AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON September 3, 2014
Registration No. 333-198352
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
Form S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONE MIDSTREAM PARTNERS LP
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 4922 | 47-1054194 | ||
(State or Other Jurisdiction of Incorporation or Organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
1000 CONSOL Energy Drive
Canonsburg, Pennsylvania 15317
(724) 485-4000
(Address, Including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
David M. Khani
Chief Financial Officer
1000 CONSOL Energy Drive
Canonsburg, Pennsylvania 15317
(724) 485-4000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
William N. Finnegan IV Brett E. Braden Latham & Watkins LLP 811 Main Street, Suite 3700 Houston, Texas 77002 (713) 546-5400 | G. Michael O’Leary George Vlahakos Andrews Kurth LLP 600 Travis, Suite 4200 Houston, Texas 77002 (713) 220-4200 | David P. Oelman Jeffery K. Malonson Vinson & Elkins L.L.P. 1001 Fannin, Suite 2500 Houston, Texas 77002 (713) 758-2222 |
Approximate date of commencement of proposed sale to the public:As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, 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 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. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” inRule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer ¨ | Accelerated filer | ¨ | ||||
| Non-accelerated filer x | (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
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 Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
Explanatory Note
This Amendment No. 1 to CONE Midstream Partners LP’s Registration Statement on Form S-1 (Registration No. 333-198352) (the “Registration Statement”) is being filed for the purpose of filing Exhibits 3.2, 5.1, 8.1, 10.3, 10.6, 10.7, 10.8, 10.9 and 10.10 to the Registration Statement. No changes or additions are being made hereby to the Prospectus constituting Part I of the Registration Statement (not included herein) or to Items 13, 14, 15 or 17 of Part II of the Registration Statement.
Part II
Information Not Required in Prospectus
Item 13. Other Expenses of Issuance and Distribution
Set forth below are the expenses (other than underwriting discounts and commissions and the structuring fee) expected to be incurred in connection with the issuance and distribution of the securities registered hereby. With the exception of the SEC registration fee, the FINRA filing fee and the NYSE listing fee, the amounts set forth below are estimates.
SEC registration fee | $ | 45,080 | ||
FINRA filing fee | 53,000 | |||
NYSE listing fee | * | |||
Printing and engraving expenses | * | |||
Fees and expenses of legal counsel | * | |||
Accounting fees and expenses | * | |||
Transfer agent and registrar fees | * | |||
Miscellaneous | * | |||
|
| |||
Total | $ | * | ||
|
|
| * | To be filed by amendment. |
Item 14. Indemnification of Directors and Officers
The section of the prospectus entitled “Our Partnership Agreement — Indemnification” discloses that we will generally indemnify officers, directors and affiliates of the general partner to the fullest extent permitted by the law against all losses, claims, damages or similar events and is incorporated herein by this reference. Reference is also made to the underwriting agreement to be filed as an exhibit to this registration statement in which CONE Midstream Partners LP and certain of its affiliates will agree to indemnify the underwriters against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that may be required to be made in respect of these liabilities. Subject to any terms, conditions or restrictions set forth in the partnership agreement, Section 17-108 of the Delaware Act empowers a Delaware limited partnership to indemnify and hold harmless any partner or other persons from and against all claims and demands whatsoever.
Item 15. Recent Sales of Unregistered Securities
On May 30, 2014, in connection with the formation of the partnership, CONE Midstream Partners LP issued to (i) CONE Midstream GP LLC a 2% general partner interest in the partnership for $140 and (ii) CONE Gathering LLC a 98% limited partner interest in the partnership for $6,860 in an offering exempt from registration under Section 4(2) of the Securities Act. There have been no other sales of unregistered securities within the past three years.
Item 16. Exhibits
The following documents are filed as exhibits to this registration statement:
Exhibit | Description | |
| 1.1* | Form of Underwriting Agreement (including form of Lock-Up Agreement) | |
| 3.1† | Certificate of Limited Partnership of CONE Midstream Partners LP | |
| 3.2 | Form of First Amended and Restated Agreement of Limited Partnership of CONE Midstream Partners LP | |
II-1
Exhibit | Description | |
| 5.1 | Form of Opinion of Latham & Watkins LLP as to the legality of the securities being registered | |
| 8.1 | Form of Opinion of Latham & Watkins LLP relating to tax matters | |
| 10.1† | Form of Contribution, Conveyance and Assumption Agreement | |
| 10.2†# | Form of CONE Midstream Partners LP 2014 Long-Term Incentive Plan | |
| 10.3 | Form of Omnibus Agreement | |
| 10.4* | Form of Operational Services Agreement | |
| 10.5* | Form of Credit Agreement | |
| 10.6 | Form of Gathering Agreement by and between CNX Gas Company LLC, as Shipper, and CONE Midstream Partners LP, as Gatherer | |
| 10.7 | Form of Gathering Agreement by and between Noble Energy, Inc., as Shipper, and CONE Midstream Partners LP, as Gatherer | |
| 10.8 | Form of Agreement of Limited Partnership of CONE Midstream DevCo I LP | |
| 10.9 | Form of Agreement of Limited Partnership of CONE Midstream DevCo II LP | |
| 10.10 | Form of Agreement of Limited Partnership of CONE Midstream DevCo III LP | |
| 21.1† | List of Subsidiaries of CONE Midstream Partners LP | |
| 23.1† | Consent of Ernst & Young LLP | |
| 23.2* | Consent of Latham & Watkins LLP (contained in Exhibit 5.1) | |
| 23.3* | Consent of Latham & Watkins LLP (contained in Exhibit 8.1) | |
| 24.1† | Powers of Attorney (contained on the signature page to this Registration Statement) | |
| * | To be filed by amendment. |
| † | Previously filed. |
| # | Compensatory plan, contract or arrangement. |
Item 17. Undertakings
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that,
(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
II-2
(3) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(a) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(b) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use;
(c) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(d) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(e) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
The undersigned registrant undertakes to send to each common unitholder, at least on an annual basis, a detailed statement of any transactions with CONE Midstream GP LLC, our general partner, or its affiliates and of fees, commissions, compensation and other benefits paid, or accrued to CONE Midstream GP LLC or its affiliates for the fiscal year completed, showing the amount paid or accrued to each recipient and the services performed.
The registrant undertakes to provide to the common unitholders the financial statements required by Form 10-K for the first full fiscal year of operations of the registrant.
II-3
Signatures
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Canonsburg, State of Pennsylvania, on September 3, 2014.
| CONE Midstream Partners LP | ||
| By: | CONE Midstream GP LLC, its General Partner | |
By: | /s/ John T. Lewis | |
John T. Lewis Chief Executive Officer | ||
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 indicated on September 3, 2014.
Signature | Title | |
/s/ John T. Lewis | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | |
| John T. Lewis | ||
/s/ David M. Khani | Chief Financial Officer and Director (Principal Financial Officer) | |
| David M. Khani | ||
* | Chief Accounting Officer (Principal Accounting Officer) | |
C. Kristopher Hagedorn | ||
* | Director | |
| Kenneth M. Fisher | ||
* | Director | |
| Stephen W. Johnson | ||
| * | David M. Khani hereby signs this Amendment No. 1 to the Registration Statement on Form S-1 of CONE Midstream Partners LP on behalf of the indicated persons for whom he is attorney-in-fact, pursuant to powers of attorney previously filed with the Securities and Exchange Commission as Exhibit 24.1 to the Registration Statement on August 25, 2014. |
| By: | /s/ David M. Khani | |
| Attorney-in-Fact | ||
Exhibit Index
Exhibit | Description | |
| 1.1* | Form of Underwriting Agreement (including form of Lock-Up Agreement) | |
| 3.1† | Certificate of Limited Partnership of CONE Midstream Partners LP | |
| 3.2 | Form of First Amended and Restated Agreement of Limited Partnership of CONE Midstream Partners LP | |
| 5.1 | Form of Opinion of Latham & Watkins LLP as to the legality of the securities being registered | |
| 8.1 | Form of Opinion of Latham & Watkins LLP relating to tax matters | |
| 10.1† | Form of Contribution, Conveyance and Assumption Agreement | |
| 10.2†# | Form of CONE Midstream Partners LP 2014 Long-Term Incentive Plan | |
| 10.3 | Form of Omnibus Agreement | |
| 10.4* | Form of Operational Services Agreement | |
| 10.5* | Form of Credit Agreement | |
| 10.6 | Form of Gathering Agreement by and between CNX Gas Company LLC, as Shipper, and CONE Midstream Partners LP, as Gatherer | |
| 10.7 | Form of Gathering Agreement by and between Noble Energy, Inc., as Shipper, and CONE Midstream Partners LP, as Gatherer | |
| 10.8 | Form of Agreement of Limited Partnership of CONE Midstream DevCo I LP | |
| 10.9 | Form of Agreement of Limited Partnership of CONE Midstream DevCo II LP | |
| 10.10 | Form of Agreement of Limited Partnership of CONE Midstream DevCo III LP | |
| 21.1† | List of Subsidiaries of CONE Midstream Partners LP | |
| 23.1† | Consent of Ernst & Young LLP | |
| 23.2* | Consent of Latham & Watkins LLP (contained in Exhibit 5.1) | |
| 23.3* | Consent of Latham & Watkins LLP (contained in Exhibit 8.1) | |
| 24.1† | Powers of Attorney (contained on the signature page to this Registration Statement) | |
| * | To be filed by amendment. |
| † | Previously filed. |
| # | Compensatory plan, contract or arrangement. |