning on the Closing Date and ending on the second anniversary of the
Closing Date (or, if the Tax Proceeding relates to a taxable period (or portion
thereof) after such second anniversary, then with respect to the two year period
beginning on the first day of the taxable period to which the Tax Proceeding
relates) of greater than $17,425,000, the Company shall not settle, compromise
or abandon any such Tax Proceeding without obtaining the prior written consent,
which consent shall not be unreasonably withheld, of Duke. In the event that
Duke or Phillips reasonably withholds such consent pursuant to the preceding
clause (vi)(A) or (B), the parties shall negotiate in good faith to resolve
their differences and, failing that, the Neutral Firm shall resolve such
disagreement. The above provisions of this Section 4.3(a) shall cease to apply
with respect to taxable periods beginning after the consummation of the IPO,
except to the extent that failure of such provisions to apply could reasonably
be expected to affect any member of the Phillips Group or the Duke Group (other
than in its capacity as a direct or indirect shareholder, or affiliate of such a
shareholder, of the Corporation).
(b) The Company shall present (such presentation to be made (i) in the
case of a Tax Return for a Company taxable year ending on December 31st, no
later than July 1st in the year following the end of such Company taxable year
and (ii) in the case of a Tax Return for a Company taxable year ending on a date
other than December 31st, no later than the date that is six months following
the end of such Company taxable year) any Federal Income Tax Returns of the
Company to Phillips for Phillips' review and shall revise such Tax Returns prior
to filing to reflect any reasonable comments requested in good faith by Phillips
in writing within 15 Business Days after such presentation of such Tax Returns
to Phillips; provided, however, that in the event that the Company or Duke
disagrees with any such comments of Phillips, then the Company, Duke and
Phillips shall endeavor to resolve their disagreement over such comments and,
failing that, the Neutral Firm shall resolve such disagreement prior to the date
such Tax Returns are due (including extensions) and such Tax Returns shall be
filed in such manner as the Neutral Firm determines. The fees and expenses of
the Neutral Firm in connection with this Section 4.3(b) shall be allocated
between Phillips and Duke by the Neutral Firm. At Duke's or Phillips' request,
the Company shall make available to Duke and Phillips, respectively, for their
review at least 15 Business Days prior
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to the due date (including extensions) any state, local or foreign Income Tax
Returns of the Company or its Subsidiaries. The above provisions of this Section
4.3(b) shall cease to apply with respect to taxable periods beginning after the
consummation of the IPO, except to the extent that failure of such provisions to
apply could reasonably be expected to affect any member of the Phillips Group
(other than in its capacity as a direct or indirect shareholder, or affiliate of
such a shareholder, of the Corporation).
(c) Cooperation and Exchange of Information. Duke, Phillips, the
Company and DEFS Holding (and the Corporation, from and after the Merger) shall
(and shall cause their respective Subsidiaries to) cooperate with one another
with respect to Tax matters. As soon as practicable, but in any event within 30
days after the request of Duke or Phillips, from and after the Closing Date, the
Company shall deliver to Duke or Phillips, respectively, such information and
data concerning the Company and its Subsidiaries and make available such
employees of the Company and its Subsidiaries as Duke or Phillips may reasonably
request (including providing the information and data reasonably required by
Duke's and Phillips' customary Tax and accounting questionnaires) in order to
enable Duke and Phillips to complete and file all Tax Returns which they each
may be required to file with respect to the Company and its Subsidiaries or to
respond to Tax audits or other inquiries relating to Taxes by any Governmental
Entities with respect to such operations and to otherwise enable Duke and
Phillips each to satisfy their respective accounting, Tax and other legitimate
business requirements. Such cooperation and information shall include provision
of powers of attorney to Duke or Phillips relating to Tax matters (e.g., for the
purpose of signing Returns and defending audits) and promptly forwarding copies
of appropriate notices and forms or other communications received from or sent
to any Governmental Entity that relate to the Company and its Subsidiaries, and
providing copies of all relevant Tax Returns, together with accompanying
schedules and related workpapers, documents relating to rulings or other
determinations by any Governmental Entities and records concerning the ownership
and tax basis of property, which the Company, the Corporation and their
Subsidiaries may possess. The Company and DEFS Holding (and the Corporation,
from and after the time of the Merger) shall (and shall cause their respective
Subsidiaries to) make their respective employees and facilities available on a
mutually convenient basis to provide explanation of any documents or information
provided hereunder. The above provisions of this Section 4.3(c) shall cease to
apply with respect to taxable periods beginning after the consummation of the
IPO, except to the extent that failure of such provisions to apply could
reasonably be expected to affect any member of the Phillips Group or the Duke
Group (other than in its capacity as a direct or indirect shareholder or
affiliate of such a shareholder, of the Corporation). Notwithstanding any other
provision, (i) Duke shall not be required to provide any Person with any
consolidated, combined, affiliated or unitary Income Tax Return or copy thereof
that includes Duke or any other member of the Duke Group and (ii) Phillips shall
not be required to provide any Person with any consolidated, combined,
affiliated or unitary Income Tax Return or copy thereof that includes Phillips
or any other member of the Phillips Group.
Section 4.4 Debt Repayment. From and after consummation of the IPO, to
the extent that proceeds from the IPO (or any other funds contributed to the
Company or any of its Subsidiaries) are used to repay debt owed by the Company
or any of its Subsidiaries (for so long as the Company or such Subsidiary is
treated as a partnership for federal income tax purposes), such funds shall be
contributed to the Company and its Subsidiaries by the limited liability company
interest holders or other equity interest holders in the Company or such
Subsidiaries in proportion to the allocation of debt to such holders provided in
Section 8.2(b)(iii) of the LLC Agreement.
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<PAGE> 16
ARTICLE V
TRANSFER RESTRICTIONS
Section 5.1 Structure; Transfers. For the period from the date of this
Agreement until the consummation of the IPO, (i) Duke shall cause DEFS Holding
to own and hold all of Duke's Company Interest and no other assets or
liabilities, and (ii) Phillips shall cause (A) PGC to own and hold all of
Phillips' Company Interest and no other assets or liabilities and (B) PGCSI to
own and hold all of the capital stock of PGC and no other assets or liabilities.
Section 5.2 Change of Control. Each of Duke and Phillips agrees that
prior to consummation of the IPO, as a condition to the consummation of any
transaction that will result in a Change of Control of DEFS Holding or PGC,
respectively, it will cause the new Parent of DEFS Holding or PGC, respectively,
to assume the obligations of Duke or Phillips, as applicable, under this
Agreement.
ARTICLE VI
TERMINATION OF AGREEMENTS
Section 6.1 Termination of Agreements. The Governance Agreement is
hereby terminated in its entirety and shall be void and have no further force
and effect; provided, however, that such termination shall not relieve any party
thereto of any liability for any breach of the Governance Agreement that
occurred prior to the termination thereof. From and after the termination of the
Governance Agreement, any reference to the Governance Agreement in Annex B of
the Contribution Agreement (or in any definition of a defined term used in Annex
B) shall be deemed to be a reference to the corresponding provision or
provisions of this Agreement or the LLC Agreement.
ARTICLE VII
EMPLOYEE MATTERS
Section 7.1 Definitions; Controlling Provisions. As used in this
Article VII, (i) the terms "DEFS" and "TEPPCO" shall have the meanings assigned
to such terms in the Contribution Agreement, (ii) the terms "Bonuses," "Change
in Control Severance Plan," "Continued Employees," "DEFS Employee," "Duke FSP,"
"Eligible Expenses," "Employee," "New Welfare Plans," "Old Welfare Plans," "PGC
Employee," "Phillips FSP," "Retained DEFS Employee" and "Transferred PGC
Employee" shall have the meanings assigned to such terms in Annex A to the
Contribution Agreement, (iii) the term "Continued Duke Welfare Plan" shall have
the meaning set forth in Section 7.4(a), (iv) the term "TEPPCO Employee" shall
mean any individual who is, immediately prior to the date hereof, an Employee of
TEPPCO, and (v) the term "DEFS Severance Plan" shall mean that certain 2000 Duke
Energy Field Services Severance Benefits Plan as in effect on April 1, 2000. The
terms of this Article VII shall govern and control to the extent they are
inconsistent or conflict with the terms of Annex A to the Contribution
Agreement, and the provisions of Sections 7.3, 7.4 and 7.5 shall be deemed to be
a part of Annex A to the Contribution Agreement
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<PAGE> 17
for purposes of the indemnification provisions of Sections 9.1(iii), 9.2(a)(iv)
and 9.2(b)(iv) of the Contribution Agreement. The provisions of Section 5.1 of
Annex A to the Contribution Agreement shall apply with respect to the
compensation and benefit matters addressed in this Article VII.
Section 7.2 Transfer of Employees. If a DEFS Employee or a PGC
Employee is to be transferred to the Company pursuant to the terms of Annex A to
the Contribution Agreement, then the Company may direct Duke and Phillips,
respectively, to cause the transfer of such employee to be made to the Company
or to a Subsidiary of the Company that is designated by the Company. Continued
Employees may be employed by the Company or any Affiliate of the Company as
determined by the Company from time to time in its sole discretion.
Section 7.3 TEPPCO Employees. For all purposes of Annex A to the
Contribution Agreement and this Article VII (except where specifically provided
otherwise), each TEPPCO Employee shall be considered a Retained DEFS Employee.
Duke shall have no obligation under Section 3.2 of Annex A to the Contribution
Agreement to reimburse the Company for a pro-rata portion of the Bonuses for
calendar year 2000 that are paid to Retained DEFS Employees who are TEPPCO
Employees. Schedule 7.3 to this Agreement sets forth a list of agreements
relating to TEPPCO Employees that shall be considered to be among the agreements
listed in Schedule 2.5(a)(i) or Schedule 2.5(a)(ii) to Annex A to the
Contribution Agreement (as indicated on Schedule 7.3 to this Agreement);
provided, however, that the Company shall have no reimbursement obligation to
Duke with respect to any such agreement that is considered to be among the
agreements listed in Schedule 2.5(a)(i) to Annex A to the Contribution
Agreement.
Section 7.4 Welfare Benefits. (a) In order to permit benefits
transition with respect to Retained DEFS Employees, for the period beginning on
the date hereof and ending on the earliest of (i) December 31, 2000, (ii) such
date as Duke shall cease to have a greater than 50%, direct or indirect,
ownership interest in the Company, or (iii) such date as the Company or Duke
shall designate with respect to any particular Old Welfare Plan (provided that
Duke or the Company shall provide reasonable notice under the circumstances to
the other party prior to any such date), the Company and/or its wholly-owned
Subsidiaries shall be participating employers on behalf of their employees
(including any Continued Employees) who meet the requirements for eligibility
under the following Old Welfare Plans maintained by Duke: the Duke Energy
Medical, Dental, Cafeteria (FSP), Basic Life Insurance, Supplemental and
Dependent Life Insurance, Basic, Supplemental and Dependent Accidental Death and
Dismemberment Insurance, Business Travel Accident Insurance and Long-Term Care
Insurance Plans (each such Old Welfare Plan is herein referred to as a
"Continued Duke Welfare Plan"); provided, however, that retiree medical, dental
and life insurance coverages under the applicable Continued Duke Welfare Plans
shall not become applicable to an individual who either is not a Retained DEFS
Employee or fails to meet such requirements as Duke shall impose for such
coverages. Duke may terminate the participation by the Company and its
wholly-owned Subsidiaries in a particular Continued Duke Welfare Plan prior to
December 31, 2000, pursuant to clause (iii) of the preceding sentence only if
(1) Duke will be terminating such plan in its entirety as of the date designated
by Duke pursuant to such clause or (2) Duke has determined that such continued
participation by the Company and/or any of its wholly-owned Subsidiaries could
subject Duke or such plan to fines, penalties, excise taxes, loss of tax
deductions or other liabilities (other than liabilities for the benefits to be
provided under such plan). Without limiting the generality of the preceding
provisions of this Section 7.4(a), it is understood
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<PAGE> 18
and agreed that such provisions shall not override the provisions of Section
4.2(b) of Annex A to the Contribution Agreement. For purposes of applying
Section 4.5(c) of Annex A to the Contribution Agreement, the Continued Duke
Welfare Plans shall be deemed to be New Welfare Plans; provided, however, that
Eligible Expenses of a Retained DEFS Employee shall be determined without regard
to when such expenses are recorded by the applicable plan administrator or
reported to the Company.
(b) Notwithstanding the provisions of Section 4.5(d) of Annex A to the
Contribution Agreement, for the period specified in Section 7.4(a) as it applies
to the Duke FSP, the Retained DEFS Employees shall continue to be eligible, and
the Transferred PGC Employees shall be eligible, to participate in the Duke FSP.
In the case of the Retained DEFS Employees, such continued participation shall
be based on their elections under the Duke FSP that are in effect immediately
prior to the date hereof (as such elections may be adjusted from time to time in
accordance with the terms of the Duke FSP). In the case of the Transferred PGC
Employees, the provisions of Section 4.5(d) of Annex A to the Contribution
Agreement shall be applied as if the Duke FSP were the New FSP as defined
therein, except that references therein to the Company shall be deemed to refer
to Duke; provided, however, that if the aggregate amount of the transferred
account balances of Transferred PGC Employees from the Phillips FSP to the Duke
FSP is negative, then the Company shall pay Phillips the amount of such
aggregate negative balance promptly following such account balance transfer. The
parties hereto agree and acknowledge that it is their intention that the
economic risks and benefits associated with calendar year 2000 (or any portion
thereof) participation in the Duke FSP by Retained DEFS Employees (both before
and after the date hereof), Transferred PGC Employees, and any other employees
of the Company and its Subsidiaries be borne or enjoyed, as the case may be, by
the Company. Accordingly, Duke and the Company agree that, as soon as
administratively feasible after all claims under the Duke FSP have been
processed for calendar year 2000 with respect to the employees of the Company
and its Subsidiaries, one such party shall make a payment to the other (as
appropriate) to ensure such result to the greatest extent possible.
Section 7.5 Severance Benefits. (a) The Company or a Subsidiary of the
Company shall reimburse Phillips for the cash severance benefit paid by Phillips
or any Subsidiary of Phillips to certain of their employees in accordance with
the terms of Article I of Exhibit A to that certain Transition Services
Agreement between Phillips and the Company dated March 17, 2000.
(b) Section 4.2(b) of Annex A to the Contribution Agreement shall
apply to each Retained DEFS Employee who is a TEPPCO Employee and who was
covered by the Change in Control Severance Plan immediately prior to the date
hereof; provided, however, that (i) the Company shall not have any reimbursement
obligation to Duke under such Section 4.2(b) with respect to the cash severance
benefit paid to any such employee and (ii) Duke shall not have any reimbursement
obligation to the Company under such Section 4.2(b) for any extended coverage
under a welfare benefit plan.
(c) The provisions of this Section 7.5(c) shall not apply with respect
to any Retained DEFS Employee who is a TEPPCO Employee. Duke shall reimburse the
Company or a Subsidiary of the Company for the severance benefit paid under the
DEFS Severance Plan to any
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<PAGE> 19
Retained DEFS Employee who receives notice from the Company or a Subsidiary of
the Company on or about the date hereof that such individual's employment will
be terminated in connection with (and in any event within 30 days after) the
closing of the transactions contemplated under the Contribution Agreement. On or
about the date hereof, the Company and its Subsidiaries shall also notify
certain Retained DEFS Employees selected by the Company in its sole discretion
that such individuals will be requested to perform services for the Company or a
Subsidiary of the Company on only a transitional basis. Duke shall reimburse the
Company or a Subsidiary of the Company for the severance benefit paid under the
DEFS Severance Plan to any Retained DEFS Employee who receives the notice
described in the preceding sentence provided that the termination of such
individual's employment from the Company and its Affiliates occurs within six
months of the date hereof (or within nine months of the date hereof in the case
of such a Retained DEFS Employee who is an accountant).
Section 7.6 Miscellaneous. The reference in Section 2.3 of Annex A to
the Contribution Agreement to Section 6.1 of the Governance Agreement shall be
deemed to refer to Section 6.1 of the Governance Agreement as in effect
immediately before the termination of the Governance Agreement. All references
in Sections 3.1, 4.1, 4.5(a), 4.5(b)(i)(A), 4.5(b)(ii)(I), 4.5(b)(iii)(x) and
the last sentence of Section 4.5(b) of Annex A to the Contribution Agreement to
the "Closing Date" shall be deemed to refer to the day after the Closing Date.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties hereto and delivered (including by facsimile) to the other
parties.
Section 8.2 Governing Law; Jurisdiction and Forum; Waiver of Jury
Trial. (a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without reference to the choice of law
principles thereof.
(b) Each party hereto irrevocably submits to the jurisdiction of any
Delaware state court or any federal court sitting in the State of Delaware in
any action arising out of or relating to this Agreement, and hereby irrevocably
agrees that all claims in respect of such action may be heard and determined in
such Delaware state or federal court. Each party hereto hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. The parties
hereto further agree, to the extent permitted by law, that final and
unappealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and amount of
such judgment.
(c) To the extent that any party hereto has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice,
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<PAGE> 20
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, each party hereto hereby
irrevocably waives such immunity in respect of its obligations with respect to
this Agreement.
(d) Each party hereto waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in respect of any
action, suit or proceeding arising out of or relating to this Agreement. Each
party hereto certifies that it has been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications set forth above in
this Section 8.2.
Section 8.3 Entire Agreement. The parties hereto acknowledge that the
Contribution Agreement, the Confidentiality Agreements dated August 11, 1999 and
August 26, 1999 between Duke and Phillips, the LLC Agreement and this Agreement,
together with the exhibits hereto and the exhibits to such exhibits, including
the Certificate of Incorporation and the Bylaws of the Corporation, have been
executed or adopted as part of the same transaction. This Agreement, together
with the Contribution Agreement and the exhibits hereto and thereto, constitutes
the entire agreement of the parties with respect to the subject matter hereof
and there are no agreements, understandings, representations or warranties
between the parties other than those set forth or referred to herein. This
Agreement is not intended to confer upon any person not a party hereto (and
their successors and assigns) any rights, remedies or obligations hereunder.
Section 8.4 Expenses. Except as set forth in this Agreement, whether
or not the transactions contemplated by this Agreement or the Contribution
Agreement are consummated, all legal and other costs and expenses incurred in
connection with this Agreement and the Contribution Agreement and the
transactions contemplated by this Agreement and the Contribution Agreement shall
be paid by the party incurring such costs and expenses; provided, however, that
third party costs incurred by each party after December 16, 1999 for planning
and information purposes relating to the transactions contemplated by this
Agreement and the Contribution Agreement (including costs of consultants and
contractors hired for such purposes, prepayments for services required by the
Company, rating agency fees and outside attorneys' fees for Hart-Scott-Rodino
and regulatory matters, but excluding wages and expenses of employees of Duke or
Phillips, costs incurred in performing due diligence on Duke or Phillips, as
applicable) shall be paid or reimbursed by the Company or the Corporation, as
applicable.
Section 8.5 Notices. All notices and other communications to be given
to any party hereunder shall be sufficiently given for all purposes hereunder if
in writing and delivered by hand, courier or overnight delivery service or three
days after being mailed by certified or registered mail, return receipt
requested, with appropriate postage prepaid, or when received in the form of a
telegram or facsimile and shall be directed, if to a party hereunder, to the
address or facsimile number set forth below (or at such other address or
facsimile number as such party shall designate by like notice):
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<PAGE> 21
(a) If to Phillips:
Phillips Petroleum Company
1266 Adams Building
Bartlesville, Oklahoma 74004
Attention: Clyde W. Lea
Fax No.: (918) 662-2301
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Andrew R. Brownstein, Esq.
Fax No.: (212) 403-2000
(b) If to Duke:
Duke Energy Corporation
5400 Westheimer Court, 8th Floor
Houston, Texas 77056-5310
Attention: Richard K. McGee
Fax No.: (713) 569-2491
With a copy to:
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2300
Houston, Texas 77002-6760
Attention: Bruce R. Bilger
Fax No.: (713) 615-5429
(c) If to the Company:
Duke Energy Field Services, LLC
17th Street, Suite 900
Denver, Colorado 80202
Attention: Martha B. Wyrsch
Fax No.: (303) 605-1605
With a copy to:
Duke Energy Corporation
5400 Westheimer Court, 8th Floor
Houston, Texas 77056-5310
Attention: Richard K. McGee
Fax No.: (713) 569-2491
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<PAGE> 22
and
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2300
Houston, Texas 77002-6760
Attention: Bruce R. Bilger
Fax No.: (713) 615-5429
Section 8.6 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided, however, that no party hereto will
assign its rights or delegate any or all of its obligations under this Agreement
without the express prior written consent of each other party hereto.
Section 8.7 Headings; Definitions. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement.
Section 8.8 Amendments and Waivers. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by all
parties hereto. Either party hereto may, only by an instrument in writing, waive
compliance by the other party hereto with any term or provision of this
Agreement on the part of such other party hereto to be performed or complied
with. The waiver by any party hereto of a breach of any term or provision of
this Agreement shall not be construed as a waiver of any subsequent breach.
Except as otherwise expressly provided herein, no failure to exercise, delay in
exercising or single or partial exercise of any right, power or remedy by any
party, and no course of dealing between the parties, shall constitute a waiver
of any such right, power or remedy.
Section 8.9 Severability. If any provision of this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality or enforceability
of the other provisions of this Agreement shall not be affected thereby, and
there shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
Section 8.10 Interpretation. In the event an ambiguity or question of
intent or interpretation arises with respect to this Agreement, this Agreement
shall be construed as if it were drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
Section 8.11 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any party fails to consummate
the transactions contemplated by this Agreement in accordance with the terms of
this Agreement and that the parties shall be entitled to specific performance in
such event, in addition to any other remedy at law or in equity, including
temporary restraining orders or temporary or permanent injunctions.
Section 8.12 Actions by Affiliates of Phillips and Duke. In addition
to, and not in limitation of, any other provisions of this Agreement, each of
Phillips and Duke shall ensure that each of their respective Affiliates (other
than the Company and the Corporation) takes all actions necessary to be taken by
such Affiliate in order to fulfill the obligations of Phillips or Duke, as the
case may be, under this Agreement.
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<PAGE> 23
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered on the date first set forth above.
PHILLIPS PETROLEUM COMPANY
By: /s/ John A. Carrig
--------------------------------------------
Name: John A. Carrig
Title: Vice President and Treasurer
DUKE ENERGY CORPORATION
By: /s/ Fred J. Fowler
--------------------------------------------
Name: Fred J. Fowler
Title: Group President - Energy Transmission
DUKE ENERGY FIELD SERVICES, LLC
By: /s/ J. W. Mogg
--------------------------------------------
Name: J. W. Mogg
Title: Chairman, President & CEO
DUKE ENERGY FIELD SERVICES
CORPORATION (solely for purposes of Section
4.3(c) of this Agreement)
By: /s/ J. W. Mogg
--------------------------------------------
Name: J. W. Mogg
Title: Chairman, President & CEO
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<PAGE> 1
EXHIBIT 10.11
CONTRACT FOR
Services between
W.W. Slaughter & Duke Energy Field Services Assets, LLC
This contract (hereinafter "Contract") is by and between William W.
Slaughter (hereinafter "Contractor") and Duke Energy Field Services Assets, LLC
(hereinafter ("DEFS Assets"), a Delaware Limited Liability Company, a subsidiary
of Duke Energy Field Services Corporation ("Parent Company").
W I T N E S S E T H:
- -------------------
That the parties herein, in consideration of the covenants and premises set
forth in this Contract, agree as follows:
1. Purpose and Scope
DEFS Assets hereby retains Contractor to perform consulting services
with regard to DEFS Assets' interests and businesses and such other
consulting services as may be mutually agreed in writing.
2. Term
a. This Contract shall commence on April 1, 2000 and shall terminate
on June 30, 2002, unless extended by written agreement of the
parties.
b. In the event of Contractor's inability to perform his obligations
under this Contract to the satisfaction of DEFS Assets due to
Contractor's extended illness or death, DEFS Assets may terminate
this Contract upon giving thirty (30) days' written notice to
Contractor or his legal representative.
c. Should Contractor knowingly fail to follow the policies and
practices of DEFS Assets in the performance of duties under this
Contract, DEFS Assets shall provide Contractor with thirty (30)
days' written notice of such failure. Upon receipt of such
written notice under this paragraph 2.c., Contractor shall have
thirty (30) days to cure such failure and provide DEFS Assets
with written notification of such cure. If Contractor fails to
provide DEFS Assets with such written notification within such
thirty (30)-day period, or such written notification is not
satisfactory to DEFS Assets, DEFS Assets shall have the right to
terminate this Contract upon thirty (30) days' written notice to
Contractor.
<PAGE> 2
3. Reporting
Contractor shall report directly to J.W. Mogg or any other person of
equal or greater responsibility designated by DEFS Assets.
4. Independent Contractor Status
Contractor shall be an independent contractor and the remuneration
paid hereunder shall not affect any employee or retirement benefits to
which he may be entitled by virtue of his past employment by Parent
Company subsidiary or affiliate.
5. Compensation
a. DEFS Assets shall pay Contractor a retainer of Forty-Six Thousand
Eight Hundred Sixty and No/100 Dollars ($46,860) per calendar
quarter for each quarter, or any part thereof, in which this
Contract is in effect.
b. In exchange for the compensation specified in paragraph 5(a) of
this Contract, Contractor shall perform services for DEFS Assets
for as many as thirty (30) calendar days per calendar quarter. In
the event contractor performs services on more than such 30
calendar days, DEFS Assets shall, upon receipt of an invoice as
described in paragraph 7 of this Contract, compensate Contractor
for such additional calendar days worked at the rate of $1,562.00
per day.
c. Parent Company shall, upon completion of its IPO, compensate
contractor in an amount equal to $360,000 through the issuance of
options and/or restricted stock of the Parent Company.
6. Expense
Upon receipt of proper documentation and subject to the prior approval
of J.W. Mogg, DEFS Assets shall reimburse Contractor for any
reasonable expenses incurred in connection with services performed
under this Contract; provided, however, that such reasonable expenses
shall not include the cost of commuting to and from home in order to
perform work under this Contract. Contractor shall be reimbursed for
car expense at the standard mileage rate set by the United States
Internal Revenue Service. Contractor hereby warrants that he has the
legally required insurance on any motor vehicle that he would use in
the performance of duties under this Contract.
<PAGE> 3
7. Invoices
Within a reasonable time after the last day of the calendar quarter,
Contractor shall submit an invoice to DEFS Assets setting forth the
number of calendar days worked in excess of 30 as described in
paragraph 5.b of this agreement, the services performed, and eligible
expenses incurred as defined in paragraph 6.
8. Prioritization of Work
It is understood that Contractor is free to render consulting services
to others so long as such activity does not conflict with the interest
of DEFS Assets or any of its subsidiaries or affiliates. To the extent
practicable, however, Contractor agrees to give first priority to the
performance of services for DEFS Assets and Parent Company under the
terms of this contract.
9. Confidentiality
Contractor agrees to maintain the confidentiality of all confidential
information received by Contractor in the performance of services
under this Contract during the term of this Contract and for a period
of five (5) years after the termination of this Contract and any
extension thereof. Contractor further agrees to return to DEFS Assets
any and all information received by Contractor in performing services
under this Contract at the termination of this Contract or when
requested to do so by DEFS Assets.
10. Assignment
None of the rights or obligations of this Contract may be assigned
without the prior written consent of the assigning party.
IN WITNESS WHEREOF, this AGREEMENT executed this 1st day of
April, 2000.
Duke Energy Field Services Assets, LLC
By: /s/ J. W. Mogg
------------------------------------
J.W. Mogg
By: /s/ William W. Slaughter
------------------------------------
William W. Slaughter, Contractor
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated March 6, 2000, with respect to the financial
statements of Phillips Gas Company included in Amendment No. 2 to the
Registration Statement (Form S-1 No. 333-32502), and related Prospectus of Duke
Energy Field Services Corporation for the registration of its common stock.
/s/ ERNST & YOUNG LLP
Tulsa, Oklahoma
May 2, 2000
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report on the combined statements of income and cash flows of the UP Fuels
Division of Union Pacific Resources Group Inc. for the three-month period ended
March 31, 1999 and the year ended December 31, 1998 (and to all references to
our Firm) included in or made a part of this Registration Statement (No.
333-32502).
/s/ ARTHUR ANDERSEN LLP
Fort Worth, Texas
May 2, 2000
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 2 to Registration Statement No.
333-32502 of Duke Energy Field Services Corporation of our report dated February
18, 2000, appearing in the Prospectus, which is a part of such Registration
Statement, and to the reference to us under the heading "Experts" in such
Prospectus.
/s/ DELOITTE & TOUCHE LLP
Denver, Colorado
May 2, 2000
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Amendment No. 2 to Registration Statement No.
333-32502 of Duke Energy Field Services Corporation of our report dated June 12,
1998, appearing in the Prospectus, which is a part of such Registration
Statement, and to the reference to us under the heading "Experts" in such
Prospectus.
/s/ DELOITTE & TOUCHE LLP
Fort Worth, Texas
May 2, 2000
<TABLE> <S> <C>
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<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS YEAR
<FISCAL-YEAR-END> DEC-31-2000 DEC-31-1999
<PERIOD-START> JAN-01-2000 JAN-01-1999
<PERIOD-END> MAR-31-2000 DEC-31-1999
<CASH> 172 792
<SECURITIES> 0 0
<RECEIVABLES> 583,310 440,809
<ALLOWANCES> 7,384 6,743
<INVENTORY> 26,877 38,701
<CURRENT-ASSETS> 738,776 518,256
<PP&E> 5,247,704 3,005,510
<DEPRECIATION> 628,535 596,125
<TOTAL-ASSETS> 6,312,292 3,471,835
<CURRENT-LIABILITIES> 3,462,686 2,640,585
<BONDS> 0 0
0 0
0 0
<COMMON> 1 1
<OTHER-SE> 1,315,184 386,470
<TOTAL-LIABILITY-AND-EQUITY> 6,312,292 3,471,835
<SALES> 1,415,465 3,310,260
<TOTAL-REVENUES> 1,451,211 3,458,310
<CGS> 1,278,511 2,965,297
<TOTAL-COSTS> 1,327,550 3,146,689
<OTHER-EXPENSES> 37,899 130,788
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 14,477 52,915
<INCOME-PRETAX> 44,204 74,358
<INCOME-TAX> 17,352 31,029
<INCOME-CONTINUING> 26,852 43,329
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 26,852 43,329
<EPS-BASIC> 0.00 0.00
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<PAGE> 1
EXHIBIT 99.3
CONSENT
The undersigned hereby consents to being named in the Registration
Statement on Form S-1 (the "Registration Statement") of Duke Energy Field
Services Corporation ("DEFS") Registration No. 333-32502, originally filed with
the Securities and Exchange Commission on March 15, 2000, as a director to be
appointed after the consummation of the initial public offering (the "IPO") of
DEFS. The undersigned further consents to serve as a director of DEFS following
the consummation of the IPO.
IN WITNESS WHEREOF, the undersigned as executed this Consent effective
as of the 1st day of May, 2000.
/s/ Milton Carroll
---------------------
Name: Milton Carroll
<PAGE> 1
EXHIBIT 99.4
CONSENT
The undersigned hereby consents to being named in the Registration
Statement on Form S-1 (the "Registration Statement") of Duke Energy Field
Services Corporation ("DEFS") Registration No. 333-32502, originally filed with
the Securities and Exchange Commission on March 15, 2000, as a director to be
appointed after the consummation of the initial public offering (the "IPO") of
DEFS. The undersigned further consents to serve as a director of DEFS following
the consummation of the IPO.
IN WITNESS WHEREOF, the undersigned as executed this Consent effective
as of the 1st day of May, 2000.
/s/ William H. Grigg
----------------------
Name: William H. Grigg
<PAGE> 1
EXHIBIT 99.5
CONSENT
The undersigned hereby consents to being named in the Registration
Statement on Form S-1 (the "Registration Statement") of Duke Energy Field
Services Corporation ("DEFS") Registration No. 333-32502, originally filed with
the Securities and Exchange Commission on March 15, 2000, as a director to be
appointed after the consummation of the initial public offering (the "IPO") of
DEFS. The undersigned further consents to serve as a director of DEFS following
the consummation of the IPO.
IN WITNESS WHEREOF, the undersigned as executed this Consent effective
as of the 1st day of May, 2000.
/s/ John E. Lowe
---------------------
Name: John E. Lowe
<PAGE> 1
EXHIBIT 99.6
CONSENT
The undersigned hereby consents to being named in the Registration
Statement on Form S-1 (the "Registration Statement") of Duke Energy Field
Services Corporation ("DEFS") Registration No. 333-32502, originally filed with
the Securities and Exchange Commission on March 15, 2000, as a director to be
appointed after the consummation of the initial public offering (the "IPO") of
DEFS. The undersigned further consents to serve as a director of DEFS following
the consummation of the IPO.
IN WITNESS WHEREOF, the undersigned as executed this Consent effective
as of the 1st day of May, 2000.
/s/ Wayne W. Murdy
---------------------
Name: Wayne W. Murdy
<PAGE> 1
EXHIBIT 99.7
CONSENT
The undersigned hereby consents to being named in the Registration
Statement on Form S-1 (the "Registration Statement") of Duke Energy Field
Services Corporation ("DEFS") Registration No. 333-32502, originally filed with
the Securities and Exchange Commission on March 15, 2000, as a director to be
appointed after the consummation of the initial public offering (the "IPO") of
DEFS. The undersigned further consents to serve as a director of DEFS following
the consummation of the IPO.
IN WITNESS WHEREOF, the undersigned as executed this Consent effective
as of the 1st day of May, 2000.
/s/ Ruth G. Shaw
---------------------
Name: Ruth G. Shaw
<PAGE> 1
EXHIBIT 99.8
CONSENT
The undersigned hereby consents to being named in the Registration
Statement on Form S-1 (the "Registration Statement") of Duke Energy Field
Services Corporation ("DEFS") Registration No. 333-32502, originally filed with
the Securities and Exchange Commission on March 15, 2000, as a director to be
appointed after the consummation of the initial public offering (the "IPO") of
DEFS. The undersigned further consents to serve as a director of DEFS following
the consummation of the IPO.
IN WITNESS WHEREOF, the undersigned as executed this Consent effective
as of the 1st day of May, 2000.
/s/ C.J. Pete Silas
---------------------
Name: C.J. Pete Silas
