As filed with the Securities and Exchange Commission on September 9, 2004
Registration No. 333-117419
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ENERGY PARTNERS, LTD.
(Exact name of registrant as specified in its charter)
Delaware 72-1409562
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
201 St. Charles Avenue, Suite 3400
New Orleans, Louisiana 70170
(504) 569-1875
(Address, including zip code, and
telephone number,
including area code, of
registrant's principal
executive offices)
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See Table of Additional Registrants
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John H. Peper
Executive Vice President,
General Counsel and Corporate Secretary
Energy Partners, Ltd.
201 St. Charles Avenue, Suite 3400
New Orleans, Louisiana 70170
(504) 569-1875
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copies of communications to:
John Schuster, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
(212) 701-3000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement
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, 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. / /
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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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ADDITIONAL REGISTRANTS
State or Other
Jurisdiction of Primary Standard
Exact Name of Registrant Incorporation or Industrial Classification I.R.S. Employer
as Specified in Its Charter Organization Code Number Identification No.
------------------------------- ------------------- ------------------------- ----------------------
Delaware EPL of Texas, LLC Delaware 1311 None
EPL of Louisiana, L.L.C. Louisiana 1311 None
EPL Pioneer Houston, Inc. Texas 1311 75-2129749
EPL Pipeline, L.L.C. Delaware 1311 72-1471048
Nighthawk, L.L.C. Louisiana 1311 None
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion
Dated September 9, 2004
PRELIMINARY PROSPECTUS
$300,000,000
ENERGY PARTNERS, LTD.
Debt Securities
Common Stock
Preferred Stock
--------------------------
We may offer, from time to time, in one or more series
o unsecured debt securities;
o shares of common stock; and
o shares of preferred stock.
The securities:
o will have a maximum aggregate offering price of $300,000,000;
o will be offered at prices and on terms to be set forth in an
accompanying prospectus supplement;
o may be denominated in U.S. dollars or in other currencies or
currency units;
o may be offered separately or together, or in separate series; and
o may be listed on a national securities exchange, if specified in
an accompanying prospectus supplement.
-------------------------
Our common stock is listed on the New York Stock Exchange under the symbol
"EPL." On September 8, 2004, the last reported sale price of our common stock as
reported on the New York Stock Exchange was $15.60 per share.
-------------------------
This investment involves risks. See the "Risk Factors" section on page 1.
-------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The securities may be sold directly, through agents from time to time or
through underwriters and/or dealers. If any agent of the issuers or any
underwriter is involved in the sale of the securities, the name of the agent or
underwriter and any applicable commission or discount will be set forth in the
accompanying prospectus supplement.
-------------------------
This prospectus may be used to offer and sell securities only if
accompanied by a prospectus supplement. This prospectus is dated [ ], 2004.
-------------------------
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TABLE OF CONTENTS
Page
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OUR COMPANY.......................................................................................................1
RISK FACTORS......................................................................................................1
USE OF PROCEEDS...................................................................................................2
RATIO OF EARNINGS TO FIXED CHARGES................................................................................2
DESCRIPTION OF DEBT SECURITIES....................................................................................3
DESCRIPTION OF CAPITAL STOCK......................................................................................8
PLAN OF DISTRIBUTION.............................................................................................11
LEGAL MATTERS....................................................................................................12
EXPERTS..........................................................................................................12
WHERE YOU CAN FIND MORE INFORMATION..............................................................................12
You should rely only on the information contained in or incorporated by
reference 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 the securities in any jurisdiction 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 respective dates
on the front of those documents.
FORWARD-LOOKING STATEMENTS
All statements other than statements of historical fact contained in this
prospectus, any prospectus supplement, the documents incorporated by reference
in this prospectus and any prospectus supplement and other written or oral
statements made by us or on our behalf are forward-looking statements. When used
herein, the words "anticipates," "expects," "believes," "goals," "intends,"
"plans," or "projects" and similar expressions are intended to identify
forward-looking statements. It is important to note that forward-looking
statements are based on a number of assumptions about future events and are
subject to various risks, uncertainties and other factors that may cause our
actual results to differ materially from the views, beliefs and estimates
expressed or implied in such forward-looking statements. We refer you
specifically to the section entitled "Risk Factors," as well as the disclosure
contained in our latest annual report on Form 10-K and the other documents
incorporated by reference herein. Although we believe that the assumptions on
which any forward-looking statements in this prospectus, any prospectus
supplement and periodic reports filed by us are reasonable, no assurance can be
given that such assumptions will prove correct. All forward-looking statements
in this document are expressly qualified in their entirety by the cautionary
statements in this paragraph and elsewhere in this prospectus, any prospectus
supplement and in the documents incorporated by reference.
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OUR COMPANY
We are an independent oil and natural gas exploration and production
company focused on the shallow to moderate depth waters of the Gulf of Mexico
Shelf. We have concentrated on the Gulf of Mexico Shelf region because that area
provides us with favorable geologic and economic conditions, including multiple
reservoir formations, regional economies of scale, extensive infrastructure and
comprehensive geologic databases. We believe that this region offers a balanced
and expansive array of existing and prospective exploration, exploitation and
development opportunities in both established productive horizons and deeper
geologic formations. As of December 31, 2003, we had estimated proved reserves
of approximately 134.4 billion cubic feet of natural gas and 27.4 million
barrels of oil, or an aggregate of approximately 49.8 million barrels of oil
equivalent, with a present value of estimated pre-tax future net cash flows of
$967.4 million, and a standardized measure of discounted future net cash flows
of $529.4 million.
Since our incorporation in January 1998 by Richard A. Bachmann, our
founder, chairman, president and chief executive officer, we have assembled a
team of geoscientists and management professionals with considerable
region-specific geological, geophysical, technical and operational experience.
We have grown through a combination of exploration, exploitation and development
drilling and multi-year, multi-well drill-to-earn programs, as well as strategic
acquisitions of mature oil and natural gas fields in the Gulf of Mexico Shelf
area, and in particular the acquisition of Hall-Houston Oil Company in early
2002.
Our strategy is to grow our reserves and production through a balanced
investment program with a current focus on low risk exploitation and development
activities in and around our existing fields and moderate risk exploration
activities in the shallow to moderate depth waters of the central region of the
Gulf of Mexico Shelf. A limited amount of our exploration budget each year is
expected to be allocated to higher risk, higher potential exploration prospects
in this region. In pursuing this risk balanced strategy, we also look for
opportunities to diversify our reserve and production base beyond the Gulf of
Mexico Shelf.
Our principal executive offices are located at 201 St. Charles Avenue,
Suite 3400, New Orleans, Louisiana 70170. Our telephone number is (504)
569-1875. We also maintain a web site at www.eplweb.com which contains
information about us, including links to our annual report on Form 10-K,
quarterly reports on Form 10-Q, current reports on Form 8-K and related
amendments. Our web site and the information contained in it and connected to it
shall not be deemed incorporated by reference into this prospectus or any
prospectus supplement.
RISK FACTORS
Investing in our securities involves risk. The prospectus supplement
applicable to each type or series of securities we offer will contain a
discussion of risks applicable to an investment in us and to the particular
types of securities that we are offering under that prospectus supplement. Prior
to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under the heading "Risk Factors" in the
applicable prospectus supplement together with all of the other information
contained in the prospectus supplement or appearing or incorporated by reference
in this prospectus. In addition, please refer to "Items 1 & 2. Business and
Properties--Regulatory Matters" and "--Additional Factors Affecting Business" in
our latest annual report on Form 10-K for additional risk factors. Please also
read "Where You Can Find More Information."
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USE OF PROCEEDS
Unless we set forth other uses of proceeds in the prospectus supplement, we
will use the net proceeds of the sale of the securities described in this
prospectus and any prospectus supplement for general corporate purposes. These
may include the reduction of outstanding indebtedness, working capital
increases, capital expenditures or acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratios of earnings to fixed
charges for the indicated periods.
Six Months Ended
June 30, Years Ended December 31,
2004 2003 2003 2002 2001 2000 1999
Ratio of earnings to fixed charges (1) 5.1x 7.4x 4.0x -- 9.3x -- --
----------------------
(1) For purposes of computing the ratio of earnings to fixed charges, earnings
consist of the sum of income from operations before income taxes and the
cumulative effect of change in accounting method, interest expense and the
portion of the rent expense deemed to represent interest. Fixed charges consist
of interest incurred, whether expensed or capitalized, including amortization of
debt issuance costs, if applicable, and the portion of rent expense deemed to
represent interest. For the years ended December 31, 2002, 2000 and 1999, the
ratio of earnings to fixed charges was less than a one-to-one coverage due to a
deficiency of $17.5 million, $15.7 million and $3.8 million, respectively. For
the indicated periods there were no preferred stock dividends declared or paid
by our subsidiaries.
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DESCRIPTION OF DEBT SECURITIES
The following description of the debt securities sets forth certain general
terms and provisions of the debt securities to which this prospectus and any
prospectus supplement may relate. The particular terms of any series of debt
securities and the extent to which the general provisions may apply to a
particular series of debt securities will be described in a prospectus
supplement relating to that series. For a more detailed description of the terms
of the debt securities, please refer to the indenture, as supplemented by the
applicable supplemental indenture or authorizing resolution, as the case may be,
relating to the issuance of the particular debt securities.
Any senior debt securities will be issued under a senior indenture to be
entered into between us and the trustee named in the senior indenture. Any
subordinated debt securities will be issued under a subordinated indenture to be
entered into between us and the trustee named in the subordinated indenture. As
of August 31, 2004, we had $0.3 million of secured debt outstanding that would
effectively rank senior to any debt securities issued under either indenture and
$150.0 million of debt outstanding that would rank senior to any subordinated
debt securities issued under the subordinated indenture. As used in this
registration statement, the term "indentures" refers to both the senior
indenture and the subordinated indenture. The indentures will be qualified under
the Trust Indenture Act of 1939, as amended. As used in this registration
statement, the term "trustee" refers to either the senior trustee or the
subordinated trustee, as applicable.
The following, as supplemented by an applicable prospectus supplement,
summarizes all material provisions of the senior debt securities, the
subordinated debt securities and the indentures, and is qualified in its
entirety by reference to all of the provisions of the indenture and any
applicable supplemental indenture or authorizing resolution, as the case may be,
relating to a particular series of debt securities, including the definitions
therein of some terms. Except as otherwise indicated, the terms of any senior
indenture and subordinated indenture will be identical.
Because we have included only a summary of the terms of the indentures, we
urge you to read the indentures in full to understand every detail of the terms
of the debt securities. If you would like to read the indentures in their
entirety, see "Where You Can Find More Information."
For purposes of this section, the "issuer" means Energy Partners, Ltd. and
not its subsidiaries.
General
The debt securities will be unsecured obligations of the issuer. The
indentures do not limit the amount of debt securities the issuer may issue.
You should read the prospectus supplement relating to the particular series
of debt securities for the following terms of the offered debt securities:
o the title of the debt securities;
o any limit upon the aggregate principal amount of the debt
securities;
o the dates on which the principal of the debt securities is
payable;
o the interest rate of the debt securities, or the method for
calculating the interest rate, and the date or dates from which
interest will accrue;
o the interest payment dates and the record dates for the interest
payment dates;
o places where payments of the principal and interest, if any, may
be made on the debt securities;
o the terms and conditions upon which the debt securities may be
redeemed at the issuer's option or otherwise;
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o any mandatory or optional sinking fund or analogous provisions;
o the denominations in which the debt securities are issuable;
o whether any portion of the principal amount of such debt
securities is payable upon declaration of the acceleration of the
maturity thereof;
o if other than U.S. dollars, the currency or currency units in
which the debt securities are denominated and/or in which payment
of the principal of (and premium, if any) and/or interest on the
debt securities will or may be payable;
o any deletions, modifications or additions to the events of
default or covenants pertaining to the debt securities;
o whether the debt securities are senior debt securities or
subordinated debt securities and, if subordinated, the terms of
subordination;
o whether the debt securities will be guaranteed by any of the
issuer's subsidiaries and the terms of any guarantees;
o whether the debt securities will be convertible into or
exchangeable for other securities or other property, including
common stock; and
o any other terms (which terms may be inconsistent with the
applicable indenture but shall not violate the Trust Indenture
Act) of the debt securities.
Unless otherwise indicated in the prospectus supplement, the issuer will
issue the debt securities only in fully registered form without coupons in
denominations of $1,000 or any integral multiple thereof. There will not be any
service charge for any registration of transfer or exchange of debt securities,
but the issuer may require payment of a sum sufficient to cover any tax or other
governmental charge.
Covenants
The prospectus supplement relating to the debt securities of any series
will describe any special covenants applicable to that series.
Merger, Amalgamation, Consolidation and Assumption
The issuer may, without the consent of any holders of outstanding debt
securities, consolidate or amalgamate with or merge into, or convey, transfer or
lease its assets substantially as an entirety to, any other corporation,
partnership, limited liability company, unlimited liability company or trust,
provided that:
o the person formed by such consolidation or amalgamation or into
which the issuer is merged or which acquires the issuer's assets
expressly assumes the issuer's obligations on the debt securities
and under the applicable indenture; and
o other conditions described in the applicable indenture are met.
Upon compliance with these provisions, the issuer will be relieved of its
obligations under the applicable indenture and the debt securities.
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Events of Default; Rights on Default
The indentures define an event of default with respect to debt securities
of any series as any of the following events:
o the issuer fails to pay interest for 30 days after it is due;
o the issuer fails to pay principal, and premium, if any, when due;
o the issuer fails to deposit any sinking fund payment when due, if
applicable to the series of debt securities;
o the issuer defaults for 90 days after appropriate notice in the
performance of any other covenant in the debt securities or the
indentures, as applicable; or
o the issuer has an event of bankruptcy, insolvency or
reorganization.
If an event of default occurs with respect to a particular series (but not
all series) of debt securities as a result of a failure to make a principal or
interest payment or because of a failure to perform another covenant applicable
to such series (but not all series) of debt securities, the principal amount of
all outstanding debt securities of that particular series and accrued interest
may be declared due and payable immediately by either:
o the trustee; or
o the holders of at least 25% in principal amount of that series.
If an event of default occurs with respect to all series of debt securities
as a result of a failure to perform a covenant applicable to all series of debt
securities or because of bankruptcy, insolvency or reorganization, the principal
amount of all outstanding debt securities and accrued interest may be declared
due and payable immediately by either:
o the trustee; or
o the holders of at least 25% in principal amount of all
outstanding debt securities (treated as one class) under the
indentures.
The holders of a majority in principal amount of the outstanding debt
securities of any series affected, with each series voting as a separate class,
have the power to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power
conferred on the trustee. However, the direction must not conflict with any rule
of law or the applicable indenture. Before proceeding to exercise any right or
power under the applicable indenture at the direction of the holders, the
applicable trustee will be entitled to receive from the holders reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with their direction.
The issuer must furnish the trustee annually with a statement that, to the
best knowledge of the officers signing the statement, the issuer is not in
default in the performance of the terms of the indentures or, if the officers
know that the issuer is in default, specifying the default. The indentures
require the trustee to give to all holders of outstanding debt securities notice
of any default by the issuer unless the default has been cured or waived.
However, except for a default in the payment of principal of or interest on any
outstanding debt securities, the trustee can withhold notice if the board of
directors, the executive committee or a trust committee of directors or officers
of the trustee in good faith determines that withholding notice is in the
interest of the holders of the outstanding debt securities.
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Defeasance
If any series of debt securities has either:
o become due and payable or is by its terms due and payable within
one year; or
o is to be called for redemption within one year,
the indentures provide that the issuer may discharge substantially all of its
obligations to holders of the series of debt securities that has not already
been delivered to the trustee for cancellation by irrevocably depositing with
the trustee enough funds to pay the principal of and interest on the debt
securities when the series matures.
The issuer can also discharge substantially all of its obligations for any
series of debt securities, including its obligations under the covenants in the
indentures (other than its obligations to pay principal or interest on the debt
securities), by irrevocably depositing with the trustee enough funds to pay the
principal of and interest on the debt securities when the series matures. The
issuer must also obtain an opinion of counsel to the effect that as a result of
the defeasance, holders of that series of debt securities will not recognize
income, gain or loss for federal income tax purposes, and will be subject to
federal income tax on the same amount, in the same manner and at the same time
as would have been the case if such defeasance had not occurred and, in the case
of legal defeasance, such opinion must be based on a U.S. Internal Revenue
Service ruling or a change in U.S. Federal income tax law.
Modification of the Indentures
The indentures provide that the issuer and the trustee may enter into
supplemental indentures without the consent of the holders of debt securities
to:
o secure any of the debt securities;
o evidence the assumption by a successor corporation of the
issuer's obligations as described under "-- Merger, Amalgamation,
Consolidation and Assumption" above;
o add covenants and events of default for the protection of the
holders of all or any particular series of debt securities;
o change or eliminate any of the provisions of an indenture,
provided that any such change or elimination shall become
effective only after there are no debt securities of any series
entitled to the benefit of such provision outstanding;
o establish the forms or terms of debt securities of any series;
o cure any ambiguity or correct any inconsistency in an indenture;
or
o evidence the acceptance of appointment by a successor trustee.
The indentures also contain provisions permitting the issuer and the
trustee to add any provisions to, or change in any manner or eliminate any of
the provisions of, an indenture or modify in any manner the rights of the
holders of such debt securities with the consent of the affected holders of at
least a majority in principal amount of all series of debt securities then
outstanding, with each such series voting as a separate class. However, the
issuer and the trustee may not, without the consent of the affected holder of
each outstanding debt security:
o change the stated maturity of the principal of or any installment
of interest on any debt security;
o reduce the principal amount;
o reduce the rate of interest;
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o change the place of payment where, or the coin or currency in
which, interest is payable;
o impair the right to institute suit for the enforcement of any
payment when due; or
o reduce the percentage in principal amount of debt securities
requiring consent of holders for any modification.
Book-Entry Debt Securities -- Registration, Transfer, Exchange and Payment
The issuer intends to issue each series of its debt securities in
"book-entry" form, represented by one or more global certificates registered in
the name of The Depository Trust Company, New York, New York ("DTC"), or its
nominee. However, the issuer reserves the right to issue debt securities in
certificate form registered in the names of the holders of the debt securities.
Ownership of beneficial interests in the global certificates representing
the particular series of debt securities will be limited to persons who have
accounts with DTC ("participants"), or persons that may hold interests through
participants. DTC will keep on its computerized book-entry and transfer system a
record of the principal amounts of debt securities held in the accounts of the
participants. Participants, in turn, will keep records of the interests of their
clients who have purchased debt securities through them. Beneficial interests in
the global certificates may be shown only on, and may be transferred only
through, records maintained by DTC and its participants. The laws of some states
require that certain purchasers of securities take delivery of the securities
only in certificate form. These laws may limit the ability of holders of
beneficial interests in the global certificates to transfer those interests to
certain persons who might otherwise wish to purchase those interests.
DTC has provided the issuer the following information: DTC is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the United States Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under the provisions of Section 17A of the Securities Exchange Act of
1934. DTC holds securities that its participants deposit with DTC. DTC also
records the settlement among participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
participants' accounts. This eliminates the need to exchange certificates.
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
participant. The rules that apply to DTC and its participants are on file with
the SEC.
DTC is owned by a number of its participants and by the New York Stock
Exchange, Inc., The American Stock Exchange LLC and the National Association of
Securities Dealers, Inc.
Payments of interest and principal will be made to DTC, who in turn will
credit payment to the accounts of its participants. It is DTC's current
practice, upon receipt of any payment of principal or interest, to credit
participants' accounts on the payment date according to their respective
holdings of beneficial interests in the global certificates as shown on DTC's
records. In addition, it is DTC's current practice to assign any consenting or
voting rights to participants whose accounts are credited with certificates on a
record date, by using an omnibus proxy. Payments by participants to holders of
beneficial interests in the global certificates, and voting by participants,
will be governed by the customary practices between the participants and holders
of beneficial interests, as is the case with securities held for the account of
customers registered in "street names."
The issuer, the trustee and the paying agent will treat DTC as the sole
owner of the global certificates for all purposes. Accordingly, the issuer, the
trustee and any paying agent will have no responsibility or liability:
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o for the records relating to beneficial ownership interests in the
global certificates; or
o for the payments of principal and interest due for the accounts
of beneficial holders of interest in the global certificates.
The global certificates representing a series of debt securities may not be
transferred. However, a global certificate may be transferred by DTC to its
nominees or successors.
A series of debt securities represented by global certificates will be
exchangeable for debt securities in certificate form with the same terms in
authorized denominations only if:
o DTC notifies the issuer that it is unwilling or unable to
continue as depositary or if DTC ceases to be a clearing agency
registered under applicable law, and the issuer does not appoint
a successor depositary within 90 days; or
o an event of default has occurred and is continuing.
The issuer has obtained the foregoing information concerning DTC and DTC's
book-entry system from DTC and other sources it believes reliable, and is
relying on the accuracy of this publicly available information.
Applicable Law
The debt securities and the indentures will be governed by and construed in
accordance with the law of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the law of another jurisdiction would be required thereby.
Trustee
The trustee, other than during the occurrence and continuance of an event
of default under an indenture, undertakes to perform only the duties
specifically detailed in the indentures and, upon an event of default under an
indenture, must use the same degree of care as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision, the
trustee is under no obligation to exercise any of the powers given it by the
indentures at the request of any holder of debt securities unless it is offered
reasonable security and indemnity against the costs, expenses and liabilities
that it might incur. The trustee is not required to spend or risk its own money
or otherwise become financially liable while performing its duties unless it
reasonably believes that it will be repaid or receive adequate indemnity.
DESCRIPTION OF CAPITAL STOCK
Our restated certificate of incorporation authorizes the issuance of
50,000,000 shares of common stock, par value $0.01 per share, and 1,700,000
shares of preferred stock, par value $1.00 per share, of which 550,000 shares
are designated Series D Exchangeable Convertible Preferred Stock. The common
stock is our only outstanding class of securities that entitles holders to vote
generally at meetings of our stockholders. Each share of common stock
outstanding is entitled to one vote. As of August 31, 2004, there were
32,984,564 shares of common stock outstanding held by approximately 94 holders
of record, excluding holders whose shares of record are held by brokers. As of
August 31, 2004, there were 346,443 shares of the Series D preferred stock
outstanding held by approximately 14 holders of record. Because the following
description of our capital stock is a summary, it does not contain all the
information that may be important to you. You should read the following
documents for more complete information:
o our restated certificate of incorporation, as amended;
o our amended and restated bylaws, as amended; and
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o the description of our common stock contained in our registration
statement on Form S-3 filed on March 14, 2003, as amended by our
amended and restated bylaws filed as Exhibit 3.1 to our current
report on Form 8-K filed on April 3, 2003.
Common Stock
Holders of common stock are entitled to one vote per share with respect to
each matter presented to our stockholders on which the holders of common stock
are entitled to vote. Except as may be provided in connection with any preferred
stock in a certificate of designation filed pursuant to the Delaware General
Corporation Law or as may otherwise be required by law or our certificate of
incorporation, the common stock is our only capital stock entitled to vote in
the election of directors and on all other matters presented to our
stockholders; provided that, except as required by law or our certificate of
incorporation, holders of common stock are not entitled to vote on any amendment
to our certificate of incorporation that solely relates to the terms of any
outstanding series of preferred stock or the number of shares of such series and
does not affect the number of authorized shares of preferred stock or the terms
of the common stock if the holders of preferred stock are entitled to vote
thereon. The common stock does not have cumulative voting rights.
Subject to the prior rights of holders of preferred stock, if any, holders
of common stock are entitled to receive dividends as may be lawfully declared
from time to time by our board of directors. Upon our liquidation, dissolution
or winding up, whether voluntary or involuntary, holders of common stock will be
entitled to receive such assets as are available for distribution to our
stockholders after there shall have been paid or set apart for payment the full
amounts necessary to satisfy any preferential or participating rights to which
the holders of each outstanding series of preferred stock are entitled by the
express terms of the series.
Preferred Stock
General
Our board is empowered, without approval of holders of our common stock, to
cause shares of preferred stock to be issued from time to time in one or more
series, with the numbers of shares of each series and the terms of the shares of
each series as fixed by our board. Among the specific matters that may be
determined by our board are:
o the designation of each series;
o the number of shares of each series;
o the rights in respect of dividends, if any;
o whether dividends, if any, shall be cumulative or non-cumulative;
o the terms of redemption, if any;
o the rights in the event of any voluntary or involuntary
liquidation, dissolution or winding up of our affairs;
o rights and terms of conversion into or exchange for other
securities or other property, including common stock, if any;
o restrictions on the issuance of shares of the same series or any
other series, if any; and
o voting rights, if any.
-9-
You should read the certificate of designation relating to a particular
series of preferred stock for specific terms.
The issuance of shares of preferred stock, or the issuance of rights to
purchase preferred stock, could be used to discourage an unsolicited acquisition
proposal. For example, a business combination could be impeded by the issuance
of a series of preferred stock containing class voting rights that would enable
the holder or holders of such series to block any such transaction.
Alternatively, a business combination could be facilitated by the issuance of a
series of preferred stock having sufficient voting rights to provide a required
percentage vote of our stockholders. In addition, under some circumstances, the
issuance of preferred stock could adversely affect the voting power and other
rights of the holders of common stock. Although prior to issuing any series of
preferred stock our board is required to make a determination as to whether the
issuance is in the best interests of our stockholders, our board could act in a
manner that would discourage an acquisition attempt or other transaction that
some, or a majority, of our stockholders might believe to be in their best
interests or in which our stockholders might receive a premium for their stock
over prevailing market prices of such stock. Our board does not at present
intend to seek stockholder approval prior to any issuance of currently
authorized preferred stock, unless otherwise required by law or applicable stock
exchange requirements.
Provisions Affecting Control of Energy Partners, Ltd.
Our bylaws provide that, in order for our stockholders to take action by
written consent in lieu of a meeting, the consent be signed by the holders of
shares of capital stock having not less than the greater of (1) the minimum
number of votes that would be necessary to authorize the taking of the action at
a meeting at which the holders of all shares entitled to be voted thereon were
present and voted or (2) 85% of the total number of votes of the then
outstanding shares of our capital stock entitled to vote. Our bylaws also
prohibit stockholders from calling meetings. Our bylaws further establish an
advance notice procedure with regard to business to be brought before an annual
or special meeting of our stockholders and with regard to the nomination, other
than by or at the direction of our board of directors, of candidates for
election as directors. Although our bylaws do not give the board of directors
any power to approve or disapprove stockholder nominations for the election of
directors or proposals for action, they may have the effect of precluding a
contest for the election of directors or the consideration of stockholder
proposals if the proper procedures are not followed. They may also discourage or
deter a third party from conducting a solicitation of proxies to elect its own
slate of directors or to approve its proposal without regard to whether
consideration of such nominees or proposals might be harmful or beneficial to us
and our stockholders. An affirmative vote by the holders of more than two thirds
of our common stock is required to modify the advance notice procedure.
The foregoing provisions of our bylaws and provisions of the Delaware
General Corporation Law could have the following effects, among others:
o delaying, deferring or preventing a change of control of our
company;
o delaying, deferring or preventing the removal of our existing
management;
o deterring potential acquirers from making an offer to our
stockholders; and
o limiting any opportunity of our stockholders to realize premiums
over prevailing market prices of our common stock in connection
with offers by potential acquirors.
This could be the case notwithstanding that a majority of our stockholders
might benefit from such a change of control or offer.
-10-
PLAN OF DISTRIBUTION
We may sell the securities:
o through underwriters or dealers;
o through agents;
o directly to purchasers; or
o through a combination of any such methods of sale.
Any underwriter, dealer or agent may be deemed to be an underwriter within
the meaning of the Securities Act. The prospectus supplement relating to any
offering of securities will set forth its offering terms, including the name or
names of any underwriters, the purchase price of the securities and the proceeds
to us from such sale, any underwriting discounts, commissions and other items
constituting underwriters' compensation, any initial public offering price, and
any underwriting discounts, commissions and other items allowed or reallowed or
paid to dealers, and any securities exchanges on which the securities may be
listed. Only underwriters so named in the prospectus supplement are deemed to be
underwriters in connection with the securities offered hereby.
If underwriters are used in the sale, they will acquire the securities for
their own account and may resell them from time to time in one or more
transactions, at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, or at prices related to such prevailing
market prices, or at negotiated prices. The securities may be offered to the
public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more of such firms. Unless otherwise
set forth in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the offered securities if any are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
The aggregate maximum compensation that members of the NASD or independent
broker-dealers will receive in connection with the sale of any securities
pursuant to this prospectus and the registration statement of which it forms a
part will not be greater than 8% of the gross proceeds of such sale.
Any agent involved in the offer or sale of the securities in respect of
which this prospectus is delivered will be named, and any commissions payable by
us to the agent will be set forth, in the accompanying prospectus supplement.
Unless otherwise indicated in the prospectus supplement, any such agent will be
acting on a best efforts basis for the period of its appointment.
If so indicated in the prospectus supplement, we will authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase securities from us at the public offering price set
forth in the accompanying prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
These contracts will be subject to any conditions set forth in the accompanying
prospectus supplement, and the prospectus supplement will set forth the
commission payable for solicitation of these contracts. The underwriters and
other persons soliciting these contracts will have no responsibility for the
validity or performance of any such contracts.
Securities offered may be a new issue of securities with no established
trading market. Any underwriters to whom or agents through whom these securities
are sold by us for public offering and sale may make a market in these
securities for their own account, but such underwriters or agents will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or the trading market
for any such securities.
-11-
Underwriters, dealers and agents may be entitled, under agreements entered
into with us, to indemnification by us against certain civil liabilities,
including liabilities under the Securities Act or to contribution by us to
payments they may be required to make in respect thereof.
Certain of the underwriters, agents or dealers and their associates may be
customers of, or engage in transactions with and perform services for us in the
ordinary course of business. The prospectus supplement will disclose any
relationships with the named underwriters.
LEGAL MATTERS
The legality of the debt and equity securities offered hereby will be
passed upon for us by Cahill Gordon & Reindel LLP, New York, New York. Certain
legal matters with respect to the guarantees of EPL Pioneer Houston, Inc. will
be passed upon for us by John H. Peper, Executive Vice President, General
Counsel and Corporate Secretary to the Company. Certain legal matters with
respect to the guarantees of each of EPL of Louisiana, L.L.C. and Nighthawk,
L.L.C. will be passed upon for us by Jackson Walker L.L.P.
EXPERTS
The consolidated financial statements of Energy Partners, Ltd. as of
December 31, 2003 and 2002, and for each of the years in the three-year period
ended December 31, 2003, have been incorporated by reference herein and in the
registration statement in reliance upon the reports of KPMG LLP, independent
registered public accounting firm, incorporated by reference herein, and upon
the authority of said firm as experts in accounting and auditing. The audit
report covering the December 31, 2003 consolidated financial statements refers
to a change in the method of accounting for asset retirement obligations.
The estimated reserve data of Netherland, Sewell & Associates, Inc. and
Ryder Scott Company, L.P., independent petroleum engineering consultants,
incorporated by reference in this prospectus and the registration statement of
which this prospectus is a part have been incorporated by reference in reliance
on the authority of said firms as experts in petroleum engineering.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Commission under the Securities Act a registration
statement on Form S-3 with respect to the securities offered by this prospectus.
Each time we offer to sell securities we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information contained in
this prospectus. This prospectus, together with the applicable prospectus
supplement, will include or refer you to all material information relating to
each offering. This prospectus, which constitutes part of the registration
statement, does not contain all the information set forth in the registration
statement or the exhibits that are part of the registration statement, portions
of which are omitted as permitted by the rules and regulations of the
Commission. Statements made in this prospectus and any prospectus supplement
regarding the contents of any contract or other document are summaries of the
material terms of the contract or document. With respect to each contract or
document filed as an exhibit to the registration statement, reference is made to
the corresponding exhibit. For further information pertaining to us and the
securities offered by this prospectus and any prospectus supplement, reference
is made to the registration statement, including the exhibits, copies of which
may be inspected without charge at the public reference facilities of the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Copies
of all or any portion of the registration statement may be obtained from the
Commission at prescribed rates. Information on the public reference facilities
may be obtained by calling the Commission at 1-800-SEC-0330. In addition, the
Commission maintains a web site that contains reports, proxy and information
statements and other information that is filed through the Commission's EDGAR
System. The web site can be accessed at www.sec.gov.
We "incorporate by reference" information that we file with the Commission,
which means that 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 and any prospectus supplement and more recent
information auto-
-12-
matically updates and supersedes more dated information
contained or incorporated by reference in this prospectus. Our Commission file
number is 001-16179.
We have previously filed the following documents with the Commission and
incorporate them by reference into this prospectus:
o our annual report on Form 10-K for the fiscal year ended December
31, 2003;
o our quarterly reports on Form 10-Q for the fiscal quarters ended
March 31 and June 30, 2004;
o our current reports on Form 8-K filed on March 19 and March 23,
2004;
o to the extent incorporated by reference into our annual report on
Form 10-K, our proxy statement for our 2004 Annual Meeting of
Stockholders filed on March 29, 2004; and
o the description of our common stock contained in our registration
statement on Form S-3 filed on March 14, 2003, as amended by our
amended and restated bylaws filed as Exhibit 3.1 to our current
report on Form 8-K filed on April 3, 2003.
All documents subsequently filed by us pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference and a part of this prospectus and any
prospectus supplement from the date such documents are filed. Also, all such
documents filed by us after the date of the initial registration statement of
which this prospectus and any prospectus supplement form a part and prior to
effectiveness of the registration statement shall also be deemed incorporated by
reference and a part of this prospectus and any prospectus supplement from the
date such documents are filed.
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus has been delivered, on the written or
oral request of such person, a copy of any or all documents referred to above
which have been or may be incorporated by reference in this prospectus (not
including exhibits to such incorporated information that are not specifically
incorporated by reference into such information). Requests for such copies
should be directed to us at the following address: Energy Partners, Ltd., 201
St. Charles Avenue, Suite 3400, New Orleans, Louisiana 70170, Attention:
Corporate Secretary, telephone number: (504) 569-1875.
-13-
>
$300,000,000
[LOGO]
--------------------------------------------------------------------------------
PROSPECTUS
--------------------------------------------------------------------------------
Debt Securities
Common Stock
Preferred Stock
[ ], 2004
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Energy Partners, Ltd. ("EPL") estimates that expenses in connection with
the distribution described in this registration statement will be as shown
below.
SEC registration fee.............................................. $ 38,010
Printing expenses................................................. 30,000
Accounting fees and expenses...................................... 25,000
Legal fees and expenses........................................... 50,000
Miscellaneous..................................................... 6,990
----------
Total............................................................. $ 150,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
General Corporation Law
EPL is incorporated under the laws of the State of Delaware. Section 145
("Section 145") of the General Corporation Law of the State of Delaware (the
"DGCL") as the same exists or may hereafter be amended, inter alia, provides
that a Delaware corporation may indemnify any persons who were, are or are
threatened to be made parties 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 such corporation), by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify any persons who are, were or are threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation by reasons of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, provided further that no
indemnification is permitted without judicial approval if the officer, director,
employee or agent is adjudged to be liable to the corporation. Where a present
or former director or officer is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him
against the expenses which such director or officer has actually and reasonably
incurred. Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who 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 or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, arising out of his status as such, whether or not the
corporation would have the power to indemnify him under Section 145.
Certificate of Incorporation and Bylaws
EPL's certificate of incorporation provides for the indemnification of
directors, officers, employees and agents to the fullest extent permitted by the
DGCL, as it now exists or may hereafter be amended. Article VIII of EPL's bylaws
requires indemnification to the full extent permitted under Delaware law as from
time to time in effect. Subject to any restrictions imposed by Delaware law,
EPL's bylaws provide an unconditional right to indemnification for all expense,
liability, and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes, or penalties and amounts paid in settlement) actually and reasonably
incurred or suffered by any person in connection with any actual or threatened
proceeding by reason of the fact that such person is or was serving as a
director or of-
ficer of EPL, or is or was serving at the request of EPL as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, or other enterprise, including service with respect to an
employee benefit plan. EPL's bylaws also provide that it may, by action of its
board of directors, provide indemnification to its agents with the same scope
and effect as the foregoing indemnification of directors and officers. All of
EPL's directors and officers will be covered by insurance policies maintained by
EPL against some liabilities for actions taken in their capacities as such,
including liabilities under the Securities Act.
ITEM 16. EXHIBITS.
The exhibits to this registration statement are listed in the Exhibit Index
on page II-11 of this registration statement, which index is incorporated herein
by reference.
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 of 1933;
(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 or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities being 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 Commission pursuant to Rule 424(b) under the
Securities Act 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
(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 the
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
(ii) of this paragraph do not apply if the Registration Statement is on
Form S-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the Registration State-
II-2
ment 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 of 1933 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
Commission such indemnification is against public policy as expressed in
the Securities Act of 1933 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 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
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 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 of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(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
Commission under section 305(b)(2) of the Act.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New Orleans, State of Louisiana, on September 9,
2004.
ENERGY PARTNERS, LTD.
By: /s/ Richard A. Bachmann
--------------------------------------------------
Richard A. Bachmann
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Richard A. Bachmann Chairman, President and Chief Executive September 9, 2004
---------------------------------------- Officer (Principal Executive Officer
Richard A. Bachmann
/s/ Suzanne V. Baer Executive Vice President and Chief Financial September 9, 2004
---------------------------------------- Officer (Principal Financial and Accounting
Suzanne V. Baer Officer)
* Director September 9, 2004
----------------------------------------
John C. Bumgarner, Jr.
* Director September 9, 2004
----------------------------------------
Jerry D. Carlisle
* Director September 9, 2004
----------------------------------------
Harold D. Carter
* Director September 9, 2004
----------------------------------------
Enoch L. Dawkins
* Director September 9, 2004
----------------------------------------
Robert D. Gershen
* Director September 9, 2004
----------------------------------------
William O. Hiltz
* Director September 9, 2004
----------------------------------------
Eamon M. Kelly
* Director September 9, 2004
----------------------------------------
John G. Phillips
* By: /s/ John H. Peper
------------------------------------------------------------
Attorney-in-fact
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New Orleans, State of Louisiana, on September 9,
2004.
DELAWARE EPL OF TEXAS, LLC
By: /s/ Bruce R. Sidner
------------------------------------------------
Bruce R. Sidner
President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Bruce R. Sidner President and Secretary September 9, 2004
--------------------------------------------
Bruce R. Sidner
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New Orleans, State of Louisiana, on September 9,
2004.
EPL OF LOUISIANA, L.L.C.
By: /s/ Richard A. Bachmann
-------------------------------------------------
Richard A. Bachmann
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this amendment to registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard A. Bachmann Chairman, President and Chief Executive September 9, 2004
-------------------------------------------- Officer (Principal Executive Officer)
Richard A. Bachmann
/s/ Suzanne V. Baer Executive Vice President and Chief September 9, 2004
-------------------------------------------- Financial Officer (Principal Financial and
Suzanne V. Baer Accounting Officer)
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New Orleans, State of Louisiana, on September 9,
2004.
EPL PIONEER HOUSTON, INC.
By: /s/ Richard A. Bachmann
---------------------------------------------------
Richard A. Bachmann
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard A. Bachmann Chairman, President and Chief Executive September 9, 2004
-------------------------------------------- Officer (Principal Executive Officer)
Richard A. Bachmann
/s/ Suzanne V. Baer Executive Vice President and Chief September 9, 2004
-------------------------------------------- Financial Officer (Principal Financial and
Suzanne V. Baer Accounting Officer)
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New Orleans, State of Louisiana, on September 9,
2004.
EPL PIPELINE, L.L.C.
By: /s/ Richard A. Bachmann
-----------------------------------------------
Richard A. Bachmann
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this amendment to registration statement has been signed by the following
persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard A. Bachmann Chairman, President and Chief Executive September 9, 2004
-------------------------------------------- Officer (Principal Executive Officer)
Richard A. Bachmann
/s/ Suzanne V. Baer Executive Vice President and Chief September 9, 2004
-------------------------------------------- Financial Officer (Principal Financial and
Suzanne V. Baer Accounting Officer)
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New Orleans, State of Louisiana, on September 9,
2004.
NIGHTHAWK, L.L.C.
By: /s/ Richard A. Bachmann
-----------------------------------------------------
Richard A. Bachmann
Chairman, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Richard A. Bachmann Chairman, President and Chief Executive September 9, 2004
-------------------------------------------- Officer (Principal Executive Officer)
Richard A. Bachmann
/s/ Suzanne V. Baer Executive Vice President and Chief September 9, 2004
-------------------------------------------- Financial Officer (Principal Financial and
Suzanne V. Baer Accounting Officer)
II-9
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
---------- -------
1.1* Form of Equity Underwriting Agreement.
1.2* Form of Debt Underwriting Agreement.
4.1 Registration Rights Agreement by and between Energy Partners, Ltd., Evercore Capital
Partners L.P., Evercore Capital Partners (NQ) L.P., Evercore Capital Offshore Partners L.P.,
Energy Income Fund L.P. and the Individual Shareholders of the Registrant signatories
thereto dated as of November 17, 1999 (incorporated herein by reference to Amendment No. 1
to the Form S-1 Registration Statement (No. 333-42876) of the Registrant filed with the
Commission on September 21, 2000).
4.2 Amendment One to the Registration Rights Agreement between Energy Partners, Ltd., Evercore
Capital Partners L.P., Evercore Capital Partners (NQ) L.P., Evercore Capital Offshore
Partners L.P., Energy Income Fund, L.P. and certain Individual Shareholders of the
Registrant, effective November 3, 2003 (incorporated herein by reference to the Form 10-Q of
the Registrant for the quarter ended September 30, 2003).
4.3** Form of Senior Indenture of Energy Partners, Ltd.
4.4** Form of Subordinated Indenture of Energy Partners, Ltd.
4.5* Form of Senior Debt Security of Energy Partners, Ltd.
4.6* Form of Subordinated Debt Security of Energy Partners, Ltd.
5.1** Opinion of Cahill Gordon & Reindel LLP regarding the legality of the securities being
registered.
5.2 Opinion of John H. Peper, Executive Vice President, General Counsel and Corporate Secretary
to the Company, New Orleans, Louisiana.
5.3 Opinion of Jackson Walker L.L.P., Houston, Texas.
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of KPMG LLP.
23.2 Consent of Netherland, Sewell & Associates, Inc.
23.3 Consent of Ryder Scott Company, L.P.
23.4** Consent of Cahill Gordon & Reindel LLP (included in Exhibit 5.1).
23.5 Consent of John H. Peper, Executive Vice President, General Counsel and Corporate Secretary
to the Company (included in Exhibit 5.2).
23.6 Consent of Jackson Walker L.L.P. (included in Exhibit 5.3).
II-10
24.1** Powers of Attorney authorizing execution of Registration Statement on Form S-3 on behalf of
certain officers and directors of Energy Partners, Ltd. (included on the signature pages to
this registration statement).
25.1* Statement of Eligibility of Senior Debt Securities Trustee on Form T-1.
25.2* Statement of Eligibility of Subordinated Debt Securities Trustee on Form T-1.
-----------------------
* To be filed either by amendment or as an exhibit to an Exchange Act report
of the Registrant and incorporated herein by reference.
** Previously filed.
II-11
Exhibit 5.2
[John Peper Letterhead]
September 8, 2004
Energy Partners, Ltd.
201 St. Charles Avenue
Suite 3400
New Orleans, Louisiana 70170
Ladies and Gentlemen:
This opinion is being furnished to you in connection with the filing by
Energy Partners, Ltd. (the "Company") and by EPL Pipeline, L.L.C., Nighthawk,
L.L.C., EPL of Louisiana, L.L.C., Delaware EPL of Texas, LLC and EPL Pioneer
Houston, Inc. (collectively, the "Guarantors") of a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), relating to the issuance and sale from time to time,
pursuant to Rule 415 of the rules and regulations promulgated under the Act, of
the following securities and combinations thereof with an aggregate initial
offering price of up to $300,000,000 as shall be designated by the Company: (i)
unsecured senior debt securities of the Company, in one or more series (the
"Senior Debt Securities"), which are to be issued under a senior indenture to be
dated on or about the date of first issuance of Senior Debt Securities
thereunder, the form of which is filed as an exhibit to the Registration
Statement, (ii) unsecured subordinated debt securities of the Company, in one or
more series (the "Subordinated Debt Securities" and, together with the Senior
Debt Securities, the "Debt Securities"), which are to be issued under a
subordinated indenture to be dated on or about the date of first issuance of
Subordinated Debt Securities thereunder, the form of which is filed as an
exhibit to the Registration Statement, (iii) guarantees of the Debt Securities
(the "Guarantees") by the Guarantors, (iv) shares of common stock of the
Company, par value $0.01 per share and (v) shares of preferred stock of the
Company which are to be issued pursuant to a Certificate of Statement,
Designation and Preferences to be adopted by the directors of the Company.
In my capacity as General Counsel of the Company, I have examined original
or photostatic or certified copies of such corporate documents of the Company
and the Company's subsidiaries and such other documents as I have deemed
relevant and necessary as a basis for this opinion.
In connection with the opinions hereinafter set forth, I have assumed
without inquiry (i) the genuineness of all signatures, (ii) the legal capacity
of natural persons, (iii) the authenticity of all documents submitted to me as
originals and (iv) the conformity to authentic
original documents of all documents submitted to me as certified, conformed or
photostatic copies.
Based upon and subject to the foregoing and the further assumptions,
qualifications, exceptions and limitations set forth herein, I am of the opinion
that, as of the date hereof:
(i) EPL Pioneer Houston, Inc. ("Pioneer") has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the State of Texas.
(ii) The Guarantees have been duly authorized by Pioneer.
I am qualified to practice law in Texas, and I express no opinion as to the
laws of any jurisdiction other than the State of Texas. The opinions expressed
herein are rendered only with respect to the constitution, laws and regulations
which are currently in effect and applicable court rulings and orders which have
been published and are generally available.
My legal opinion as to the matters set forth herein is based upon my
professional knowledge and judgment. This opinion is not intended nor shall it
be construed as a guarantee or a warranty that a court considering such matters
would not rule in a manner contrary to the opinions set forth above. No opinion
is expressed with respect to future acts and events or changes in existing law.
I undertake no responsibility to advise you of any changes after the date hereof
in the law or the facts presently in effect that would alter the scope or
substance of the opinions herein expressed. This opinion is limited to the
matters stated herein, and no opinion is implied or may be inferred beyond the
matters expressly stated.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the Registration Statement and the prospectus forming a part
thereof. My consent to such reference does not constitute a consent under
Section 7 of the Act and in consenting to such reference I have not certified
any part of the Registration Statement and do not otherwise come within the
categories of persons whose consent is required under Section 7 or under the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ John H. Peper
--------------------------------
John H. Peper
General Counsel
Exhibit 5.3
[Jackson Walker L.L.P. Letterhead]
September 8, 2004
Energy Partners, Ltd.
201 St. Charles Avenue
Suite 3400
New Orleans, Louisiana 70170
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
As special counsel for Energy Partners, Ltd., a Delaware corporation
("EPL"), and EPL of Louisiana, L.L.C. and Nighthawk, L.L.C., each a Louisiana
limited liability company (each a "Louisiana Guarantor" and collectively the
"Louisiana Guarantors"), we furnish this opinion in connection with the filing
with the Securities and Exchange Commission by EPL, the Louisiana Guarantors and
other registrants of a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the issuance and sale from time to time,
pursuant to Rule 415 of the rules and regulations promulgated under the Act, of
the following securities and combinations thereof, with an aggregate initial
offering price of up to $300,000,000, as shall be designated by EPL: (i)
unsecured senior debt securities of EPL, in one or more series (the "Senior Debt
Securities"), which are to be issued under a senior indenture to be dated on or
about the date of first issuance of Senior Debt Securities thereunder, the form
of which is filed as an exhibit to the Registration Statement, (ii) unsecured
subordinated debt securities of EPL, in one or more series (the "Subordinated
Debt Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), which are to be issued under a subordinated indenture to be dated
on or about the date of first issuance of Subordinated Debt Securities
thereunder, the form of which is filed as an exhibit to the Registration
Statement, (iii) guarantees of the Debt Securities (the "Guarantees") by the
Louisiana Guarantors and certain other subsidiaries of EPL, (iv) shares of
common stock of EPL, par value $0.01 per share and (v) shares of preferred stock
of EPL which are to be issued pursuant to a Certificate of Statement,
Designation and Preferences to be adopted by the directors of EPL.
In connection with issuing this opinion, we have examined (a) originals or
copies, certified by the Secretary of the relevant Louisiana Guarantor as being
true and correct, of the organizational and governing documents of each of the
Louisiana Guarantors, (b) copies, certified by the Secretary of the relevant
Louisiana Guarantor as being true and correct, of resolutions adopted by the
Managers of each of the Louisiana Guarantors in connection with the transactions
contemplated in the Registration Statement and adopted and confirmed by the
Company as the sole member of each of the Louisiana Guarantors, and (c) such
certificates of public officials and other documents and records as we have
deemed necessary as the basis for
the opinions expressed herein. As to various questions of fact material to our
opinions, we have relied, to the extent we have deemed appropriate and to the
extent that we do not have knowledge of contrary facts, upon certificates of
officers of the Louisiana Guarantors delivered to us in connection with the
issuance of this opinion.
In our examinations, we have assumed:
(a) the authenticity of original documents and the genuineness of all
signatures;
(b) the conformity to the originals of all documents submitted to us
as copies;
(c) the truth, accuracy and completeness of the information,
representation and warranties contained in the records, documents,
instruments and certificates we have reviewed; and
(d) the due authorization, execution and delivery of each document
examined by us by each party thereto other than the Louisiana Guarantors.
Based solely on our review of the documents listed above and the
assumptions set forth herein, and having regard for such legal considerations as
we have deemed relevant, we are of the opinion, subject to the qualifications
and limitations set forth below, that:
1. Each of the Louisiana Guarantors has been duly organized and is validly
existing as a limited liability company under the Louisiana Limited Liability
Company Law.
2. The Guarantee to be provided by each Louisiana Guarantor pursuant to the
Registration Statement has been duly authorized by each Louisiana Guarantor.
The opinions expressed herein are as of the date hereof. We assume no, and
expressly disclaim any, obligation to update or supplement such opinions to
reflect any facts or circumstances which may hereafter come to our attention or
any changes in laws which may hereafter occur.
We limit the opinions expressed above in all respects to the federal laws
of the United States of America and the Louisiana Limited Liability Company Law,
La.Rev.Civ. Stat.12:1301 et seq., each as in effect on the date hereof, and
express no opinion as to any other laws. The scope of this opinion is limited to
the issues specifically considered herein, and no further or more expansive
opinion is to be implied from such opinions expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Registration Statement and the prospectus forming a part
thereof. Our consent to such reference does not constitute a consent under
Section 7 of the Act and in consenting to such reference we have not certified
any part of the Registration Statement and do not otherwise
come within the categories of persons whose consent is required under Section 7
or under the rules and regulations of the Securities and Exchange Commission
thereunder. Except for the furnishing of this opinion, we confirm that we have
not participated in the preparation of the Registration Statement or the
prospectus forming a part thereof.
Very truly yours,
/s/ Jackson Walker L.L.P.
DGD/JRW/sks
Exhibit 12.1
Computation of Ratio of Earnings to Fixed Charges
Six Months Ended
June 30, Years Ended December 31,
--------------------- -------------------------------------------------------------
2004 2003 2003 2002 2001 2000 1999
-------- --------- ------- -------- -------- -------- ---------
Earnings:
Income before income taxes $ 34,793 $ 30,669 $ 48,766 $ (13,481) $ 19,076 $ (7,782) $ (3,470)
and before cumulative
effect of change in
accounting principle
Fixed charges 8,287 4,645 14,982 11,791 2,312 15,549 3,379
Dividends (776) (835) (4,050) (4,019) -- (7,895) --
Interest capitalized -- -- -- -- -- -- (302)
-------- --------- ------- -------- -------- -------- ---------
42,304 34,479 59,698 (5,709) 21,388 (128) (393)
Fixed charges:
Interest expense 7,160 3,429 10,174 6,988 1,916 7,438 2,947
Dividends 776 835 4,050 4,019 -- 7,895 --
Interest capitalized -- -- -- -- -- -- 302
Estimate of interest in
rent expense 351 381 758 784 396 216 130
-------- --------- ------- -------- -------- -------- ---------
$ 8,287 $ 4,645 $ 14,982 $ 11,791 $ 2,312 $ 15,549 $ 3,379
Ratio of earnings to fixed
charges 5.10 7.42 3.98 --(1) 9.25 --(1) --(1)
----------------------
(1) For the years ended December 31, 2002, 2000 and 1999, the ratio of
earnings to fixed charges was less than a one-to-one coverage due to a
deficiency of $17.5 million, $15.7 million and $13.8 million,
respectively. For the indicated periods there were no preferred stock
dividends declared or paid by our subsidiaries.
Exhibit 23.1
[KPMG Letterhead]
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Energy Partners, Ltd.:
We consent to the use of our reports dated February 9, 2004, with respect to the
consolidated balance sheets of Energy Partners, Ltd. as of December 31, 2003 and
2002, and the related consolidated statements of operations, changes in
stockholders' equity, and cash flows, for each of the years in the three-year
period ended December 31, 2003, incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
Our report for the year ended December 31, 2003, refers to a change in the
method of accounting for asset retirement obligations.
KPMG LLP
New Orleans, Louisiana
September 3, 2004
Exhibit 23.2
[NETHERLAND, SEWELL & ASSOCIATES, INC. LOGO]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the filing of this Consent as an exhibit to the
Registration Statement on Form S-3 of Energy Partners, Ltd. to be filed with the
Securities and Exchange Commission on or about September 7, 2004. We also
consent to the use of our name there in and the inclusion of or reference to our
reports effective January 1, 2002, January 1, 2003 and January 1, 2004 in the
Registration Statement, and to the reference to our firm under the heading
"Experts" in the prospectus.
NETHERLAND, SEWELL & ASSOCIATES, INC.
By: /s/ FREDERIC D. SEWELL
------------------------------------
Frederic D. Sewell
Chairman and Chief Executive Officer
Dallas, Texas
September 2, 2004
Exhibit 23.3
[Ryder Scott Company, L.P. Letterhead]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the references to our firm and to the use of or
reference to our report effective December 31, 2003 in the Energy Partners, Ltd.
Registration Statement on Form S-3 and related prospectus.
RYDER SCOTT COMPANY, L.P.
Houston, Texas
September 7, 2004