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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 2000
REGISTRATION NO. 333-85987
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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AMENDMENT NO. 3
TO
FORM S-1
ON
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EL PASO ENERGY PARTNERS, L.P.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 1311 76-0396023
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
<TABLE>
<S> <C>
BRITTON WHITE JR. D. MARK LELAND
EL PASO ENERGY BUILDING SENIOR VICE PRESIDENT AND CONTROLLER
1001 LOUISIANA STREET, 30(TH) FLOOR EL PASO ENERGY BUILDING
HOUSTON, TEXAS 77002 1001 LOUISIANA STREET, 26(TH) FLOOR
(713) 420-2131 HOUSTON, TEXAS 77002
(Address, including zip code, and telephone number (713) 420-2131
including area code of registrant's principal (Name, address, including zip code, and telephone
executive offices) number, including area code of agent for service)
</TABLE>
Copies to:
J. VINCENT KENDRICK
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1900 PENNZOIL PLACE, SOUTH TOWER
711 LOUISIANA STREET
HOUSTON, TEXAS 77002
(713) 220-5800
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Approximate date of commencement of proposed sale of the securities to the
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, 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, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED(1) AGGREGATE OFFERING PRICE(2) REGISTRATION FEE(3)
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<S> <C> <C>
Series and classes of limited partner interests $500,000,000 $132,000
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</TABLE>
(1) The securities registered consist of $500,000,000 of an indeterminate number
and amount of any series or class of limited partner interests authorized by
the company's partnership agreement, as may be issued from time-to-time at
indeterminate prices. This registration statement also covers an
indeterminate amount of securities as may be issued in exchange for, or upon
conversion or exercise of, as the case may be, the securities registered
hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933.
(3) Of the total amount owed, $31,170.75 was paid on August 26, 1999 and
$100,829.25 was paid on June 16, 2000.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth the estimated expenses and costs expected to be
incurred in connection with the issuance and distribution of the securities
registered hereby. All of such costs will be borne by us.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $132,000.00
Printing and engraving expenses............................. 125,000.00
Legal fees and expenses..................................... 100,000.00
Accounting fees and expenses................................ 250,000.00
Miscellaneous............................................... 250,000.00
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Total $857,000.00
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</TABLE>
** To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The section of the prospectus entitled "Certain Other Partnership Agreement
Provisions -- Indemnification" is incorporated herein by reference. Subject to
any terms, conditions or restrictions set forth in the Partnership Agreement,
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act empowers
a Delaware limited partnership to indemnify and hold harmless any partner or
other person from and against all claims and demands whatsoever.
Section 145(a) of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a Delaware corporation may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he shall be indemnified against any expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director,
officer, employee or agent of
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the corporation against any liability asserted against him or incurred by him in
any such capacity or arising out of his status as such whether or not the
corporation would have the power to indemnify him against such liabilities under
Section 145.
Section 102(b)(7) of the DGCL provides that a corporation in its original
certificate of incorporation or an amendment thereto validly approved by
stockholders may eliminate or limit personal liability of members of its board
of directors or governing body for breach of a director's fiduciary duty.
However, no such provision may eliminate or limit the liability of a director
for breaching his duty of loyalty, failing to act on good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which was illegal or obtaining an improper personal
benefit. A provision of this type has no effect on the availability of equitable
remedies, such as injunction or rescission, for breach of fiduciary duty.
The Certificate of Incorporation of our general partner contains a
provision which limits the liability of the directors of our general partner to
our general partner or its stockholder (in their capacity as directors but not
in their capacity as officers) to the fullest extent permitted by the DGCL. In
addition, the Amended and Restated Bylaws of our general partner (as amended and
restated, the "Bylaws"), in substance, require our general partner to indemnify
each person who is or was a director, officer, employee or agent of our general
partner to the full extent permitted by the laws of the State of Delaware in the
event such person is involved in legal proceedings by reason of the fact that he
is or was a director, officer, employee or agent of our general partner, or is
or was serving at our general partner's request as a director, officer, employee
or agent of our general partner and its subsidiaries, another corporation,
partnership or other enterprise. Our general partner is also required to advance
to such persons payments incurred in defending a proceeding to which
indemnification might apply, provided the recipient provides an undertaking
agreeing to repay all such advanced amounts if it is ultimately determined that
he is not entitled to be indemnified. In addition, the Bylaws specifically
provide that the indemnification rights granted thereunder are non-exclusive.
Our general partner has entered into indemnification agreements with
certain of its current and past directors providing for indemnification to the
full extent permitted by the laws of the State of Delaware. These agreements
provide for specific procedures to assure the directors' rights to
indemnification, including procedures for directors to submit claims, for
determination of directors' entitlement to indemnification (including the
allocation of the burden of proof and selection of a reviewing party) and for
enforcement of directors' indemnification rights.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling us or our general
partner pursuant to the foregoing, us and our general partner have been informed
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Reference is made to Exhibit 1.1 hereto, which will contain provisions for
indemnification of us, our general partner and its directors, officers, and any
controlling persons, against certain liabilities for information furnished by
the underwriters and/or agents, as applicable, expressly for use in a prospectus
supplement.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following is a list of exhibits filed as part of this Registration
Statement. Where so indicated by footnote, exhibits which were previously filed
are incorporated by reference.
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<CAPTION>
Exhibit No. Description
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<C> <S>
5.1* Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to
the legality of securities offered hereby.
</TABLE>
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* Filed herewith as an exhibit to this Registration Statement.
# To be filed as an exhibit to a Current Report on Form 8-K.
ITEM 17. UNDERTAKINGS
(A) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement.
i. to include any prospectus required by Section 10(a)(3) of the
Securities Act;
ii. 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
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or in the aggregate, represent a fundamental change in the information
set forth in the registration statement; and
iii. To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in this registration
statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the 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 undertakes that, for 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 Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered herein, 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 in Item 15 above, 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.
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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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, Texas, on June 30, 2000.
EL PASO ENERGY PARTNERS, L.P.
By: El Paso Energy Partners Company,
its general partner
By: /s/ D. MARK LELAND
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Name: D. Mark Leland
Title: Vice President and Controller
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose signatures
appear below, constitute and appoint H. Brent Austin and Britton White, Jr., and
each of them as their true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for them and in their names, places
and steads, in any and all capacities, to sign the Registration Statement to be
filed in connection with the public offering of limited partnership interest of
El Paso Energy Partners, L.P. and any and all amendments (including
post-effective amendments) to the Registration Statement, and any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended, and to file the same, with all exhibits thereto, and the other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as they might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their or his or
her substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated below:
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<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
* Chairman of the Board and June 30, 2000
----------------------------------------------------- Director
William A. Wise
* Chief Executive Officer and June 30, 2000
----------------------------------------------------- Director
Robert G. Phillips
* Chief Financial Officer and June 30, 2000
----------------------------------------------------- Vice President
Keith B. Forman
* President and Director June 30, 2000
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James H. Lytal
* Vice President and Controller June 30, 2000
----------------------------------------------------- (Principal Accounting Officer)
D. Mark Leland
* Executive Vice President and June 30, 2000
----------------------------------------------------- Director
H. Brent Austin
* Director June 30, 2000
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Michael B. Bracy
* Director June 30, 2000
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H. Douglas Church
* Director June 30, 2000
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Malcolm Wallop
*By: /s/ H. BRENT AUSTIN
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H. Brent Austin
Attorney-in-fact
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
5.1* Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P. as to
the legality of securities offered hereby.
</TABLE>
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* Filed herewith as an exhibit to this Registration Statement.
# To be filed as an exhibit to a Current Report on Form 8-K.
