AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 3, 1999.
REGISTRATION NO. 333-70371
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
MIDCOAST ENERGY RESOURCES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 76-0378638
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1100 LOUISIANA, SUITE 2950
HOUSTON, TEXAS 77002
PHONE: (713) 650-8900
FAX: (713) 650-3232
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
See "Table of Additional Registrants" on the following page for information
relating to the subsidiaries of Midcoast Energy Resources, Inc. that may
guarantee payments owed on the Debt Securities registered hereunder.
DAN C. TUTCHER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MIDCOAST ENERGY RESOURCES, INC.
1100 LOUISIANA, SUITE 2950
HOUSTON, TEXAS 77002
PHONE: (713) 650-8900
FAX: (713) 650-3232
(Name, address, including zip code and telephone number, including area code, of
agent for service)
------------------------
COPIES TO:
ROBERT G. REEDY
PORTER & HEDGES, L.L.P.
700 LOUISIANA STREET, 35TH FLOOR
HOUSTON, TEXAS 77002-2764
PHONE: (713) 226-0600
FAX: (713) 228-1331
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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, 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,
please check the following box. [ ]
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED(1)(2) AGGREGATE OFFERING PRICE(3)(4) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities......................
- -----------------------------------------------------------------------------------------------------
Preferred Stock, par value $.001 per
share................................
- -----------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per
share................................
- -----------------------------------------------------------------------------------------------------
Warrants.............................
- -----------------------------------------------------------------------------------------------------
Guarantees(5)........................
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Total........................ $200,000,000(6)(7) $55,600
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</TABLE>
(1) Includes such indeterminate number of shares of securities as may be issued
upon conversion or exchange of any Preferred Stock or debt securities that
provide for conversion or exchange into other securities.
(2) Certain information as to each class or series of securities to be
registered is not specified in accordance with General Instruction II.D. to
Form S-3 under the Securities Act of 1933, as amended.
(3) If any debt securities are issued with original issue discount, such greater
amount shall result in an aggregate public offering price of $200,000,000,
in U.S. dollars or equivalent thereof in foreign currency or currency units.
In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$200,000,000, or the equivalent thereof in foreign currencies or currency
units.
(4) The proposed maximum aggregate offering price will be determined from time
to time by the registrant in connection with, and at the time of, the
issuance by the registrant of the securities registered hereunder. Estimated
solely for the purpose of computing the registration fee pursuant to Rule
457(o).
(5) Guarantees that may be provided by the subsidiaries named in the "Table of
Additional Registrants" on the following page, with respect to the Debt
Securities registered hereunder. No additional consideration will be
received for such guarantees. Pursuant to Rule 457(n) under the Securities
Act of 1933, as amended, no additional filing fee is required in connection
with such guarantees.
(6) Represents the aggregate (i) issue price of any debt securities issued with
original issue discount, (ii) aggregate principal amount of all other debt
securities, (iii) the aggregate liquidation preference of any Preferred
Stock, (iv) the aggregate issue price of any Warrants and the aggregate
exercise price of any securities issuable upon exercise of the Warrants, and
(v) amount used when computing the registration fee pursuant to Rule 457(o)
for Common Stock.
(7) No separate consideration will be received for any securities issuable upon
conversion or exchange of Preferred Stock or debt securities registered
hereunder.
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.
================================================================================
<PAGE>
TABLE OF ADDITIONAL REGISTRANTS
UNDER REGISTRATION STATEMENT ON FORM S-3
The following subsidiaries of Midcoast Energy Resources, Inc. are
co-registrants under this Registration Statement for the purpose of providing
guarantees, if any, of payments on Debt Securities registered hereunder:
JURISDICTION OF I.R.S. EMPLOYER
NAME INCORPORATION IDENTIFICATION NO.
- ------------------------------------- ----------------- ------------------
Magnolia Resources, Inc.............. Mississippi 64-0883884
Magnolia Gathering, Inc.............. Alabama 72-1347862
Magnolia Pipeline Corporation........ Alabama 63-1010510
Midcoast Holdings No. One, Inc....... Delaware 76-0410558
Midcoast Marketing, Inc.............. Texas 76-0332574
Midcoast Interstate Transmission,
Inc................................ Alabama 63-0272062
Tennessee River Intrastate Gas
Company, Inc....................... Alabama 63-0935012
Mid Louisiana Gas Transmission
Company............................ Delaware 84-1074614
Mid Louisiana Gas Company............ Texas 72-0460300
Midcoast Gas Pipeline, Inc........... Texas 76-0523886
Midcoast Gas Services, Inc........... Delaware 76-0578910
Creole Gas Pipeline Corporation...... Louisiana 72-0567819
<PAGE>
Subject to completion, dated February 3, 1999.
The information in this prospectus is not complete and may be changed. We
may not offer 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 an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS
[LOGO]
$200,000,000
MIDCOAST ENERGY RESOURCES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST, ON DEBT SECURITIES UNCONDITIONALLY GUARANTEED
BY MIDCOAST ENERGY RESOURCES, INC. AND SUBSIDIARY REGISTRANTS
- --------------------------------------------------------------------------------
You should read this prospectus and any supplement carefully before you
invest. This prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement.
The common stock offered in this prospectus may, subject to certain
conditions, also be offered and sold from time to time pursuant to this
prospectus by Selling Security Holders (as defined later). See "Selling
Security Holders" and "Plan of Distribution" for information about the sales
of common stock pursuant to this prospectus by Selling Security Holders.
Our common stock is listed and traded on the American Stock Exchange under
the symbol "MRS."
- --------------------------------------------------------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved nor disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
THIS PROSPECTUS IS DATED ______________, 1999.
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED
ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN
OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE
DOCUMENTS.
TABLE OF CONTENTS
SECTION PAGES
- ------------------------------------- ----
About This Prospectus................ 2
Where You Can Find More
Information.......................... 2
Incorporation Of Certain Documents By
Reference.......................... 3
Summary.............................. 4
Forward-Looking Statements........... 4
Use of Proceeds...................... 5
Ratio of Earnings to Fixed Charges
and Earnings to Fixed Charges and
Preferred Stock Dividends.......... 5
Description of Debt Securities....... 5
Description of Capital Stock......... 11
Description of Warrants.............. 13
Selling Security Holders............. 15
Plan of Distribution................. 15
Legal Matters........................ 17
Experts.............................. 17
ABOUT THIS PROSPECTUS
Midcoast Energy Resources, Inc. (the "Company," "we," "us," and
"our") may offer from time to time any combination of the securities described
in this prospectus. The aggregate initial offering price of the securities that
we will offer will not exceed $200,000,000. We will offer the securities in
amounts, at prices and on terms to be determined by market conditions at the
time of our offering. This prospectus also may be used for resales of the
securities issued under this prospectus. See "Use of Proceeds."
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a shelf registration process. This
means:
o over the next two years, we may issue the debt securities, preferred stock,
common stock and warrants covered by this prospectus;
o this prospectus provides a general description of the securities we may
offer;
o we will provide a prospectus supplement each time we issue the securities;
o the prospectus supplement will provide specific information about the terms
of that offering and also may add, update or change information contained
in this prospectus.
You should read both this prospectus and any prospectus supplement together
with additional information described under the heading "Where You Can Find
More Information."
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the "SEC") a
registration statement on Form S-3 under the Securities Act of 1933, as amended
("Securities Act"), with respect to the securities we are offering. This
prospectus does not contain all the information contained in the registration
statement, such as its exhibits and schedules. You should refer to the
registration
2
<PAGE>
statement, including the exhibits and schedules, for further information about
us and the securities we are offering. Statements we make in this prospectus
about certain contracts or other documents are not necessarily complete. When we
make such statements, we refer you to the copies of the contracts or documents
that are filed as exhibits to the registration statement because those
statements are qualified in all respects by reference to those exhibits. The
registration statement, including exhibits and schedules, is on file at the
offices of the SEC and may be inspected without charge.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings, including the registration statement,
are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. We invite you to visit our web site at
http://www.midcoastenergy.com. You also may read and copy any document we file
at the SECs public reference rooms in Washington, D.C.; New York, New York; and
Chicago, Illinois. The Public Reference Room in Washington, D.C. is located at
450 Fifth Street, N.W. Please call the SEC at 1-800-SEC-0330 for further
information about the public reference rooms.
We also provide information to the AMEX because our common stock is traded
on the AMEX. You may obtain reports and other information at the offices of the
AMEX at 68 Trinity Place, New York, New York 10006-1881.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
SEC rules allow us to include some of the information required to be in the
registration statement by incorporating that information by reference to
documents we file with the SEC. That means we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus. Furthermore, information that
we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below, including
any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934, as amended ("Exchange Act"), until we
sell all of the securities covered by this prospectus:
o Current Reports on Form 8-K, filed on October 21, 1996 and Form 8-K/A
filed on November 13, 1996;
o Prospectus, filed June 27, 1997, pursuant to Rule 424(b) of the
Securities Act;
o Current Reports on Form 8-K, filed on November 13, 1997 and Form 8-K/A
filed on January 12, 1998;
o Annual Report on Form 10-K for the year ended December 31, 1997, Form
10-K/A-1 filed on February 1, 1999 and Form 10-K/A-2 filed on
February 2, 1999;
o Proxy Statement on Schedule 14A, filed on April 16, 1998;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
o Quarterly Report on Form 10-Q for the quarter ended June 30, 1998;
o Quarterly Report on Form 10-Q for the quarter ended September 30, 1998
and Form 10-Q/A filed on January 7, 1999;
o Current Reports on Form 8-K, filed on September 22, 1998 and Form
8-K/A filed on November 20, 1998; and
o The description of the Company's common stock contained in Form 8-A,
filed on July 24, 1996, including any amendments or reports that have
been filed to update the description.
We will provide, without charge, to each person to whom a copy of this
prospectus has been delivered, including any beneficial owner, a copy of any of
these filings, by writing or telephoning us at the following address:
Midcoast Energy Resources, Inc.
1100 Louisiana, Suite 2950
Houston, Texas 77002
(713) 650-8900
Attention: Duane S. Herbst, Corporate Secretary
3
<PAGE>
SUMMARY
THE COMPANY
The Company transports, gathers, processes and markets natural gas and
other petroleum products through 57 company-owned interstate and intrastate
pipelines. These pipelines include 5 transmission pipeline systems, 22 end-user
pipeline systems and 30 gathering systems covering approximately 2,300 miles in
nine states with an aggregate throughput capacity of over 1.9 Bcf/day. We are a
Houston-based pipeline company with regional offices in Texas, Alabama,
Louisiana and Mississippi.
We provide transportation services through our pipelines to end-users,
natural gas producers and other pipeline companies. We also offer natural gas
marketing and processing services to these same customers. In addition, we
acquire or construct pipelines to supply natural gas to industrial and municipal
end-users and gather natural gas at the wellhead for natural gas producers.
BUSINESS STRATEGY
Our principal business strategy is to increase our earnings and cash flow
by acquiring pipeline systems in targeted growth areas, by enhancing the
profitability of our existing systems through increased utilization and by
improving cost efficiencies.
We implement our strategy through the following steps:
o Acquire pipeline and processing systems in areas where demand for
natural gas transportation services is growing;
o Aggressively market and expand existing pipelines and processing
systems to increase their utilization;
o Maximize operating efficiencies by focusing on reducing costs.
o Pursue direct sales to industrial plants and municipality end-users
who seek alternative supplies to meet their energy needs; and
o Construct pipelines where opportunity arises.
Our principal executive offices are located at 1100 Louisiana, Suite 2950,
Houston, Texas 77002, and our telephone number is (713) 650-8900.
FORWARD-LOOKING STATEMENTS
The statements we make in this prospectus, in any prospectus supplement, or
in the documents we have incorporated by reference that are not statements of
historical fact, may be "forward looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act.
Forward-looking statements generally can be identified by the use of
forward-looking terminology such as "may," "will," "expect," "intend,"
"estimate," "anticipate" or "believe," or similar terminology. The
forward-looking statements may include discussions about business strategy and
expectations concerning market position, future operations, margins,
profitability, liquidity and capital resources, and statements concerning the
integration into our business of the operations we have acquired. Although we
believe that the expectations in such statements are or will be reasonable, we
cannot give any assurance that those expectations will be correct. We caution
you not to place undue reliance on these forward-looking statements, which speak
only as of the date of this prospectus or any prospectus supplement. Our
operations are subject to several uncertainties, risks and other influences,
many of which are outside our control and any of which could materially affect
our results of operations and ultimately prove the statements we make to be
inaccurate. We discuss important factors that could cause actual results to
differ materially from our expectations elsewhere in this prospectus or in any
prospectus supplement.
4
<PAGE>
USE OF PROCEEDS
Except as otherwise described in any prospectus supplement, we will use the
net proceeds from the sale of securities for general corporate purposes, which
may include refinancings of indebtedness, working capital, capital expenditures,
acquisitions and repurchases of securities. Specific information concerning the
use of proceeds from any sale of securities will be included in the prospectus
supplement relating to such securities.
RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of our earnings to our fixed charges and earnings to fixed
charges and preferred stock dividends for each of the fiscal years indicated and
for the nine-months ended September 30, 1998 are as follows:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------- -----------------------------------------------------
1998 1997 1996 1995 1994 1993
----------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges...... 4.25 5.99 5.35 7.16 1.72 5.24
Ratio of earnings to fixed charges and
preferred stock dividends............. 4.25 5.99 5.08 6.14 1.33 4.01
</TABLE>
For these ratios, earnings consist of income before income taxes and fixed
charges. Fixed charges consist of interest expense, including amounts
capitalized, that portion of rent expense which management deems to be
attributable to interest costs and amortization of debt expense.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be the general unsecured obligation of the
Company. The following description of the Company's unsecured debt securities
will be of either senior notes and debentures ("Senior Debt Securities") or
subordinated note and debentures ("Subordinated Debt Securities") to be issued
under one or more separate indentures, in each case between the Company, the
Subsidiary Guarantors (as defined later) and the Trustee, and in substantially
the form that has been filed as an exhibit to the registration statement of
which this prospectus is a part, subject to such amendments or supplements as
may be adopted from time to time. We will issue Senior Debt Securities under a
Senior Indenture and Subordinated Debt Securities under a Subordinated
Indenture. We refer to the Senior Indenture and the Subordinated Indenture below
singularly as the Indenture or collectively as the Indentures. We refer to the
Senior Trustee and the Subordinated Trustee below individually as a Trustee and
collectively as the Trustees.
We have summarized selected provisions of the Indentures below. The summary
is not complete. The particular terms of the debt securities we might offer and
the extent to which these general provisions apply will be described in a
prospectus supplement relating to the offered debt securities. We have included
the forms of the Indentures under which the offered debt securities will be
issued as exhibits to the registration statement, and you should read the
Indentures for provisions that may be important to you.
GENERAL
The payment obligations of the Company under any debt securities may, if
specified in any prospectus supplement, be fully and unconditionally guaranteed
by one or more of the following subsidiaries of the Company: Magnolia Resources,
Inc., Magnolia Gathering, Inc., Magnolia Pipeline Corporation, Midcoast Holdings
No. One, Inc., Midcoast Marketing, Inc., Midcoast Interstate Transmission, Inc.,
Tennessee River Intrastate Gas Company, Inc., Mid Louisiana Gas Transmission
Company, Mid Louisiana Gas Company, Midcoast Gas Pipeline, Inc., Midcoast Gas
Services, Inc., and Creole Gas Pipeline Corporation (the "Subsidiary
Guarantors"). If any series of debt securities is guaranteed by a Subsidiary
Guarantor (a "Subsidiary Guarantee"), the applicable prospectus
5
<PAGE>
supplement will identify each Subsidiary Guarantor and describe such Subsidiary
Guarantee, including the circumstances in which it may be released. Any
guarantee of debt securities by a Subsidiary Guarantor will be on a full and
unconditional basis.
Except as may be described in any prospectus supplement, the Indentures do
not limit the aggregate principal amount of debt securities that can be issued
thereunder. Debt securities may be issued in one or more series, each in an
aggregate principal amount authorized by the Company before issuance, and may be
in any currency or currency unit that we may designate. We may issue debt
securities of a series in registered or global form. The rights of holders of
debt securities will be limited to the assets of the Company and the debt
securities will not be obligations of any of the Company's subsidiaries, except
in the case of any debt securities that are guaranteed by such subsidiaries.
Except as may be described in any prospectus supplement, the Indentures do not
limit the ability of the Company's subsidiaries to incur such restrictions in
the future. The right of the Company to participate in the assets of any
subsidiary (and thus the ability of holders of the debt securities to benefit
indirectly from such assets) is generally subject to the prior claims of
creditors, including trade creditors, of that subsidiary, except to the extent
that the Company is recognized as a creditor of such subsidiary, in which case
the Company's claims would still be subject to any security interest of other
creditors of such subsidiary. Unless the debt securities are guaranteed by the
Company's subsidiaries, the debt securities will be structurally subordinated to
creditors, including trade creditors, of subsidiaries of the Company with
respect to the assets of the subsidiaries against which such creditors have a
more direct claim. The Senior Debt Securities will rank equally with all of our
other senior debt. The Subordinated Debt Securities will have a junior position
to all of our senior debt.
Other than as may be described in a prospectus supplement, neither
Indenture will contain any covenant or provision that affords debt holders
protection in the event of a highly leveraged transaction by the Company. These
same holders would not have any right to require the Company to repurchase the
debt securities, in the event that the credit rating of any debt securities
declined as a result of the Company's involvement in a takeover,
recapitalization, similar restructuring or otherwise.
A prospectus supplement including the Indentures, filed as an exhibit,
relating to any series of debt securities being offered by the Company will
include specific terms relating to the offering. These terms will include some
or all of the following:
o the title and type of debt securities being offered, which may
include medium term notes;
o the total principal amount of debt securities being offered;
o whether the debt securities will be issued in one or more form of
global securities and whether such global securities are to be
issuable in temporary global form or permanent global form;
o whether the debt securities will be guaranteed by any of the
subsidiaries of the Company;
o the dates on which the principal of, and premium, if any, on the
offered debt securities is payable;
o the interest rate or the method of determining the interest rate;
o the date from which interest will accrue;
o the interest payment dates;
o the place where the principal, premium and interest is payable;
o any optional redemption periods;
o any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
o whether the debt securities will be convertible into shares of
common stock or exchangeable for other of our securities, and if
so, the terms of conversion or exchange;
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<PAGE>
o the currency or currencies, if other than U.S. dollars, in which
principal payments or other payments will be payable;
o events causing acceleration of maturity;
o any provisions granting special rights to holders when the
specified event occurs;
o any changes to or additional events of default or covenants;
o any material tax consequences and special tax implications of
ownership and disposition of the debt securities; and
o any other terms of the debt securities.
The debt securities will be issued in registered form. There will be no
service charge for any registration, transfer or exchange of debt securities. We
may, however, require payment of an amount that would be sufficient to cover any
tax or other governmental charge we may incur.
We may sell the debt securities at a discount (which may be substantial)
below their stated principal amount, either bearing no interest or bearing
interest at a rate that may be below the market rate at the time we issue the
debt securities. We will describe any material tax consequences and other
special considerations applicable to discounted debt securities in the
prospectus supplement.
If we sell any of the offered debt securities for any foreign currency or
currency unit, or if any of the principal, premium or interest, if any, is
payable on any of the offered debt securities, the restrictions, elections, tax
consequences, specific terms and other information pertaining to the offered
debt securities and such foreign currency or foreign currency unit will be set
forth in the prospectus supplement describing such offered debt securities.
DENOMINATIONS
We will issue the debt securities in registered form of $1,000 each or
multiples thereof or an equivalent value if the securities are issued in a
foreign currency.
SUBORDINATION
Under the Subordinated Indenture, payment of the principal, interest and
any premium on the Subordinated Debt Securities generally will be subordinated
and junior in right of payment to the prior payment in full of all Senior
Indebtedness. The Subordinated Indenture provides that no payment of principal,
interest and any premium on the Subordinated Debt Securities may be made in the
event:
o of any insolvency, bankruptcy or similar proceeding involving the
Company or our property;
o we fail to pay the principal, interest, any premium or any other
amounts on any Senior Indebtedness when due;
o of a default (other than a payment default with respect to the Senior
Indebtedness) that imposes a payment blockage on the Subordinated Debt
Securities for a maximum of 179 days at any one time, unless the Event
of Default has been cured or waived or shall no longer exist; or
o the principal and any accrued interest on any series of Subordinated
Debt Securities has been declared due and payable upon an Event of
Default described in the Subordinated Debt Indenture and such
declaration has not been rescinded.
In the event of any bankruptcy, insolvency, reorganization or other similar
proceeding relating to us, whether voluntary or involuntary, all of our
obligations to holders of Senior Indebtedness shall be entitled to be paid in
full before any payment shall be made on account of the principal of, or
premium, if any, or interest, if any, on the Subordinated Debt Securities of any
series.
In the event of any such bankruptcy, insolvency, reorganization or other
similar proceeding, holders of the Subordinated Debt Securities of any series,
together with holders of indebtedness ranking equally with the Subordinated Debt
Securities, shall be entitled, ratably, to be paid amounts
7
<PAGE>
that are due to them, but only from assets remaining after we pay in full the
amounts that we owe on our Senior Indebtedness. We will make these payments
before we make any payment or other distribution on account of any indebtedness
that ranks junior to the Subordinated Debt Securities. However, if we have paid
in full all of the sums that we owe with respect to our Senior Indebtedness and
creditors in respect of our obligations associated with such derivative products
have not received payment in full of amounts due to them, then the available
remaining assets shall be applied to payment in full of those obligations before
any payment is made on the Subordinated Debt Securities.
In the event that we are in default on any of our Senior Indebtedness or in
the event that any such default would occur as a result of certain payments,
then we may not make any payments on the Subordinated Debt Securities or effect
any exchange or retirement of any of the Subordinated Debt Securities unless and
until such default has been cured or waived or otherwise ceases to exist.
No provision contained in the Subordinated Indenture or the Subordinated
Debt Securities affects the obligation of the Company, which is absolute and
unconditional, to pay, when due, principal of, premium, if any, and interest on
and any additional amounts with respect to the Subordinated Debt Securities. The
subordination provisions of the Subordinated Indenture and the Subordinated Debt
Securities do not prevent the occurrence of any default or Event of Default
under the Subordinated Indenture or limit the rights of the Subordinated Trustee
or any holder of Subordinated Debt Securities, subject to the three preceding
paragraphs, to pursue any other rights or remedies with respect to the
Subordinated Debt Securities.
As a result of these subordination provisions, in the event of the
liquidation, bankruptcy, reorganization, insolvency, receivership or similar
proceeding or an assignment for the benefit of our creditors or any of our
subsidiaries or a marshaling of assets or liabilities of the Company and its
subsidiaries, holders of Subordinated Debt Securities may receive ratably less
than other creditors.
If this prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the accompanying prospectus supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
The Subordinated Indenture defines Senior Indebtedness to include all notes
or other unsecured evidences of indebtedness, including guarantees of the
Company for money borrowed by the Company, not expressed to be subordinate or
junior in right of payment to any other indebtedness of the Company and all
extensions of such indebtedness.
EVENTS OF DEFAULT; REMEDIES
The following are Events of Default under each Indenture:
o our failure to pay principal or any premium on any debt security when
due;
o our failure to pay any interest on any debt security when due,
continued for 30 days;
o our failure to deposit any mandatory sinking fund payment when due,
continued for 30 days;
o our failure to perform any other covenant or warranty in the Indenture
that continues for 90 days after written notice;
o certain events of bankruptcy, insolvency or reorganization; and
o any other Event of Default as may be specified with respect to debt
securities of such series.
An Event of Default for a particular series of debt securities does not
necessarily constitute an Event of Default for any other series of debt
securities. The Trustee may withhold notice to the holders of debt securities of
any default (except in the payment of principal or interest) if the Trustee
considers withholding of notice to be in the best interest of the holders.
If an Event of Default occurs, either the Trustee or the holders of at
least 25% of the principal amount of the outstanding debt securities may declare
the principal amount of the debt securities of
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the applicable series to be due and payable immediately. If this happens,
subject to certain conditions, the holders of a majority of the principal amount
of the outstanding debt securities of such series can void the declaration.
These conditions include the requirement that we have paid or deposited with the
Trustee a sum sufficient to pay all overdue principal and interest payments on
the series of debt securities subject to the default. If an Event of Default
occurs due to certain events of bankruptcy, insolvency or reorganization, the
principal amount of the outstanding debt securities of all series will become
immediately due and payable without any declaration or other act on the part of
either Trustee or any holder.
Depending on the terms of our indebtedness, an Event of Default under an
Indenture may cause a cross default on such other indebtedness.
Other than its duties in the case of default, a Trustee is not obligated to
exercise any of its rights or powers under any Indenture at the request, order
or direction of any holder or group of holders unless the holders offer the
Trustee reasonable indemnity. If the holders provide reasonable indemnification,
the holders of a majority of the principal amount of any series of debt
securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any power conferred upon
the Trustee for any series of debt securities.
The holders of a majority of the principal amount outstanding of any series
of debt securities may, on behalf of all holders of such series, waive any past
default under the Indenture, except in the case of a payment of principal or
interest default.
We are required to provide to each Trustee an annual statement of the
Company's performance of our obligations under the Indenture and any statement
of default, if applicable.
COVENANTS
Under the Indentures, we will:
o pay the principal, interest and any premium on the debt securities
when due;
o maintain a place of payment;
o deliver a report to the Trustee at the end of each fiscal year
reviewing the Company's obligations under the Indentures; and
o deposit sufficient funds with any payment agent on or before the due
date for any principal, interest or any premium.
MODIFICATION OR AMENDMENT OF INDENTURES
Under each Indenture, all rights and obligations and the rights of the
holders may be modified or amended with the consent of the holders of a majority
in aggregate principal amount of the outstanding debt securities of each series
affected by the modification or amendment. No modification or amendment may,
however, be made without the consent of the holders of any debt securities if
the following provisions are affected:
o change in the stated maturity date of the principal payment or
installment of any principal payment;
o reduction in the principal amount or premium on, or interest on any of
the debt securities;
o reduction in the percentage required for modifications or amendment to
be effective against any holder of any debt securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture generally permits a consolidation or merger between us and
another corporation. Each Indenture also permits us to sell all or substantially
all of our property and assets. If this happens, the surviving or acquiring
corporation will assume all of our responsibilities and liabilities
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under the Indentures, including the payment of all amounts due on the debt
securities and the performance of the covenants in the Indentures.
We will only consolidate or merge with or into any other company or sell
all, or substantially all, of our assets according to the terms and conditions
of the Indentures. The surviving or acquiring company will be substituted for us
in the Indentures with the same effect as if it had been an original party to
the Indenture. Thereafter, the successor company may exercise our rights and
powers under any Indenture, in our name or in its own name. Any act or
proceeding our board of directors or any of our officers are required or
permitted to do may be done by the board of directors or officers of the
successor company. If we sell all or substantially all of our assets, we shall
be released from all our liabilities and obligations under any Indenture and
under the debt securities.
DISCHARGE AND DEFEASANCE
We will be discharged from our obligations under the debt securities of any
series at any time if we irrevocably deposit with the Trustee enough cash or
government securities to pay the principal, interest, any premium and any other
sums due through the stated maturity date or redemption date of the debt
securities of the series. In this event, the Company will be deemed to have paid
and discharged the entire indebtedness on all outstanding debt securities of the
series. Accordingly, the Company's obligations under the applicable Indenture
and the debt securities of such series to pay any principal, premium, or
interest, if any, shall cease, terminate and be completely discharged. The
holders of any debt securities shall then only be entitled to payment out of the
money or government securities deposited with the Trustee and such holders of
debt securities of such series will not be entitled to the benefits of the
Indenture except as relate to the registration, transfer and exchange of debt
securities and the replacement of lost, stolen or mutilated debt securities.
PAYMENT AND PAYING AGENTS
We will pay the principal, interest and premium on fully registered
securities at designated places. We will pay by check mailed to the person in
whose name the debt securities are registered on the day specified in the
Indentures or any prospectus supplement. We will pay debt securities payments in
other forms at a place we designate and specify in a prospectus supplement.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Fully registered debt securities may be transferred or exchanged at the
corporate trust office of the Trustee or at any other office or agency we
maintain for such purposes without the payment of any service charge except for
any tax or governmental charge. The registered securities must be duly endorsed
or accompanied by a written instrument of transfer, if required by us or the
security registrar. We will describe any procedures for the exchange of debt
securities for other debt securities of the same series in the prospectus
supplement for that offering.
GLOBAL SECURITIES
We may issue the debt securities of a series in whole or in part in the
form of one or more global certificates that will be deposited with a depositary
we identify in a prospectus supplement. We may issue global securities in
registered form and in either temporary or permanent form. Unless and until it
is exchanged in whole or part for the individual Debt Securities it represents,
the depositary or its nominee may not transfer a global security except as a
whole. The depositary for a global security and its nominee may only transfer
the global security between themselves or their successors.
We will make principal, premium and interest payments on global securities
to the depositary or the nominee it designates as the registered owner for such
global securities. The depositary or its nominee will be responsible for making
payments to you and other holders of interests in the global securities. We and
the paying agents will treat the persons in whose names the global securities
are registered as the owners of such global securities for all purposes. Neither
we nor the paying agents have any direct responsibility or liability for the
payment of principal, premium or interest to owners of beneficial interests in
the global securities.
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DESCRIPTION OF CAPITAL STOCK
As of December 31, 1998, our authorized capital stock was 25,000,000 shares
of common stock, par value $.01 per share, and 5,000,000 shares of preferred
stock, par value $.001 per share. As of that date, we had 5,719,665 shares of
common stock outstanding, including 141,000 shares held in treasury, and no
shares of preferred stock outstanding. We have summarized below the key terms
and provisions of the Company's capital stock. The descriptions are not
complete. You should read the actual provisions of our Articles of
Incorporation, as amended ("Articles"), and our bylaws that relate to your
individual investment strategy. We have previously filed our Articles and bylaws
with the SEC.
PREFERRED STOCK
The following description of the terms of the preferred stock sets forth
certain general terms and provisions of the preferred stock we may offer. If we
offer preferred stock, we will describe the specific designations and rights in
the prospectus supplement and we will file a description with the SEC.
Our Articles authorize us to issue up to 5,000,000 shares of preferred
stock, none of which are currently outstanding. Our board of directors can,
without approval of stockholders, issue one or more series of preferred stock.
The board of directors can also determine the number of shares of each series
and the rights, preferences and limitations of each series including the
dividend rights, voting rights, conversion rights, redemption rights and any
liquidation preferences of any wholly unissued series of preferred stock, the
number of shares constituting each series and the terms and conditions of issue.
In some cases, the issuance of preferred stock could delay a change in control
of the Company and make it harder to remove present management. Under certain
circumstances, preferred stock could also restrict dividend payments to holders
of our common stock.
The preferred stock will, when issued, be fully paid and non-assessable.
We will name the transfer agent, registrar, and dividend disbursement agent
for a series of preferred stock in a prospectus supplement. The registrar for
shares of preferred stock will send notices to stockholders of any meetings at
which holders of the preferred stock have the right to elect directors or to
vote on any other matter.
COMMON STOCK
LISTING. Our outstanding shares of common stock are listed on the AMEX
under the symbol "MRS." Any additional common stock we issue will also be
listed on the AMEX.
DIVIDENDS. Common stockholders may receive dividends if the board of
directors declares them out of legally available funds. We may pay dividends in
cash, stock or another form. In certain cases, common stockholders may not
receive dividends until we have satisfied our obligations to any preferred
stockholders.
FULLY PAID. All outstanding shares of common stock are fully paid and
non-assessable. Any additional common stock we issue will also be fully paid and
non-assessable.
VOTING RIGHTS. Each share of common stock is entitled to one vote in the
election of directors and other matters. A majority of the issued and
outstanding common stock constitutes a quorum at any meeting of stockholders,
and the vote by the holders of a majority of the outstanding shares is required
to effect certain fundamental corporate changes such as liquidation, merger or
amendment of the Articles. Common stockholders are not entitled to preemptive or
cumulative voting rights.
OTHER RIGHTS. We will notify common stockholders of any stockholders
meetings according to applicable law. If we liquidate, dissolve or wind-up our
business, either voluntarily or not, common stockholders will share equally in
the assets remaining after we pay our creditors and preferred stockholders.
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TRANSFER AGENT AND REGISTRAR. Our transfer agent and registrar is American
Stock Transfer & Trust Company, New York, New York.
OUTSTANDING WARRANTS
The Company has outstanding Warrants. Warrants to acquire 109,999 shares of
common stock at a price of $12.909 per share commencing in August 1998 were
outstanding at December 31, 1998. These warrants expire in August 2001. We
issued the warrants in our 1996 public offering, and they are registered under
the Securities Act.
In October 1997, we completed our acquisition through merger of Republic
Gas Partners, L.L.C. ("Republic"), which was owned by Cortez Natural Gas, Inc.
("Cortez"), a corporation controlled by a member of our board of directors,
Republic Gas Corporation ("RGC") and Riverbend Gas Company ("Riverbend"). As
a result of the merger, Cortez, RGC and Riverbend collectively received, among
other consideration, warrants to acquire up to 137,502 shares of common stock at
a price of $19.773 per share, commencing in October 1997. This total number of
warrants includes warrants for 110,001 shares of common stock and an additional
27,501 warrants subject to certain contingencies. These warrants expire in
October 2000. In connection with this acquisition, the Company granted Cortez,
RGC and Riverbend certain demand and piggyback registration rights regarding the
shares of common stock and warrants purchased.
CERTAIN CORPORATE GOVERNANCE PROVISIONS
LIMITATION ON DIRECTOR LIABILITY. As Private Corporations Section 78.037
of the General Corporation Law of Nevada (the "NGCL") permits, the Articles
eliminate the personal liability of our directors, officers and stockholders for
damages for breach of fiduciary duty, except for (1) acts or omissions that
involve intentional misconduct, fraud of a knowing violation of law, or (2) the
payment of dividends in violation of the NGCL. To the extent that this provision
limits both the remedies of the Company and those of our stockholders to
equitable remedies, it might reduce the likelihood of derivative litigation and
discourage our management or stockholders from initiating litigation against our
directors or officers for breach of their fiduciary duties. Additionally,
equitable remedies may not be effective in many situations. If a stockholder's
only remedy is to enjoin the completion of an action, then the remedy would be
ineffective if the stockholder does not become aware of a transaction or event
until after it has been completed. If this happens, it is possible that the
Company and our stockholders would have no effective remedy against the
directors and officers.
INDEMNIFICATION. To the maximum extent permitted by law, the Articles
provide for mandatory indemnification of our directors and officers against all
expenses, liabilities and losses to which they may become subject or that they
may incur as a result of being or having been a director or officer of the
Company. We may also indemnify any employee or agent of the Company to the
fullest extent permitted by law. In addition, we must advance or reimburse our
directors and officers and may advance or reimburse our employees and agents for
expenses they incur in connection with indemnifiable claims. Under such
provisions, any director or officer, who in his capacity as such, is made or
threatened to be made, a party to any suit or proceeding, may be indemnified if
the board of directors determines such director or officer acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interest of the Company. Our Articles and bylaws and the NGCL, further provide
that such indemnification is not exclusive of any other rights to which such
individuals may be entitled under the Articles, bylaws, any agreement, vote of
stockholders or disinterested directors or otherwise.
We have entered into indemnity agreements with each of our current
directors and executive officers. According to these agreements, we must
indemnify, defend and hold harmless our directors and officers against any loss,
liability or claim arising out of or relating to their capacities as officers
and directors. The Company carries an insurance policy providing directors and
officers with indemnification, subject to certain exclusions and to the extent
not otherwise indemnified by the Company, against loss (including expenses
incurred in the defense of actions, suits or proceedings in
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connection therewith) arising from any negligent act, error, omission or breach
of duty while acting in their capacity as directors and officers of the Company.
The policy also reimburses the Company for liability incurred in the
indemnification of its directors and officer.
NEVADA TAKEOVER STATUTE. We are subject to provisions of the NGCL that
generally restrict business combinations between the Company and its
stockholders who beneficially own 10% or more of the voting power of its
outstanding voting shares. The effect of these provisions is to permit friendly,
negotiated transactions that are approved in advance by the board of directors
while restricting a hostile acquirors flexibility in acquiring the Company. We
qualify the following discussion of these provisions in its entirety by
reference to Nevada Revised Statutes 78.411 through 78.444 (collectively, the
"Takeover Statute"). References to Sections are to sections of the Takeover
Statute.
Combinations the Takeover Statute covers are identified in Section 78.416
and generally include transactions involving our assets or securities. Section
78.438, subject to certain exceptions, prohibits us from engaging in any
combination with any interested stockholder for three years after the interested
stockholders date of acquiring shares unless the combination or the purchase of
shares made by the interested stockholder on such stockholder's date of
acquiring shares is approved by the board of directors before that date.
Section 78.439 also prohibits any combination with an interested
stockholder following the expiration of three years after his date of acquiring
shares unless the combination complies with our Articles and either (i) the
combination or the purchase of shares by the interested stockholder is approved
by the board of directors before the stockholder's date of acquiring shares, or
(ii) at a meeting called for that purpose no earlier than three years after the
interested stockholder's date of acquiring shares, the combination is approved
by the affirmative vote of the holders of stock representing a majority of the
outstanding voting power not beneficially owned by the interested stockholder,
or (iii) the aggregate value of consideration to be received by the holders of
the common stock and by the holders of any other class or series of shares
satisfies certain standards specified in the Takeover Statute, the consideration
to be received by the stockholders is distributed promptly and is in cash or the
same form as the interested stockholder used to acquire the largest number of
shares previously acquired by such stockholder, and except as specified in the
Takeover Statute, the interested stockholder has not become the beneficial owner
of any additional voting shares of the Company after the date of acquiring
shares and before the date of consummation of the combination.
Section 78.423 defines "Interested stockholder" as any person (other than
the Company or any of its subsidiaries) who beneficially owns, directly or
indirectly, 10% or more of the voting power of our outstanding voting shares, or
any affiliate or associate of the Company who, at any time within three years
immediately before the date in question, was the beneficial owner of 10% or more
of the voting power of the Company's then outstanding shares.
DESCRIPTION OF WARRANTS
We may issue warrants, including warrants to purchase debt securities,
preferred stock, common stock or other securities. We may issue warrants
independently or together with other securities that may be attached to or
separate from the warrants. We will issue each series of warrants under a
separate warrant agreement that will be entered into between us and a bank or
trust company, as warrant agent, and will be described in the prospectus
supplement relating to the particular issue of warrants. The warrant agent will
act solely as an agent of the Company in connection with the warrant of such
series and will not assume any obligation or relationship of agency for or with
holders or beneficial owners of warrants. The following describes certain
general terms and provisions of the warrants offered in this prospectus. We will
set forth further terms of the warrants and the applicable warrant agreement in
the applicable prospectus supplement.
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DEBT WARRANTS
The applicable prospectus supplement will describe the terms of any debt
warrants, including the following:
(1) the title of such debt warrants;
(2) the offering price for such debt warrants;
(3) the aggregate number of such debt warrants;
(4) the designation and terms of such debt securities purchasable upon
exercise of such debt warrants;
(5) if applicable, the designation and terms of the securities with which
such debt warrants are issued and the number of such debt warrants
issued with each security;
(6) if applicable, the date from and after which such debt warrants and
any securities issued therewith will be separately transferable;
(7) the principal amount of debt securities purchasable upon exercise of
a debt warrant and the price at which such principal amount of debt
securities may be purchased upon exercise;
(8) the date on which the right to exercise such debt warrants shall
commence and the date on which such right shall expire;
(9) if applicable, the minimum or maximum amount of such debt warrants
which may be exercised at any one time;
(10) whether the debt warrants represented by the debt warrant
certificates or debt securities that may be issued upon exercise of
the debt warrants will be issued in registered form;
(11) information with respect to book-entry procedures, if any;
(12) the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable;
(13) if applicable, a discussion of certain United States federal income
tax considerations;
(14) the antidilution provisions of such debt warrants, if any;
(15) the redemption or call provisions, if any, applicable to such debt
warrants; and
(16) any additional terms of the debt warrants, including terms,
procedures and limitations relating to the exchange and exercise of
such debt warrants.
COMMON AND PREFERRED STOCK WARRANTS
The applicable prospectus supplement will describe the terms of any
warrants for common stock or preferred stock the Company issues, including:
(1) the title of such warrants;
(2) the offering price of such warrants;
(3) the aggregate number of such warrants;
(4) the designation and terms of the common stock or preferred stock
issued by the Company purchasable upon exercise of such warrants;
(5) if applicable, the designation and terms of the securities with which
such warrants are issued and the number of such warrants issued with
each such security;
(6) if applicable, the date from and after which such warrants and any
securities issued therewith will be separately transferrable;
(7) the number of shares of common stock or preferred stock issued by the
Company purchasable upon exercise of the warrants and the price at
which such shares may be purchased upon exercise;
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(8) the date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
(9) if applicable, the minimum or maximum amount of such warrants which
may be exercised at any one time;
(10) the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable;
(11) if applicable, a discussion of certain United States federal income
tax considerations; and
(12) the antidilution provisions of the warrants, if any.
Warrants for the purchase of preferred stock or common stock will be in
registered form only. Prior to the exercise of any warrants, holders of such
warrants will not have any of the rights of holders of common stock purchasable
upon such exercise, including the right to receive payments of dividends, if
any, on the common stock purchasable upon such exercise, or to exercise any
applicable right to vote.
SELLING SECURITY HOLDERS
This prospectus has also been prepared for use by persons who may be
entitled to offer common stock under circumstances requiring the use of a
prospectus (such persons being referred to as "Selling Security Holders");
provided, however, that no Selling Security Holder will be authorized to use
this prospectus for an offer of such common stock without first obtaining our
consent. We may consent to the use of this prospectus by Selling Security
Holders for a limited period of time and subject to limitations and conditions,
which may be varied by agreement between us and the Selling Security Holders.
Information identifying any such Selling Security Holder and disclosing such
information concerning the Selling Security Holder and the amount of common
stock to be sold as may then be required by the Securities Act and the rules of
the SEC will be set forth in a supplement to this prospectus.
PLAN OF DISTRIBUTION
We may sell the securities in or outside of the United States pursuant to
this prospectus: (1) through underwriters or dealers; (2) directly to a limited
number of purchasers or to a single purchaser; or (3) through agents. A
prospectus supplement with respect to the securities will describe the terms of
specific offerings of the securities, including the name or names of any
underwriters or agents, the purchase price of the securities and the proceeds to
us from such sales, any delayed delivery arrangements, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
If we use underwriters in the sale, the underwriters will acquire the
securities for their own account and may resell them from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. We may offer the
securities to the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more firms acting as
underwriters. The underwriter or underwriters with respect to a particular
underwritten offering of securities will be named in the prospectus supplement
relating to such offering and, if an underwriting syndicate is used, we will set
forth the managing underwriter or underwriters on the cover of such prospectus
supplement. Unless otherwise described in the prospectus supplement relating
thereto, the obligations of the underwriters to purchase the securities in any
such sale will be subject to conditions precedent, and the underwriters will be
obligated to purchase all the securities if any are purchased.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions
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and purchases to cover syndicate short positions created in connection with the
offering. The underwriters also may impose a penalty bid, under which the
syndicate may reclaim selling concessions allowed to syndicate members or other
broker-dealers for the securities they sell for their account if the syndicate
repurchases the securities in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
securities then offered, which price may be higher than the price that might
otherwise prevail in the open market, and, if commenced, these activities may be
discontinued at any time.
If we use dealers in any of the sales of securities covered by this
prospectus, we will sell those securities to dealers as principals. The dealers
may then resell the securities to the public at varying prices the dealers
determine at the time of resale. The names of the dealers and the terms of the
transaction will be described in a prospectus supplement.
Agreements with Selling Security Holders permitting use of this prospectus
may provide that any such offering be effected in an orderly manner through
securities dealers, acting as broker or dealer, selected by us; that Selling
Security Holders enter into custody agreements with one or more banks with
respect to the securities offered; and that sales be made only by one or more of
the methods described in this prospectus, as appropriately supplemented or
amended when required. The Selling Security Holders may be deemed to be
underwriters within the meaning of the Securities Act.
Upon the Company's being notified by a Selling Security Holder that it
proposes to make a block trade, a prospectus supplement, if required, will be
filed pursuant to Rule 424 under the Securities Act, disclosing the name of the
broker or dealer, the number of shares of common stock involved, the price at
which such shares of common stock are being sold by such Selling Security
Holder, and the commissions to be paid by such Selling Security Holder to such
broker or dealer.
We may sell the securities directly or through agents we designate from
time to time. Any agent involved in the offer or sale of the securities this
prospectus covers will be named, and any commissions payable by us or by the
Selling Security Holders to an agent will be described, in a prospectus
supplement relating thereto. Unless otherwise indicated in a prospectus
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
Agents, dealers and underwriters may be entitled under agreements entered
into with us or with the Selling Security Holders to indemnification by us or by
the Selling Security Holders against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which such agents, dealers or underwriters may be required to make in
respect thereof. Agents, dealers and underwriters may be customers of, engage in
transactions with, or perform services on behalf of us in the ordinary course of
business.
We or the Selling Security Holders may sell the securities directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any sale thereof. The terms of
any such sales will be described in a prospectus supplement.
If so indicated in a prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. These contracts will be
subject only to those conditions we set forth in the prospectus supplement, and
the prospectus supplement will describe the commission payable for solicitation
of such contracts.
Each series of debt securities we offer will be a new issue of securities
and will have no established trading market. The securities may or may not be
listed on a national securities exchange. No assurances can be given that there
will be a market for the securities.
Our outstanding shares of common stock are listed on the AMEX under the
symbol "MRS." Any additional common stock we issue will also be listed on the
AMEX.
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LEGAL MATTERS
Certain legal matters relating to the validity of the debt securities,
preferred stock, common stock and warrants will be passed upon by Porter &
Hedges, L.L.P., Houston, Texas, and regarding certain matters of Nevada law,
Porter & Hedges, L.L.P. will rely on the opinion of Woodburn and Wedge, Reno,
Nevada. Any underwriters will be advised about other issues relating to any
offering by their own legal counsel.
EXPERTS
Our consolidated financial statements as of December 31, 1997 and 1996 and
for each of the three years in the period ended December 31, 1997 incorporated
by reference in this registration statement and prospectus, have been audited by
Hein + Associates LLP, certified public accountants, as set forth in their
report, incorporated by reference herein, in reliance upon the authority of said
firm as experts in accounting and auditing.
The combined financial statements of the AlaTenn Subsidiaries as of
December 31, 1996 and 1995 and for the three years in the period ended December
31, 1996, incorporated by reference in this registration statement and
prospectus, have been audited by Hein + Associates LLP, certified public
accountants, as set forth in their report, incorporated by reference herein, in
reliance upon the authority of said firm as experts in accounting and auditing.
The historical summary of revenue and direct operating expenses of the Koch
Hydrocarbons Company -- Harmony Gas Processing Plant for the year ended December
31, 1995, incorporated by reference in this registration statement and
prospectus, have been audited by Hein + Associates LLP, certified public
accountants, as set forth in their report, incorporated by reference herein, in
reliance upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Republic Gas Partners, L.L.C. and
Subsidiaries as of September 30, 1997 and December 31, 1996 and for the
twenty-one month period ended September 30, 1997, incorporated by reference in
this registration statement and prospectus, have been audited by Hein +
Associates, LLP, certified public accountants, as set forth in this report
incorporated by reference herein, in reliance upon the authority of said firm as
experts in accounting and auditing.
The historical summary of revenue and direct operating expenses of the
Anadarko Gas Gathering System of El Paso Field Services Company, a business unit
of El Paso Energy Corporation for the year ended July 31, 1998, incorporated by
reference in this registration statement and prospectus, have been audited by
Hein + Associates LLP, certified public accountants, as set forth in their
report, incorporated by reference herein, in reliance upon the authority of said
firm as experts in accounting and auditing.
17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Company to be incurred in connection
with the issuance and distribution of the securities described in this
registration statement other than underwriting discounts and commissions are as
follows:
Securities and Exchange Commission
Registration Fee................... $ 55,600
Printing and Engraving Expenses...... $ 75,000
Accounting Fees and Expenses......... $ 50,000
Legal Fees and Expenses.............. $ 150,000
Blue Sky Qualification Fees and
Expenses........................... $ 10,000
Trustees' Fees and Expenses.......... $ 20,000
Fees of Rating Agencies.............. $ 175,000
Miscellaneous Fees................... $ 25,000
---------
Total........................... $ 560,600
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The NGCL provides that a corporation may indemnify any person who was or is
a party or is threatened to be made a party, by reason of the fact that such
person was an officer or director of such corporation, or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, to
(i) any action or suit by or in the right of the corporation against expenses,
including amounts paid in settlement and attorneys' fees, actually and
reasonably incurred, in connection with the defense or settlement believed to be
in, or not opposed to, the best interests of the corporation, except that
indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction to be liable to
the corporation or for amounts paid in settlement to the corporation and (ii)
any other action or suit or proceeding against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred, if he or she acted in good faith and in a manner which he or she
reasonably believed to be in, or not opposed to, reasonable cause to believe his
or her conduct was unlawful. To the extent that a director, officer, employee or
agent has been "successful on the merits or otherwise" the corporation must
indemnify such person. The articles of incorporation or bylaws may provide that
the expenses of officers and directors incurred in defending any such action
must be paid as incurred and in advance of the final disposition of such action.
The NGCL also permits the registrant to purchase and maintain insurance on
behalf of the registrants directors and officers against any liability arising
out of their status as officers and directors, whether or not the registrant
would have the power to indemnify him against such liability. These provisions
may be sufficiently broad to indemnify such persons for liabilities arising
under the Securities Act.
Our Articles and bylaws provide that we shall, to the fullest extent
allowed by applicable law, indemnify any director or officer of the Company in
connection with certain actions, suits or proceedings, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred. We are also required to pay any expenses
incurred by our directors or officers in defending such an action, in advance of
the final disposition of such action. Our Articles and bylaws also provide that,
by resolution of the board of directors, such benefits may be extended to
employees, agents or other representatives of the Company. In addition, our
Articles and bylaws provide that all rights to indemnification and advancement
of expenses are deemed to arise
II-1
<PAGE>
out of a contract between the Company and each person to be indemnified which
may be evidenced by a separate contract between the Company and each such
person.
The NGCL provides that a corporation's articles of incorporation may
contain a provision which eliminates or limits the personal liability of a
director or officer to the corporation or its stockholders for damages for
breach of fiduciary duty as a director or officer, provided that such a
provision must not eliminate or limit the liability of a director or officer
for: (a) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law; or (b) the payment of illegal distributions. Our
Articles include a provision eliminating the personal liability of directors for
breach of fiduciary duty to the extent allowed under applicable law.
Our bylaws provide that we may maintain insurance, at our expense, to
protect the Company and any of our directors, officers, employees or agents or
any person serving at our request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any expense, liability or loss, whether or not we would have the power
to indemnify such person against such expense, liability or loss under the NGCL.
We have entered into indemnity agreements with each current director and
executive officer. Under these agreements, we must indemnify our directors and
officers from any loss, liability or claim arising from their capacities as
directors and officers. We carry directors and officers liability insurance that
would indemnify the directors and officers of the Company against damages
arising out of certain kinds of claims that might be made against them based on
their negligent acts or omissions while acting in their capacity as officers and
directors. The policy also reimburses the Company for liability incurred in the
indemnification of its directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities 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 Securities Act, and will be governed by the final
adjudication of such issue.
The above discussion of the NGCL and our Articles and bylaws is not
intended to be exhaustive and is qualified in its entirety by the NGCL and our
Articles and bylaws.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------------ ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
***1.1 -- Form of Underwriting Agreement (Debt).
***1.2 -- Form of Underwriting Agreement (Equity).
*4.1 -- Form of Senior Indenture.
*4.2 -- Form of Subordinated Indenture.
**5.1 -- Opinion of Porter & Hedges, L.L.P.
**5.2 -- Opinion of Woodburn and Wedge.
*12.1 -- Statement Regarding Computation of Ratios.
*21.1 -- Schedule Listing Subsidiaries of Midcoast Energy Resources, Inc.
**23.1 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1).
**23.2 -- Consent of Woodburn and Wedge (included in Exhibit 5.2).
**23.3 -- Consent of Hein + Associates, L.L.P.
*24.1 -- Power of Attorney (included on signature page).
***25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Senior Debt.
***25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Subordinated Debt.
</TABLE>
- ------------
* Previously filed.
** Filed herewith.
*** To be filed by amendment or as an exhibit to a current report on Form 8-K.
(b) Financial Statement Schedules
Schedules are omitted since the information required to be submitted has
been included in the Consolidated Financial Statements of Midcoast Energy
Resources, Inc., or the notes thereto, incorporated by reference herein, or the
required information is not applicable.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(1) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(i) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b), if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(ii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs
is contained in the periodic reports filed with or
II-3
<PAGE>
furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) That for the purpose of determining any liability under the Securities
Act, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby further undertakes that, for the purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange that is incorporated by reference in this registration
statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise, the registrant has been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained
in a 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.
(2) For the purpose of determining any liability under the Securities Act,
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.
(e) The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the SEC under
section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MIDCOAST ENERGY RESOURCES, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ DAN C. TUTCHER Chairman of the Board of February 3, 1999
(DAN C. TUTCHER) Directors, President and Chief
Executive Officer
*
___________________________ Executive Vice President, Chief February 3, 1999
(I. J. BERTHELOT, II) Operating
Officer and Director
*
___________________________ Treasurer and Principal Financial February 3, 1999
(RICHARD A. ROBERT) Officer (Principal Accounting
Officer)
*
___________________________ Director February 3, 1999
(RICHARD N. RICHARDS)
*
___________________________ Director February 3, 1999
(BRUCE WITHERS)
*
___________________________ Director February 3, 1999
(TED COLLINS)
* By: /s/ DAN C. TUTCHER
Dan C. Tutcher,
as Attorney-In-Fact
</TABLE>
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MAGNOLIA RESOURCES, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C> <C> <C>
/s/ DAN C. TUTCHER President and Director February 3, 1999
(DAN C. TUTCHER) (Principal Executive Officer)
*
_________________________ Vice President February 3, 1999
(I. J. BERTHELOT, II) and Director
*
_________________________ Treasurer and Chief Financial February 3, 1999
(RICHARD A. ROBERT) Officer (Principal
Accounting Officer)
* By: /s/ DAN C. TUTCHER
Dan C. Tutcher,
as Attorney-In-Fact
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MAGNOLIA GATHERING, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ DAN C. TUTCHER President and Director February 3, 1999
(DAN C. TUTCHER) (Principal Executive Officer)
*
____________________________ Vice President and Director February 3, 1999
(I. J. BERTHELOT, II)
*
____________________________ Treasurer and Chief Financial February 3, 1999
(RICHARD A. ROBERT) Officer (Principal Accounting
Officer)
* By: /s/ DAN C. TUTCHER
Dan C. Tutcher,
as Attorney-In-Fact
</TABLE>
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MAGNOLIA PIPELINE CORPORATION
By: /s/ STEVENS G. HERBST
Stevens G. Herbst
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Magnolia Pipeline Corporation hereby
severally constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each
of them, to sign for him, and in his name in the capacity indicated below, such
Amendment No. 1 to the Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ STEVENS G. HERBST President February 3, 1999
(STEVENS G. HERBST) and Director
/s/ I. J. BERTHELOT, II Executive Vice President, February 3, 1999
(I. J. BERTHELOT, II) Chief Operating Officer
and Director
/s/ DAN C. TUTCHER Vice President and Director February 3, 1999
(DAN C. TUTCHER)
/s/ RICHARD A. ROBERT Treasurer, Chief Financial February 3, 1999
(RICHARD A. ROBERT) Officer and principal
accounting officer
</TABLE>
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MIDCOAST HOLDINGS NO. ONE, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Midcoast Holdings No. One, Inc. hereby
severally constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each
of them, to sign for him, and in his name in the capacity indicated below, such
Amendment No. 1 to the Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ DAN C. TUTCHER President and Director February 3, 1999
(DAN C. TUTCHER)
/s/ STEVENS G. HERBST Executive Vice President February 3, 1999
(STEVENS G. HERBST) and Director
/s/ RICHARD A. ROBERT Treasurer and principal February 3, 1999
(RICHARD A. ROBERT) accounting officer
</TABLE>
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MIDCOAST MARKETING, INC.
By: /s/ MARK FUQUA
Mark Fuqua
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Midcoast Marketing, Inc. hereby severally
constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each of them,
to sign for him, and in his name in the capacity indicated below, such Amendment
No. 1 to the Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ MARK FUQUA President February 3, 1999
(MARK FUQUA)
/s/ DAN C. TUTCHER Chief Executive Officer February 3, 1999
(DAN C. TUTCHER) and Director
/s/ STEVENS G. HERBST Vice President and Director February 3, 1999
(STEVENS G. HERBST)
/s/ RICHARD A. ROBERT Treasurer, Chief Financial February 3, 1999
(RICHARD A. ROBERT) Officer and principal
accounting officer
</TABLE>
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MIDCOAST INTERSTATE TRANSMISSION, INC.
*
By: /s/ _______________________
E.P. Marinos
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------ ---------------------------------------- ------------------
<S> <C>
*
___________________________ President and Director February 3, 1999
(E.P. MARINOS) (Principal Executive Officer)
*
___________________________ Treasurer and Chief Financial February 3, 1999
(RICHARD A. ROBERT) Officer (Principal
Accounting Officer)
/s/ DAN C. TUTCHER Chairman of the Board February 3, 1999
(DAN C. TUTCHER) of Directors
*
___________________________ Director February 3, 1999
(I. J. BERTHELOT, II)
*
___________________________ Director February 3, 1999
(BRUCE WITHERS)
*
___________________________ Director February 3, 1999
(RICHARD N. RICHARDS)
* By: /s/ DAN C. TUTCHER
Dan C. Tutcher,
as Attorney-In-Fact
</TABLE>
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
TENNESSEE RIVER INTRASTATE GAS COMPANY, INC.
*
By: /s/ ______________________
E.P. Marinos
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
*
_____________________________ President and Director February 3, 1999
(E.P. MARINOS) (Principal Executive Officer)
*
_____________________________ Treasurer and Chief Financial February 3, 1999
(RICHARD A. ROBERT) Officer (Principal
Accounting Officer)
/s/ DAN C. TUTCHER Chairman of the Board February 3, 1999
(DAN C. TUTCHER) of Directors
*
_____________________________ Director February 3, 1999
(I. J. BERTHELOT, II)
* By: /s/ DAN C. TUTCHER
Dan C. Tutcher,
as Attorney-In-Fact
</TABLE>
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MID LOUISIANA GAS TRANSMISSION COMPANY
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Mid Louisiana Gas Transmission Company,
hereby severally constitutes and appoints Dan C. Tutcher and Duane S. Herbst,
and each of them, to sign for him, and in his name in the capacity indicated
below, such Amendment No. 1 to the Registration Statement on Form S-3 and for
the purpose of registering such securities under the Securities Act of 1933, as
amended, and any and all amendments thereto, including without limitation any
registration statements or post-effective amendment thereof filed under and
meeting the requirements of Rule 462(b) under the Securities Act, hereby
ratifying and confirming our signatures as they may be signed by our attorneys
to such registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ DAN C. TUTCHER President and Director February 3, 1999
(DAN C. TUTCHER)
/s/ RICHARD A. ROBERT Treasurer and principal February 3, 1999
(RICHARD A. ROBERT) accounting officer
/s/ STEVENS G. HERBST Director February 3, 1999
(STEVENS G. HERBST)
</TABLE>
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MID LOUISIANA GAS COMPANY
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Mid Louisiana Gas Company hereby severally
constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each of them,
to sign for him, and in his name in the capacity indicated below, such Amendment
No. 1 to the Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ DAN C. TUTCHER President and Director February 3, 1999
(DAN C. TUTCHER)
/s/ RICHARD A. ROBERT Treasurer and principal February 3, 1999
(RICHARD A. ROBERT) accounting officer
/s/ STEVENS G. HERBST Director February 3, 1999
(STEVENS G. HERBST)
</TABLE>
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MIDCOAST GAS PIPELINE, INC.
By: /s/ STEVENS G. HERBST
Stevens G. Herbst
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Magnolia Resources, Inc. hereby severally
constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each of them,
to sign for him, and in his name in the capacity indicated below, such Amendment
No. 1 to the Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ STEVENS G. HERBST President February 3, 1999
(STEVENS G. HERBST) and Director
/s/ DAN C. TUTCHER Executive Vice President February 3, 1999
(DAN C. TUTCHER) and Director
/s/ I. J. BERTHELOT, II Vice President February 3, 1999
(I. J. BERTHELOT, II) and Director
/s/ RICHARD A. ROBERT Treasurer and principal February 3, 1999
(RICHARD A. ROBERT) accounting officer
</TABLE>
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
MIDCOAST GAS SERVICES, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Midcoast Gas Services, Inc. hereby
severally constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each
of them, to sign for him, and in his name in the capacity indicated below, such
Amendment No. 1 to the Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ DAN C. TUTCHER President and Director February 3, 1999
(DAN C. TUTCHER)
/s/ RICHARD A. ROBERT Treasurer, Chief Financial February 3, 1999
(RICHARD A. ROBERT) Officer and principal
accounting officer
/s/ STEVENS G. HERBST Director February 3, 1999
(STEVENS G. HERBST)
</TABLE>
II-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas
on February 3, 1999.
CREOLE GAS PIPELINE CORPORATION
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement on Form S-3 has been signed below by the
following persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Creole Gas Pipeline Corporation hereby
severally constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each
of them, to sign for him, and in his name in the capacity indicated below, such
Amendment No. 1 to the Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------- ------------------
<S> <C>
/s/ DAN C. TUTCHER President and Director February 3, 1999
(DAN C. TUTCHER)
/s/ RICHARD A. ROBERT Treasurer, and principal February 3, 1999
(RICHARD A. ROBERT) accounting officer
/s/ STEVENS G. HERBST Director February 3, 1999
(STEVENS G. HERBST)
</TABLE>
II-17
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------------ ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
***1.1 -- Form of Underwriting Agreement (Debt).
***1.2 -- Form of Underwriting Agreement (Equity).
*4.1 -- Form of Senior Indenture.
*4.2 -- Form of Subordinated Indenture.
**5.1 -- Opinion of Porter & Hedges, L.L.P.
**5.2 -- Opinion of Woodburn and Wedge.
*12.1 -- Statement Regarding Computation of Ratios.
*21.1 -- Schedule Listing Subsidiaries of Midcoast Energy Resources, Inc.
**23.1 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1).
**23.2 -- Consent of Woodburn and Wedge (included in Exhibit 5.2)
**23.3 -- Consent of Hein + Associates, L.L.P.
*24.1 -- Power of Attorney (included on signature page).
***25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Senior Debt.
***25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Subordinated Debt.
</TABLE>
- ------------
* Previously filed.
** Filed herewith.
*** To be filed by amendment or as an exhibit to a current report on Form 8-K.
EXHIBIT 5.1
[Porter & Hedges, L.L.P. Letterhead]
February 3, 1999
Securities and Exchange Commission
450 Fifth Street
Judiciary Plaza
Washington D.C. 20549
Re: Midcoast Energy Resources, Inc. -- Registration Statement on Form
S-3
Gentlemen:
We have acted as counsel to Midcoast Energy Resources, Inc., a Nevada
corporation (the "Company"), in connection with the registration on Form S-3 of
the Securities Act of 1933, as amended, of up to $200,000,000 aggregate amount
of (i) shares of common stock, par value $.01 per share ("Common Stock"), (ii)
shares of preferred stock, in one or more series, as may be designated by the
Board of Directors of the Company ("Preferred Stock"), (iii) debt securities, in
one or more series, consisting of notes, debentures or other evidences of
indebtedness ("Debt Securities"), payments of which shall be guaranteed by any
or all of the Company's subsidiaries (the "Guarantees") and (iv) warrants to
purchase Common Stock, Preferred Stock and Debt Securities ("Warrants")
(collectively, the Common Stock, Preferred Stock, Debt Securities and Warrants,
hereinafter referred to as the "Securities"). In rendering the opinions set
forth below, we have examined the Articles of Incorporation, as amended, bylaws
and corporate proceedings of the Company, and have made such other examinations
as we have deemed necessary and, based upon such examination and having regard
for applicable legal principles, it is our opinion that:
(i) the shares of Common Stock, when the terms of the issuance and sale
thereof have been duly approved by the Board of Directors of the Company in
conformity with the Company's Articles of Incorporation, as amended, and when
issued and delivered against payment therefor for an amount in excess of the par
value thereof, and, if issued upon the exercise or conversion of any Warrants or
Debt Securities, issued and delivered as contemplated by the terms thereof and
of any Warrant Agreement or the applicable Indenture, respectively, relating
thereto, will be validly issued, fully paid and non-assessable;
(ii) upon the fixing of the designations, relative rights, preferences and
limitations of any series of Preferred Stock by the Board of Directors of the
Company in conformity with the Private Corporation Law of Nevada and the
Articles of Incorporation, as amended, of the Company and upon the approval by
the Board of Directors of the Company of the specific terms of the issuance, all
necessary corporate action on the part of the Company will have been taken to
authorize the
<PAGE>
Securities and Exchange Commission
February 3, 1999
Page 2
issuance and sale of such series of Preferred Stock proposed to be sold by the
Company, and when such shares of Preferred Stock are issued and delivered
against payment therefor for an amount in excess of the par value thereof, and,
if issued upon the exercise or conversion of any Warrants or Debt Securities,
issued and delivered as contemplated by the terms thereof and of any Warrant
Agreement or the applicable Indenture, respectively, relating thereto, such
shares will be validly issued, fully paid and non-assessable;
(iii) assuming the Senior Indenture is duly executed and delivered by the
Company and duly authorized, executed and delivered by the Trustee, when the
terms of the senior Company Debt Securities and their issue and sale have been
duly established in conformity with the Senior Indenture so as not to violate
any applicable law or agreement or instrument then binding on the Company, the
senior Company Debt Securities have been duly executed and authenticated in
accordance with the terms of the Senior Indenture and issued and sold as
contemplated in the Registration Statement, and, if issued upon the exercise or
conversion of any Warrants, issued and delivered as contemplated by the terms
thereof and of any Warrant Agreement relating thereto, the senior Company Debt
Securities will constitute valid and binding obligations of the Company, subject
to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other laws now or hereafter in effect affecting creditors' rights generally
and (ii) general principles of equity, whether considered in a proceeding in
equity or at law;
(iv) assuming the Subordinated Indenture is duly executed and delivered by
the Company and duly authorized, executed and delivered by the Trustee, when the
terms of the subordinated Company Debt Securities and their issue and sale have
been duly established in conformity with the Subordinated Indenture so as not to
violate any applicable law or agreement or instrument then binding on the
Company, the subordinated Company Debt Securities have been duly executed and
authenticated in accordance with the terms of the Subordinated Indenture and
issued and sold as contemplated in the Registration Statement, and, if issued
upon the exercise or conversion of any Warrants, issued and delivered as
contemplated by the terms thereof and of any Warrant Agreement relating thereto,
the subordinated Company Debt Securities will constitute valid and binding
obligations of the Company, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other laws now or hereafter
in effect affecting creditors' rights generally and (ii) general principles of
equity, whether considered in a proceeding in equity or at law; and
(v) when the issuance, execution and delivery by the Company of any of the
Warrants shall have been duly authorized by all necessary corporate action of
the Company, the Warrant Agreement relating thereto shall have been executed and
delivered by the respective parties thereto
<PAGE>
Securities and Exchange Commission
February 3, 1999
Page 3
and such Warrants shall have been duly executed and delivered by the Company,
countersigned by the Warrant Agent relating thereto and sold as contemplated by
the Registration Statement and the Warrant Agreement relating thereto, assuming
that the terms of such Warrants are in compliance with then applicable law, such
Warrants will be validly issued and will be enforceable against the Company in
accordance with their terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other laws now or hereafter
in effect affecting creditors' rights generally and (ii) general principles of
equity, whether considered in a proceeding in equity or at law.
The foregoing opinions are subject to the following additional conditions:
(a) the due authorization, execution and delivery by the Company, and by each
counterparty thereto, of (x) each applicable Indenture (including any necessary
supplemented indenture or additional corporate proceedings) relating to such of
the Securities as are evidences of indebtedness that are offered and sold (or
which may become issuable upon the conversion, exchange or exercise of any
convertible, exchangeable or exercisable Securities) and (y) each applicable
Warrant Agreement (including any necessary warrant agreement supplement or
additional corporate proceedings) relating to such of the Securities as are
warrants that are offered and sold (or which may become issuable upon the
conversion, exchange or exercise of any convertible, exchangeable or exercisable
Securities), (b) with respect to such of the Securities as are Preferred Stock,
the due designation of an applicable series within that class and the due
authorization for issuance of such number of shares of Preferred Stock within
the series that are offered and sold (or the reservation of such shares as may
become issuable upon the conversion, exchange or exercise of any convertible,
exchangeable or exercisable Securities), and (c) with respect to such of the
Securities as are Common Stock, the due authorization for issuance of such
number of shares of Common Stock that are offered and sold (or the reservation
of such shares as may become issuable upon the conversion, exchange or exercise
of any convertible, exchangeable or exercisable Securities).
We have been furnished with originals of certificates or other
represenatations of public officials, and have made such inquiry to officers and
representatives of the Company as we have deemed necessary as a basis for the
opinions herein expressed. As to questions of fact material to this opinion, we
have, to the extent we deemed appropriate and when relevant facts were not
independently established, relied upon certificates of executive officers and
other representatives of the Company.
We express no opinion as to the legality, validity, binding effect or
enforceability of any provision of the Debt Securities, the Indentures or the
Guarantees providing for payments thereunder in a currency other than currency
of the United States of America to the extent that a court of competent
jurisdiction will under applicable law convert any judgment rendered in such
other currency into currency of the United States of America or to the extent
that payment in a currency other than currency of the United States of America
is contrary to applicable law.
This opinion is restricted to (i) the laws of the State of Texas, (ii) the
federal law of the United States of America, (iii) and solely
<PAGE>
Securities and Exchange Commission
February 3, 1999
Page 4
with respect to the matters discussed in paragraphs (iii) and (iv) above, the
laws of the State of New York. As to matters of Nevada law, we have relied
solely upon the opinion dated as of February 3, 1999 and addressed to the
Securities and Exchange Commission of the law firm Woodburn and Wedge.
The opinions stated herein are as of the date hereof and are limited to
laws, facts and circumstances in existence on the date hereof, and we assume no
undertaking to advise you of any change in the opinions expressed herein,
whether or not material, as a result of any change in the laws, facts or
circumstances pertaining to this Registration Statement that may come to our
attention after the date hereof.
We hereby consent to the use of our name in the Registration Statement and
the related prospectus wherever contained therein and we also consent to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ PORTER & HEDGES, L.L.P.
PORTER & HEDGES, L.L.P.
EXHIBIT 5.2
[WOODBURN AND WEDGE LETTERHEAD]
February 3, 1999
Securities and Exchange Commission
450 Fifth Street
Judiciary Plaza
Washington D.C. 20549
Re: Midcoast Energy Resources, Inc. -- Registration Statement on Form S-3
Gentlemen:
We have acted as special Nevada counsel to Midcoast Energy Resources,
Inc., a Nevada corporation (the "Company"), in connection with the registration
on Form S-3 of the Securities Act of 1933, as amended, of up to $200,000,000
aggregate amount of (i) shares of common stock, par value $.01 per share
("Common Stock"), (ii) shares of preferred stock, in one or more series, as may
be designated by the Board of Directors of the Company ("Preferred Stock"),
(iii) debt securities, in one or more series, consisting of notes, debentures or
other evidences of indebtedness ("Debt Securities"), payment of which shall be
guaranteed by any or all of the Company's subsidiaries and (iv) warrants to
purchase Common Stock, Preferred Stock and Debt Securities ("Warrants")
(collectively, the Common Stock, Preferred Stock, Debt Securities and Warrants
hereinafter referred to as the "Securities"). In rendering the opinions set
forth below, we have examined the Articles of Incorporation, bylaws and
corporate proceedings of the Company, and have made such other examinations as
we have deemed necessary and, based upon such examination and having regard for
applicable legal principles, it is our opinion that:
(i) the shares of Common Stock, when the terms of the issuance and sale
thereof have been duly approved by the Board of Directors of the Company in
conformity with the Company's Articles of Incorporation, as amended, and when
issued and delivered against payment therefor for an amount in excess of the par
value thereof, and, if issued upon the exercise or conversion of any Warrants or
Debt Securities, issued and delivered as contemplated by the terms thereof and
of any Warrant Agreement or the applicable Indenture, respectively, relating
thereto, will be validly issued, fully paid and non-assessable; and
(ii) upon the filing of a Certifiate of Designation with the Nevada
Secretary of State setting forth a resolution of the Board of Directors of the
Company which fixes the designations, relative rights, preferences and
limitations of any series of Preferred Stock in conformity with the Private
Corporation Law of Nevada and the Articles of Incorporation of the Company and
upon the
<PAGE>
Securities and Exchange Commission
February 3, 1999
Page -2-
approval by the Board of Directors of the Company of the specific terms of the
issuance, all necessary corporate action on the part of the Company will have
been taken to authorize the issuance and sale of such series of Preferred Stock
proposed to be sold by the Company, and when such shares of Preferred Stock are
issued and delivered against payment therefor for an amount in excess of the par
value thereof, and, if issued upon the exercise or conversion of any Warrants or
Debt Securities, issued and delivered as contemplated by the terms thereof and
of any Warrant Agreement or the applicable Indenture, respectively, relating
thereto, such shares will be validly issued, fully paid and non-assessable.
We have been furnished with originals of certificates or other
representations of public officials, and have made such inquiry to officers and
representatives of the Company as we have deemed necessary as a basis for the
opinions herein expressed. As to questions of fact material to this opinion, we
have, to the extent we deemed appropriate and when relevant facts were not
independently established, relied upon certificates of executive officers and
other representatives of the Company.
We are admitted to practice only in the State of Nevada and our opinions
expressed herein are limited in all respects to the laws of the State of Nevada
and federal laws of the United States of America. The opinions stated herein are
as of the date hereof and are limited to laws, facts and circumstances in
existence on the date hereof, and we assume no undertaking to advise you of any
change in the opinions expressed herein, whether or not material, as a result of
any change in the laws, facts or circumstances pertaining to this Registration
Statement that may come to our attention after the date hereof.
We hereby consent to the use of our name in the Registration Statement and
the related prospectus wherever contained therein and we also consent to the
filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
WOODBURN and WEDGE
By: /s/ KIRK S. SCHUMACHER
Kirk S. Schumacher
EXHIBIT 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use of our reports on the consolidated financial
statements of Midcoast Energy Resources, Inc. as of December 31, 1997 and 1996,
and for each of the years in the three-year period ended December 31, 1997,
dated February 27, 1998, incorporated by reference, in this Registration
Statement on Form S-3 and to the reference to our Firm under the heading
Experts. We also consent to the use of our reports on the financial statements
of the AlaTenn Subsidiaries as of December 31, 1996 and 1995, and for each of
the years in the three-year period ended December 31, 1996, dated May 9, 1997,
the consolidated financial statements of Republic Gas Partners, L.L.C. as of
September 30, 1997 and December 31, 1995, and for the 21-month period ended
September 30, 1997, dated January 7, 1998, the historical summary of revenue and
direct operating expenses of the KOCH Hydrocarbon Company -- Harmony Gas
Processing Plant for the year ended December 31, 1995, dated November 8, 1996,
and the historical summary of revenue and direct operating expenses of the
Anadarko Gas Gathering System of El Paso Field Services Company, a business unit
of El Paso Energy Corporation, for the year ended July 31, 1998, dated October
20, 1998, incorporated by reference, in this Registration Statement on Form S-3.
/s/ Hein + Associates LLP
Hein + Associates LLP
Houston, Texas
February 3, 1999
