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Registration No. 333-76911
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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MEWBOURNE ENERGY PARTNERS 99-A, L.P.
MEWBOURNE ENERGY PARTNERS 00-A, L.P.
(Exact name of registrants)
DELAWARE 1311
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
3901 S. BROADWAY
TYLER, TEXAS 75701
(903) 561-2900
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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COPIES TO:
CURTIS W. MEWBOURNE A. WINSTON OXLEY
MEWBOURNE DEVELOPMENT CORPORATION KEEFE M. BERNSTEIN
3901 S. BROADWAY VINSON & ELKINS L.L.P.
TYLER, TEXAS 75701 3700 TRAMMELL CROW CENTER
(903) 561-2900 2001 ROSS AVENUE
(Name, address, including zip code, and telephone number, DALLAS, TEXAS 75201
including area code, of agent for service) (214) 220-7700
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this Registration Statement.
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. [X]
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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, AS AMENDED, 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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P R O S P E C T U S
MEWBOURNE ENERGY PARTNERS
99-00 DRILLING PROGRAMS
(PER PARTNERSHIP MINIMUM OFFERING AMOUNT)
$1,000,000 (1,000 GENERAL AND/OR LIMITED PARTNER
INTERESTS AT $1,000 PER INTEREST)
Minimum Purchase: 5 Interests ($5,000)
We are offering to qualified investors during 1999 and 2000 an
aggregate of up to 4,000 ($4,000,000) limited partner interests and 16,000
($16,000,000) general partner interests in a series of two Delaware limited
partnerships formed or to be formed by us. We will sell these interests to
investors for $1,000 each. The minimum number of interests that we will offer
for any one partnership is 1,000 and the minimum subscription in any one
partnership is five interests ($5,000). The maximum number of interests that we
will offer for any one partnership is 10,000. Therefore, the minimum offering
amount for any one partnership will be $1,000,000 and the maximum offering
amount for any one partnership will be $10,000,000. If we accept your
subscription for a partnership, you may elect to be admitted as a general
partner or limited partner in the partnership you have invested in. Each
partnership will participate with us and our affiliate, Mewbourne Oil Company,
in a drilling program. The primary objective of each drilling program will be to
establish oil and gas reserves by drilling wells in the Permian and Anadarko
Basins.
See "Risk Factors" beginning on page on page 4 for a discussion of
factors that you should consider before you invest in either partnership being
sold with this prospectus. These "risk factors" include but are not limited to:
o Drilling to establish productive oil and natural gas properties is
highly risky and includes the possibility of a total loss of one's
investment.
o If you purchase a general partner interest you may be subject to
personal unlimited liability for that partnership's obligations.
o An investment in a partnership is illiquid. You may not be able to sell
any interests you purchase because there will be no market for them.
Per Partnership
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Per Interest Total Minimum Total Maximum
------------ ------------- -------------
Public Price ................................ $ 1,000 $ 1,000,000 $10,000,000
Underwriting Discounts ...................... 85 85,000 850,000
Proceeds Available to a partnership(1) ...... 1,000 1,000,000 10,000,000
(1) The managing partner, or an affiliate of the managing partner, shall
pay all Organization and Offering Expenses, Sales Commissions and Due
Diligence Fees on behalf of each partnership.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Soliciting dealers will be soliciting subscriptions on a
"minimum/maximum best efforts" basis. The soliciting dealers must sell the
minimum number of interests offered ($1,000,000) if any interests are sold and
are required to use only their best efforts to sell the maximum number of
securities offered ($10,000,000).
The date of this prospectus is , 1999.
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(continued from previous page)
FOR CONNECTICUT RESIDENTS
INVESTMENT IN THE SECURITIES DESCRIBED HEREIN INVOLVES A HIGH DEGREE OF RISK,
AND ONLY THOSE PERSONS WHO ARE ABLE TO BEAR THE FINANCIAL RISKS SHOULD CONSIDER
PURCHASING SECURITIES.
FOR NEW JERSEY RESIDENTS
FOR NEW YORK RESIDENTS
NEITHER THE ATTORNEY GENERAL OF THE STATE OF NEW YORK NOR THE ATTORNEY GENERAL
OF THE STATE OF NEW JERSEY NOR THE BUREAU OF SECURITIES OF THE STATE OF NEW
JERSEY HAS PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
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TABLE OF CONTENTS
Page
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SUMMARY OF OFFERING..........................................................................................1
The Partnership...........................................................................................1
Investment Objectives.....................................................................................1
Proposed Activities.......................................................................................2
Application of Proceeds...................................................................................2
Investment as a Limited Partner or General Partner .......................................................2
Liability of General Partners..........................................................................2
Liability of Limited Partners..........................................................................3
How to Subscribe.......................................................................................3
RISK FACTORS.................................................................................................4
Particular Risks Relating to the Interests................................................................4
Liability of Limited Partners..........................................................................4
Liability of Investor General Partners.................................................................4
Liability of Joint Working Interest Owners.............................................................4
Possibility of Reduction or Unavailability of
Insurance Coverage of a Partnership................................................................4
Sole Reliance on Us for Management of a
Partnership........................................................................................5
Prospects Not Yet Identified or Selected; No
Opportunity to Evaluate Prospects...................................................................5
Concentration of Investment Risks......................................................................5
Ownership of Interests in a Partnership by Our
Affiliates..........................................................................................5
Additional Partnership Financing.......................................................................6
Uncertainty of Partnership Cash Distributions..........................................................6
Conflicts of Interest of Managing Partner.............................................................6
Inside Board of Directors and Other Family
Relationships of Managing Partner and
Program Director...................................................................................7
Limitations on the Fiduciary Obligations of the
Managing Partner and the Managing
Partner's Responsibility to Determine the
Application of the Limitations......................................................................7
Partnership's Joint Activities With Others..........................................................7
Lack of Liquidity for Investors.....................................................................8
Indemnification of Managing
Partner and its Affiliates..........................................................................8
Investor's Lack of Substantial
Voting Rights.......................................................................................8
Investor's Lack of Appraisal
Rights..............................................................................................8
Limited Ability to Remove Managing
Partner and Difficulty in Finding
a Successor Managing Partner........................................................................8
Withdrawal of Partners.................................................................................9
Dissolution of a Partnership and
Termination of the Drilling
Program.............................................................................................9
Ability of the Managing Partner to
Cause Dissolution of a
Partnership and the Related
Drilling Program....................................................................................9
Unauthorized Acts of General
Partners Could Be Binding
Against the Partnership............................................................................10
General Risks Relating to Oil and
Natural Gas Operations................................................................................10
Loss of Investment Due to
Speculative Nature of Oil and
Gas Activities.....................................................................................10
The Partnerships and the General
Partners Could be Liable for
Environmental Hazards..............................................................................10
Return on Investment is
Dependent on Future Prices,
Supply and Demand for Oil and
Gas...............................................................................................10
Government Regulation of a
Partnership's Activities...........................................................................11
Tax Risks................................................................................................11
General...............................................................................................11
Partnership Classification for Tax Purposes; No
IRS Ruling Sought..................................................................................11
Allocations...........................................................................................11
Passive Activity Limitations..........................................................................12
Considerations for Tax-Exempt Investors...............................................................12
Tax Shelter Registration..............................................................................12
Current Tax Deductions................................................................................12
Conversion of General Partner Interests...............................................................13
Tax Liabilities in Excess of Cash Distributions.......................................................13
Risks of Borrowings...................................................................................13
Percentage Depletion..................................................................................13
Farmouts and Backin Interests.........................................................................14
Recapture.............................................................................................14
Audits................................................................................................14
Changes in Federal Income Tax Laws....................................................................14
Significance of Tax Aspects...........................................................................14
DEFINITIONS.................................................................................................16
TERMS OF THE OFFERING.......................................................................................20
General..................................................................................................20
Subscription Refunds.....................................................................................20
Subscription Period......................................................................................21
Suitability Standards....................................................................................21
General...............................................................................................21
Minimum Suitability Standards.........................................................................21
Additional Suitability Standards......................................................................22
Additional Requirements...............................................................................23
Subscription Procedure...................................................................................24
Conversion of General Partner Interests..................................................................25
Right of Presentment.....................................................................................25
(i)
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Page
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ADDITIONAL FINANCING........................................................................................27
General..................................................................................................27
Limitation on Borrowings.................................................................................27
PLAN OF DISTRIBUTION........................................................................................28
INVESTMENT OBJECTIVES.......................................................................................29
PROPOSED ACTIVITIES.........................................................................................29
Development Policy.......................................................................................30
Area of Geographic Concentration.........................................................................30
Prospect Evaluation......................................................................................30
Cost Estimates...........................................................................................31
Acquisition of Leases....................................................................................31
Transactions with Affiliates.............................................................................31
Sale of Leases to a Partnership.......................................................................31
Purchase of Leases from a
Partnership........................................................................................32
Participation by Mr. Mewbourne........................................................................33
Farmouts.................................................................................................33
Operations...............................................................................................34
Title to Partnership Properties..........................................................................35
Insurance................................................................................................36
The Managing Partner's Policy
Regarding Roll-Up Transactions........................................................................38
APPLICATION OF PROCEEDS.....................................................................................39
PARTICIPATION IN COSTS AND REVENUES.........................................................................41
Costs and Revenues.......................................................................................41
Distributions............................................................................................41
Capital Accounts.........................................................................................42
Allocations of Federal Income Tax Items..................................................................42
Proportionate Interests of Partners......................................................................42
COMPENSATION AND REIMBURSEMENT..............................................................................43
Partnership and Program Interest.........................................................................43
Lease and Equipment Purchases from
Mewbourne.............................................................................................43
ESTIMATED DRILLING PROGRAM EXPENSES.........................................................................45
Contracts with Mewbourne and Its
Affiliates............................................................................................45
Compensation as Operator.................................................................................45
MANAGEMENT..................................................................................................46
OWNERSHIP STRUCTURE OF MEWBOURNE
COMPANIES................................................................................................47
Officers, Directors and Key Employees of the
Managing Partner and the Drilling Program
Manager...............................................................................................48
Key Employees............................................................................................49
Compensation.............................................................................................50
Executive Officer........................................................................................50
Cash Compensation to Executive Officer................................................................50
Executive Officer Compensation Pursuant to
Plans..............................................................................................51
Non-Cash Compensation of Executive Officer............................................................51
Certain Transactions.....................................................................................52
Participation in Drilling Program Activities..........................................................52
CONFLICTS OF INTEREST.......................................................................................52
Fiduciary Responsibility of the Managing Partner.........................................................52
Limitations on the Fiduciary Obligations of the
Managing Partner and the Managing Partner's
Responsibility to Determine the Application
of the Limitations.................................................................................53
Farmouts.................................................................................................54
Purchase of Leases from a Partnership....................................................................55
Sale of Leases to a Partnership..........................................................................55
Adjacent Acreage.........................................................................................56
Other Activities.........................................................................................56
Contracts with Mewbourne and Affiliates..................................................................57
Mewbourne Oil Company as Operator........................................................................57
Ownership of Interests by the Managing Partner or
any Affiliates........................................................................................57
PRIOR ACTIVITIES............................................................................................58
Prior Partnerships.......................................................................................58
Past Compensation........................................................................................60
Previous Drilling Activities.............................................................................62
Payout and Net Cash Tables...............................................................................63
Tax Deductions and Tax Credits...........................................................................67
Reserves and Future Net Revenues of
Prior Programs........................................................................................69
TAX ASPECTS.................................................................................................71
Opinion of Counsel.......................................................................................71
Partnership Taxation.....................................................................................73
General...............................................................................................73
Partnership Classification............................................................................73
Taxation of Partners..................................................................................75
Allocations...........................................................................................75
Elections and Returns.................................................................................77
Determinations of Partnership Items
at Partnership Level...............................................................................77
Administrative Costs..................................................................................78
Conversion of General Partner
Interests..........................................................................................78
Special Features of Oil and Gas Taxation.................................................................78
Lease Acquisition Costs...............................................................................78
Geophysical Costs.....................................................................................79
(ii)
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Page
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Operating and Administrative Costs....................................................................79
Intangible Drilling Costs.............................................................................79
Depreciation..........................................................................................79
Depletion.............................................................................................80
Passive Activity Loss Limitations.....................................................................80
Limitations on Interest Deductions....................................................................82
For Profit Limitation.................................................................................83
Basis and At Risk Limitations.........................................................................83
Sale of Property......................................................................................84
Termination of a Partnership..........................................................................84
Sale of Interests.....................................................................................85
Farmouts and Backin Interests.........................................................................86
General Tax Provisions...................................................................................86
Other Tax Consequences...................................................................................86
Alternative Minimum Tax...............................................................................86
Tax Shelter Registration..............................................................................87
Changes in Federal Income Tax Laws....................................................................87
Compliance Provisions.................................................................................87
Consistency Requirements..............................................................................88
Nominees..............................................................................................88
Social Security Benefits; Self-Employment Tax.........................................................88
Investment by Tax-Exempt Entities.....................................................................88
State Law Tax Aspects.................................................................................89
Anticipated Federal Income Tax Deductions................................................................89
Individual Tax Advice Should be Sought...................................................................89
COMPETITION, MARKETS AND REGULATION.........................................................................90
Competition..............................................................................................90
Markets For Sale Of Production...........................................................................90
Regulation Of Production.................................................................................91
Natural Gas Prices.......................................................................................91
Oil and Liquid Hydrocarbon Price Controls................................................................91
Possible Legislation.....................................................................................91
Regulation of the Environment............................................................................91
LIABILITY OF GENERAL AND LIMITED PARTNERS...................................................................92
General Partners.........................................................................................92
Limited Partners.........................................................................................92
SUMMARY OF PARTNERSHIP AGREEMENT AND
DRILLING PROGRAM AGREEMENT...............................................................................94
Term.....................................................................................................94
Rights and Powers of Partners............................................................................94
General and Limited Partners..........................................................................94
Limited Partners......................................................................................95
General Partners......................................................................................95
Rights and Powers of the Managing Partner................................................................96
Indemnification of the Managing Partner and its Affiliates...............................................96
Right of Presentment.....................................................................................97
Assignability of Interests...............................................................................97
Removal or Withdrawal....................................................................................98
Dissolution, Liquidation and Termination.................................................................98
Reconstitution of a Partnership.........................................................................100
Amendments..............................................................................................101
Reports to Partners.....................................................................................101
Access to List of General and Limited Partners..........................................................101
Power of Attorney.......................................................................................102
LEGAL OPINIONS.............................................................................................102
EXPERTS....................................................................................................103
WHERE YOU CAN FIND MORE INFORMATION........................................................................103
Revenue recognition...............................................................................F1 - 3
EXHIBIT A: Form of Agreement of Partnership
EXHIBIT B: Form of Drilling Program Agreement
EXHIBIT C: Form of Special Subscription Instructions
EXHIBIT D: Form of Subscription Agreement
(iii)
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[THIS PAGE INTENTIONALLY LEFT BLANK]
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SUMMARY OF OFFERING
This summary highlights some information from this prospectus. It may
not contain all of the information that is important to you. To understand this
offering fully, you should read the entire prospectus carefully. For definitions
of key terms used in this prospectus, see "Definitions." FOR A DISCUSSION OF
MATTERS THAT SHOULD BE CONSIDERED IN EVALUATING AN INVESTMENT IN THE INTERESTS,
SEE "RISK FACTORS."
THE PARTNERSHIPS
We are offering to qualified investors an aggregate of up to 4,000
($4,000,000) limited partner interests and 16,000 ($16,000,000) general partner
interests in a series of two Delaware limited partnerships formed or to be
formed by us. We will sell these interests to investors for $1,000 each. The
minimum number of interests that we will offer for any one partnership is 1,000
interests that may be comprised of any combination of limited and general
partnership interests. The minimum subscription in any one partnership is five
interests ($5,000). The maximum number of interests that we will offer for any
one partnership is 10,000. Therefore, the minimum offering amount for any one
partnership will be $1,000,000 and the maximum offering amount for any one
partnership will be $10,000,000. A partnership will not commence operations or
have any material assets or liabilities prior to the termination of the
subscription period for interests in such partnership.
The subscription period for interests in Mewbourne Energy Partners
99-A, L.P. will commence on the date of this prospectus and terminate on
November 5, 1999, unless we, as managing partner, in our sole discretion
accelerate or delay the offering termination date, provided that our ability to
delay the offering termination date is subject to our obligation to return the
purchase price for any interests not invested in a partnership within any period
required by state securities law. The subscription period for interests in
Mewbourne Energy Partners 00-A, L.P. will commence on the date disclosed in a
supplement or amendment to this prospectus. The subscription period for
interests in Mewbourne Energy Partners 00-A, L.P. will expire on December 31,
2000 unless earlier terminated or withdrawn by the managing partner.
A partnership will not be funded with less than $1,000,000 in capital
contributions from investors. If we have not received subscription funds of at
least $1,000,000 by the end of a partnership's subscription period, we will
promptly return all funds we have received for that partnership to subscribers.
Each partnership will terminate 50 years from the date of its formation.
We and our affiliates are eligible to subscribe for interests. However,
we may only purchase interests for investment purposes and not for resale or any
further public distribution. We currently intend to subscribe for as many
interests as may be necessary to assure that both partnerships receive the
minimum subscription amount of $1,000,000. The number of interests in the
partnerships that we may purchase is not subject to any specific maximum
limitations but instead depends upon the number of subscriptions we receive and
accept from non-affiliates.
INVESTMENT OBJECTIVES
Each partnership will participate in a drilling program consisting of
the acquisition, drilling and development of oil and gas prospects pursuant to a
drilling program agreement with us and our affiliate, Mewbourne Oil Company. The
primary investment objective of each partnership is to conduct oil and gas
drilling and development activities on prospects in an attempt to establish
long-life oil and gas reserves. In addition, the drilling program's structure is
intended to result in tax benefits, consisting principally of deductions for
intangible drilling costs, depletion, and depreciation. To the extent that the
operations of a partnership and the drilling program result in a net loss for a
taxable period, general partners will be able to claim their respective shares
of the deductions giving rise to such loss in the current year, but limited
partners will not be able to claim their shares of the deductions comprising
such loss in the current year except to the extent they have net passive income
from other sources. See "Tax Aspects." The drilling program agreement provides
that Mewbourne Oil Company, in its capacity as manager of the drilling program,
will have the exclusive power and authority to act on behalf of a partnership
with respect to
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the management, control and administration of the business and affairs of the
drilling program and the oil and gas properties subject to the drilling program
agreement. See "Management."
Each drilling program is intended to be a partnership for income tax
purposes only. See "Tax Aspects --Partnership Taxation -- Partnership
Classification." For all other purposes, each drilling program is intended to be
an agreement among us, the related partnership and Mewbourne Oil Company in its
capacity as manager of the drilling program. The participants in a drilling
program will be co-owners of undivided interests in the oil and gas properties
subject to that drilling program agreement. Each drilling program agreement sets
out the rights, duties, and obligations of the drilling program manager and the
other participants in the related drilling program.
PROPOSED ACTIVITIES
The primary objective of each partnership is to establish long-life oil
and gas reserves through the development of oil and gas prospects located in the
shelf and the shelf-slope regions of the Permian Basin, located in West Texas
and Southeastern New Mexico, and the Anadarko Basin, located in Western
Oklahoma, the Texas Panhandle and Southwest Kansas, by participating in a
drilling program formed and managed by Mewbourne Oil Company or its successor.
Although subject to change based on subsequent events and conditions, we
anticipate that each partnership will conduct oil and gas drilling and
development activities on prospects in the Permian and Anadarko Basins through a
drilling program. However, these prospects in the Permian and Anadarko Basins
have not yet been identified. In order to reduce the potential risks to the
participants, we anticipate that each partnership's activities through the
related drilling program will primarily focus upon activities relating to lower
risk development wells rather than higher risk exploratory wells. However, at
our discretion, a partnership may expend up to 20% of its capital contributions
in connection with activities relating to exploratory wells. See "Proposed
Activities." We may also determine that it is in the best interest of a
partnership to conduct activities in other geographic areas.
APPLICATION OF PROCEEDS
Interests in each partnership may be sold in an aggregate amount from
$1,000,000 to $10,000,000. There is no deduction from the proceeds realized from
the sale of interests to investors for organization and offering expenses, sales
commissions, and due diligence fees and, therefore, all of such sales proceeds
will be available to each partnership for the partnership's operations. The
managing partner under the terms of each drilling program agreement will pay all
organization and offering expenses, sales commissions, and due diligence fees.
See "Application of Proceeds" and "Participation in Costs and Revenues."
We estimate that of the total contributions made to each partnership's
drilling program approximately 8% to 9% will be expended for organization and
offering expenses, sales commissions and due diligence fees, approximately 15%
to 20% will be made in the form of lease acquisition costs of prospects,
approximately 12% to 16% will be expended for tangible costs, approximately 55%
to 60% will be expended for intangible drilling costs and the remainder will be
expended for other direct costs. These percentages are estimates only, and we
cannot assure that these percentages will be actually realized or that
variations in the percentages will not be significant to a partnership or its
drilling program.
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10
INVESTMENT AS A LIMITED PARTNER OR GENERAL PARTNER
You have the option to invest in a partnership as a limited partner or
general partner. If you invest, the allocations of costs and revenues relating
to a partnership's drilling activities to you will be the same regardless of
whether you elect to become a limited partner or a general partner of a
partnership. However, if you elect to become a general partner you may
experience economic and tax consequences different from those you would
experience if you were to elect to become a limited partner due to differences
in the legal obligations and tax treatment of general partners and limited
partners. See "-- Liability of Limited Partners" and "-- Liability of General
Partners" immediately below. The tax treatment of income and deductions
attributable to ownership of interests by a limited partner will be more
restrictive for many investors than the treatment afforded income and deductions
attributable to ownership of interests by a general partner. We generally will
receive the same tax benefits and assume the same obligations as the general
partners.
Liability of General Partners. By law, each general partner is liable
for all of the obligations of a partnership. Furthermore, each partnership will
own working interests in oil and gas leases subject to some portion of the costs
of development, operation or maintenance. We, and likely others, will also own
similar working interests in these leases. Therefore, a general partner could be
liable for the obligations of all such joint working interest owners. The
subsequent conversion of a general partner interest into a limited partner
interest will have no effect on the converted general partner's liability as to
events that occurred prior to the conversion. However, the managing partner will
indemnify each general partner from any liability in excess of his share of a
partnership's undistributed assets. See "Risk Factors -- Particular Risks
Relating to the Interests -- Liability of Joint Working Interest Owners."
Liability of Limited Partners. Assuming that a limited partner does not
take part in the control of the business of a partnership, his liability under
Delaware law will be limited, generally to the amount of capital he has
contributed to the partnership. Under the laws of the states where we anticipate
the partnerships will conduct substantially all of their business, the liability
of limited partners will be governed by Delaware law. See "Liability of Investor
Partner--Limited Partners" and "Risk Factors -- Particular Risks Relating to the
Interests -- Liability of Limited Partners."
Under the terms of the partnership agreement, the managing partner may
not request or require additional capital contributions from general or limited
partners and, under the terms of the partnership agreement, general and limited
partners are not permitted to voluntarily make any additional capital
contributions to a partnership.
How to Subscribe. For instructions on how to subscribe for interests in
a partnership see "Terms of the Offering -- Subscription Procedure."
THE FOREGOING IS A VERY BRIEF, INCOMPLETE SUMMARY OF MATTERS RELATING
TO THE OFFERING OF INTERESTS. THIS SUMMARY MUST BE CONSIDERED TOGETHER WITH
INDEPENDENT ADVICE AND A CAREFUL READING AND EXAMINATION OF THIS ENTIRE
PROSPECTUS AND THE ATTACHED EXHIBITS.
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RISK FACTORS
You should recognize that oil and gas drilling and exploration is a
high risk venture. Therefore, we recommend that you invest in a partnership only
if you are prepared to assume the substantial risks discussed below and
elsewhere in this prospectus. The nature of these risks requires persons who
purchase interests to be in a position:
o to hold such investment for a substantial number of years, and
o to absorb the possible loss of such investment.
PARTICULAR RISKS RELATING TO THE INTERESTS
Liability of Limited Partners. Each partnership will be governed by the
Delaware Revised Uniform Limited Partnership Act. Under Delaware law, as a
general rule, a limited partner's liability for the obligations of a partnership
is limited to such limited partner's capital contribution and such limited
partner's share of the partnership's assets. A limited partner of the
partnership will not otherwise be liable for the obligations of the partnership
unless, in addition to the exercise of his or her rights and powers as a limited
partner, such limited partner participates in the control of the business of a
partnership. In such case the limited partner is liable only to persons who
transact business with the partnership with actual knowledge of the limited
partner's participation in control. Accordingly, if a limited partner were to
take an action which was subsequently determined to constitute participating in
the control of the business of a partnership, such limited partner could become
liable for the partnership debts and obligations. See "Liability of Investor
Partners -- Limited Partners."
Liability of Investor General Partners. Under Delaware law, each
general partner in a partnership will be liable for all of the liabilities and
recourse obligations of the partnership. Furthermore, each partnership will own
working interests in oil and gas leases subject to some portion of the costs of
development, operation or maintenance. We, and likely others, will also own
similar working interests in these oil and gas leases. Therefore, a general
partner could be liable for the obligations of all such joint working interest
owners. The managing partner will indemnify each general partner from any
liability in excess of his share of a partnership's undistributed assets.
However, a general partner still could be subject to such liability if we should
become bankrupt or for any other reason we are unable to meet our financial
commitment to indemnify the general partners. This liability could obligate a
general partner to make additional payments to the partnership. The possible
amount of such a liability cannot be predicted. The subsequent conversion of a
general partner interest into a limited partner interest will have no effect on
the converted general partner's liability as to events that occurred prior to
the conversion. See"Liability of Investor Partners -- General Partners."
Liability of Joint Working Interest Owners. Pursuant to the drilling
program agreement, each drilling program participant, including the managing
partner and each partnership, will hold its working interest in oil and gas
leases in its own name and will be a joint working interest owner with the other
drilling program participants and also with third parties. It has not been
clearly established under the laws of some of the jurisdictions where a portion
of each drilling program's properties will be located whether a single joint
working interest owner is liable with respect to all obligations relating to the
entire jointly owned working interest. The operating agreements relating to
drilling program oil and gas leases will specify that the liabilities of joint
working interest owners will be limited to their individual joint working
interest, though we cannot assure that such a provision would be enforceable
against a third party. As a result it is possible that a general partner could
be determined liable for all obligations relating to the entire jointly owned
working interest.
Possibility of Reduction or Unavailability of Insurance Coverage of a
Partnership. It is possible that some or all of the insurance coverage which a
partnership has available may become unavailable or prohibitively expensive. If
the program manager and its affiliates cease to retain the coverage described
for any reason for a period of more than 20 days during the subscription period
for a partnership, the offering of interests in that partnership shall cease,
and subscribers for interests in any partnership in which investors have not
been admitted shall receive a refund of their subscription funds. The managing
partner will also promptly notify those investors of
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any material reduction in the insurance coverage of the drilling programs and
the partnerships. The managing partner shall give investors this notice as soon
as possible after it learns of such change and if possible at least 30 days in
advance of the change in insurance coverage. In addition, if a drilling program
or a partnership, after the admission of investors, has its insurance coverage
materially reduced for any reason, that partnership will halt all drilling
activity until such time as comparable replacement coverage is obtained. If a
partnership has its insurance coverage materially reduced after you invest, you
could be subject to a greater risk of loss of your investment since less
insurance would be available to protect your investment from casualty losses.
See "Proposed Activities -- Insurance."
Sole Reliance on Us for Management of a Partnership. Under the
partnership agreement, Mewbourne Development Corporation is designated as the
managing partner of each partnership and is given the exclusive authority to
manage and operate each partnership's business. We are required to devote only
such time as is reasonably needed to the operations of the partnerships.
Accordingly, if you invest in a partnership you must rely solely on us to make
all decisions on behalf of each partnership. Investors will have no role in the
management of the business of either partnership. Therefore, each partnership's
success will depend, in part, upon the management we provide, our ability, and
the ability of Mewbourne Oil Company as manager of each drilling program to:
o select and acquire oil and gas leases on which oil and gas
wells capable of producing oil and natural gas in commercial
quantities may be drilled,
o successfully drill and develop oil and gas well on the
properties selected, and
o market oil and natural gas produced from such oil and gas
wells.
Prospects Not Yet Identified or Selected; No Opportunity to Evaluate
Prospects. Although we maintain an inventory of leasehold acreage covering
numerous prospects, we have not, as of the date of this prospectus, selected or
agreed to transfer from such owned inventory any particular oil and gas leases
to a partnership or related drilling program. The drilling program manager will
select all oil and gas leases that the partnerships and the related drilling
programs will acquire or drill. You will not have an opportunity to review those
oil and gas leases before investing in a partnership. You will also not have an
opportunity to participate in the selection of oil and gas leases after an
investment is made. We may during the course of this offering select, and cause
this prospectus to be amended or supplemented to describe, prospects designated
for acquisition by participants in a drilling program. If you subscribe for
interests prior to any such amendment or supplement you will not be permitted to
withdraw your subscription as a result of the selection of any such designated
prospect and you may not be notified of the selection of any such designated
prospect prior to funding of the partnership or partnerships in which you have
invested. See "Proposed Activities -- Acquisition of Leases."
Concentration of Investment Risks. A partnership could be formed with
as little as $1,000,000 in capital contributions from investors. To the extent
that the funds available to a partnership are limited, its ability to spread
risks over a large number of oil and gas wells and prospects will be reduced.
The number of oil and gas wells which can be drilled based on the minimum
investment amount cannot be determined because prospects have not been selected.
However, even if a drilling program is formed with substantially more than the
minimum required capital, investors must rely on us to diversify drilling
activities of the related partnership.
Ownership of Interests in a Partnership by Our Affiliates. We and our
affiliates are eligible to subscribe for interests. However, any interests we or
our affiliates purchase must be purchased for investment purposes only and not
for the purpose of resale or any further public distribution. As the initial
managing partner, we currently intend to subscribe for such number of interests
as may be necessary for each partnership in which interests are being offered to
receive the minimum subscription number of 1,000 interests. The number of
interests in a partnership that we and/or our affiliates may purchase is not
subject to any specific maximum limitations but instead depends upon the number
of subscriptions for interests received and accepted from non-affiliates.
Therefore, there are no limitations upon the number of interests that we or our
affiliates may purchase. Interests we or our affiliates own will have voting
rights under the partnership agreement. However, during the time period that we
or our affiliate serve as the managing partner of a partnership, any interests
we or our affiliates own, which in the aggregate represent more than 20% of the
total interests held by the general and limited partners in the partnership
shall not have any voting
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rights under the partnership agreement and shall not be counted for voting
purposes or for purposes of determining a quorum. In addition, none of the
interests owned by us or our affiliates shall be counted for voting purposes or
for purposes of determining a quorum or have any voting rights concerning the
removal of us as managing partner or any transaction between that partnership
and us or our affiliates. Notwithstanding the voting limitations imposed upon
interests owned by us or our affiliates, to the extent that we or our affiliates
acquire interests in a partnership, such ownership will dilute the voting power
of the other investors in that partnership.
Additional Partnership Financing. We anticipate that the net proceeds
from the sale of interests in a particular partnership will be sufficient to
finance that partnership's share of the related drilling program's costs of:
o drilling and completing oil and gas wells, and
o providing necessary production equipment and facilities to
service such oil and gas wells and plugging and abandoning
non-productive oil and gas wells.
However, due to unforeseen circumstances, it could become necessary to finance
the costs of additional partnership operations through partnership borrowings,
utilization of partnership revenues obtained from production or other methods of
financing. These additional operations may include the acquisition of additional
oil and gas leases and the drilling, completing and equipping of additional
wells to further develop drilling program prospects. Each partnership agreement
provides that outstanding partnership borrowings may not at any time exceed 20%
of the aggregate capital contributions of the general and limited partners.
Furthermore, a partnership may borrow funds only if the lender agrees that it
will have no recourse against individual general partners. If the
above-described method of financing should prove insufficient to maintain the
desired level of development operations for the drilling program, such
operations could be continued through farmout arrangements with third parties,
including the managing partner and/or its affiliates. These farmouts could
result in the drilling program giving up a substantial interest in any oil and
gas revenues so developed.
Uncertainty of Partnership Cash Distributions. No distributions will be
made from a partnership to the general or limited partners of that partnership
until that partnership has funds which the managing partner determines are not
needed for the operation of the partnership and the drilling program.
Accordingly, we cannot assure that any distributions from a partnership will be
made to its general and limited partners. Distributions will depend primarily on
a partnership's net cash receipts from oil and gas operations. Moreover,
distributions could be delayed to repay the principal and interest on
partnership borrowings, if any, or to fund partnership costs. partnership income
will be taxable to the general and limited partners in the year earned, even if
cash is not distributed.
Conflicts of Interest of Managing Partner. Investors will not be
involved in the day-to-day operations of the partnerships. Accordingly, if you
invest in a partnership, you must rely on our judgment in such matters. Inherent
with the exercise of our judgment, we will be faced with conflicts of interest,
including:
o We will participate in the drilling programs in our individual
capacity. As a result, actions taken by a partnership may be
more beneficial to us than the partnership,
o We or our affiliates may participate in oil and gas activities
on behalf of other programs that we sponsor, will sponsor or
are for our account. We owe a duty of good faith to each of
the partnerships which we manage and it is possible that
actions taken with regard to other partnerships may not be
advantageous to a partnership.
o We and/or our affiliates may provide services to a
partnership. We and/or our affiliates will be compensated for
these services at rates competitive with the rates charged by
unaffiliated persons for similar services.
o If we or our affiliates' own interests in a partnership this
ownership may dilute the voting power of the other general and
limited partners in that partnership.
o The oil and gas leases that may be contributed to a
partnership may be adjacent to acreage or oil and gas leases
which we or our affiliates hold or will hold. While the
drilling program will not drill any well for the purpose of
proving or disproving the existence of oil or gas on any
adjacent acreage, such drilling activities may incidentally
develop information valuable to us or our affiliates in
evaluating our nearby acreage at no cost to us. Accordingly, a
conflict of interest will
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exist between our interests and the interest of a partnership
in selecting the location and type of operations which the
drilling program will conduct on drilling program oil and gas
leases.
We will attempt, in good faith, to resolve all conflicts of interest in a fair
and equitable manner with respect to all persons affected by those conflicts of
interest. However, we cannot assure that transactions between a partnership and
its affiliates will be on terms as favorable as could have been negotiated with
unaffiliated third parties. You should be aware that we have not formally
adopted any procedures or criteria to avoid or to resolve any conflicts of
interest that may arise between us and a partnership. You are urged to review
the discussion under "Conflicts of Interest" for a more complete description of
possible conflicts of interests.
Inside Board of Directors and Other Family Relationships of Managing
Partner and Program Director. Neither the managing partners nor the program
manager has a director who is not either a full time employee or a family
relation of Mr. Mewbourne. Therefore, our activities and the activities of
Mewbourne Oil Company should not be considered as being subject to the review
and scrutiny of an independent Board of Directors.
Limitations on the Fiduciary Obligations of the Managing Partner and
the Managing Partner's Responsibility to Determine the Application of the
Limitations. The partnership agreement contains provisions which modify what
would otherwise be the applicable Delaware law relating to the fiduciary
standards of the managing partner to the general and limited partners. The
fiduciary standards in the partnership agreement could be less advantageous to
the general and limited partners and more advantageous to the managing partner
than the corresponding fiduciary standards otherwise applicable under Delaware
law, specifically:
o we and our affiliates may be indemnified and held harmless by
a partnership,
o we are required to devote only so much of its time as is
necessary to manage the affairs of a partnership.
o we and our affiliates may conduct business with a partnership
in a capacity other than as a manager of the partnership,
o we and/or our affiliates may pursue business opportunities
that are consistent with a partnership's investment objectives
for their own account if we determine that such opportunity
cannot be pursued by the partnership either because of
insufficient funds or because it is not appropriate for the
partnership under the existing circumstances, and
o we may manage multiple programs simultaneously.
In addition, the partnership agreement limits the liability of us or
our affiliates to a partnership or to general and limited partners for acts or
omissions if we determine in good faith, as of the time of the conduct or
omission, that the course of conduct or omission was in the best interest of
that partnership and that such conduct or omission did not constitute negligence
or misconduct.
Your purchase of an interest in a partnership may be deemed as consent
to the limitations upon the fiduciary standards set forth in the partnership
agreement. As a result of these provisions in the partnership agreement, the
general and limited partners may find it more difficult to hold us responsible
for not acting in the best interests of a partnership and its general and
limited partners than if the fiduciary standards of the otherwise applicable
Delaware law governed the situation.
Partnership's Joint Activities With Others. We anticipate that the
participants in the drilling programs, including the related partnerships, will
not own the full working interest in most prospects to be explored and developed
pursuant to the drilling program agreement. It is likely that a third party or
parties will own a partial working interest in a prospect to be developed
pursuant to the drilling program agreement. These third parties could be either
our affiliates or unrelated to us and could also include Mr. Mewbourne. While
Mewbourne Oil Company, on behalf of each drilling program, would participate in
decisions affecting the development of such prospects, decisions with respect to
development activities might be controlled or affected by the other owners of
working interests in such prospects. Furthermore, a partnership could be held
liable for the joint activity obligations of such
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other working interest owners, and this liability could in turn result in
individual liability for the general partners in that partnership. See "--
Particular Risks Relating to the Interests -- Liability of Joint Working
Interest Owners ."
Lack of Liquidity for Investors. We anticipate that there will not be
any market for resale of the interests. Although the partnership agreement
permits the assignment of interests by general and limited partners, transfers
of interests are subject to restrictions. As one example, an assignee of an
interest may not become a substituted general or limited partner without our
consent. See "Summary of Partnership Agreement and Drilling Program Agreement
- --Assignability of Interests" for a description of these restrictions.
Accordingly, if you purchase an interest you should be prepared to bear the
investment risks attendant upon your investment for an indefinite period of
time.
General and limited partners will not have the right to withdraw any
capital from a partnership or to receive the return of all or any portion of
their capital contributions, except out of distributions of operating revenues,
upon a sale or other disposition of that partnership's property or the
dissolution and liquidation of that partnership. Although general and limited
partners may under certain circumstances require us, or an affiliate that we
have designated, to purchase their interest in whole but not in part, this
obligation is limited and does not assure the liquidity of an investor's
investment. See " Terms of the Offering -- Right of Presentment."
Indemnification of Managing Partner and its Affiliates. The partnership
agreement provides for indemnification of us, our affiliates and the officers
and directors of such persons against claims arising from conduct on behalf of a
partnership or the related drilling program. In addition, the drilling program
agreement provides for indemnification of Mewbourne Oil Company, its affiliates,
and the officers and directors of such persons against claims arising from
conduct on behalf of the related drilling program. In the event of any such
indemnification for losses, liabilities or expenses arising from or out of an
alleged violation of federal or state securities laws, a court must approve the
indemnification. In all other instances of indemnification, we will decide
whether or not indemnification is appropriate under the partnership agreement or
drilling program agreement. Therefore, if you invest, in such situations you
must rely upon our integrity to cause a partnership to indemnify us and our
affiliates only when such indemnification is justified under the partnership
agreement or drilling program agreement. You should also bear in mind that in
any situation involving indemnification, a partnership's funds could be applied
to the indemnification of us and our affiliates rather than to make
distributions to the general and limited partners. See "Summary of Partnership
Agreement and Drilling Program Agreement -- Indemnification of the Managing
Partner and its Affiliates.
Investor's Lack of Substantial Voting Rights. In order to preserve the
limited liability of the limited partners of the partnerships, the limited
partners may not take part in the day to day operations of a partnership.
Although those investors who elect to invest as general partners will not
initially be limited partners of a partnership, we are presuming that the vast
majority, if not all, of the general partner interests will be converted into
limited partner interests upon completion of the partnership's drilling
activities. In order to preserve the limited liability of the limited partners,
limited partners are not permitted to take actions which generally may be taken
by stockholders of public corporations, such as annual votes to approve
important matters. Because limited partners are not permitted to take part in
the day to day operations of a partnership, limited partnerships, such as the
partnerships, do not generally hold annual meetings such as those at which
stockholders may express their views and confront management directly. As a
result of the control of the day to day operations of a partnership is vested
exclusively in us, and you must rely on us to fulfill our fiduciary duties to
you and the other partners and to maximize the partnership's economic
performance.
Investor's Lack of Appraisal Rights. Unlike most modern corporation
laws and the solid body of judicial case law which provides most corporate
stockholders with appraisal rights to have their shares of stock redeemed by the
corporation in certain instances, limited partnership acts generally provide no
such rights. Although the partnership agreement does provide general and limited
partners with limited appraisal rights in the case of mergers and similar
events, see "Proposed Activities -- The Managing Partner's Policy Regarding
Roll-Up Transactions," an investor may not have appraisal rights in as many
situations as would some corporate stockholders. There is no extensive judicial
case law interpreting and upholding the appraisal rights of limited partners.
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Limited Ability to Remove Managing Partner and Difficulty in Finding a
Successor Managing Partner. We may be removed from our position as the managing
partner and/or Mewbourne Oil Company may be removed from its position as the
drilling program manager only by the affirmative vote of investors holding at
least 50% of the then outstanding general and limited interests of such
partnership. The general and limited partners in certain circumstances must, in
order to continue the partnership, elect a successor to the removed managing
partner if the removal of the managing partner causes a dissolution of that
partnership. In the event the drilling program manager is removed, the related
partnership must elect a successor to the removed drilling program manager.
There is a risk that the general and limited partners could not find a new
managing partner or drilling program manager if we or Mewbourne Oil Company were
to be removed from such positions.
Withdrawal of Partners. Pursuant to the partnership agreement, each
general partner will agree that he will not voluntarily withdraw from a
partnership. We agree that we will not voluntarily withdraw from a partnership
prior to the later to occur of:
o completion of the partnership's primary drilling activities
under the related drilling program, and
o the fifth anniversary of the date that general and limited
partners were admitted to the partnership.
In order to exercise its right of withdrawal, we must give the general
and limited partners at least 120 days' advance written notice. A general
partner who withdraws in violation of this agreement will be obligated to
reimburse the partnership and the other partners for any expenses associated
with such withdrawal. We expect that such expenses may be substantial and could
exceed the amount of the withdrawing general partner's original investment in
the partnership. Furthermore, a withdrawing general partner will no longer be
entitled to receive any distributions nor shall such general partner have any
rights as a partner under the partnership agreement.
Dissolution of a Partnership and Termination of the Drilling Program. A
partnership will be dissolved and terminated upon the occurrence of any of the
events listed under "Summary of Partnership Agreement and Drilling Program
Agreement -- Dissolution, Liquidation and Termination." These events include:
o the expiration of that partnership's term or
o the vote or consent in writing at any time by a majority in
interest of the general and limited partners.
However, a partnership could also be dissolved and both it and the related
drilling program terminated as a result of events which do not include the
passage of time or the consent of the general and limited partners. These events
include our bankruptcy, insolvency, dissolution, or withdrawal from the
partnership. The general and limited partners have the right to reconstitute a
partnership under such circumstances and thereby avoid termination of that
partnership. However, there is no certainty that the general and limited
partners could find a new managing partner to replace us in such circumstances.
We currently have no intention of withdrawing as the managing partner of a
partnership.
Ability of the Managing Partner to Cause Dissolution of a Partnership
and the Related Drilling Program. The partnership agreement and applicable law
provide our withdrawal from a partnership, directly or as a result of
bankruptcy, dissolution or similar event, will cause dissolution of that
partnership. We have undertaken not to withdraw as the managing partner of a
partnership prior to the later to occur of
o completion of that partnership's primary drilling activities
under the related drilling program, and
o the fifth anniversary of the date that general and limited
partners were admitted to that partnership.
However, we have the power under applicable law to withdraw from a partnership
in violation of the partnership agreement. We currently do not intend to
withdraw from a partnership. The partners of each partnership are given
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the right under the partnership agreement to reconstitute a partnership upon our
withdrawal, but there is an additional risk in such event that the partners of a
partnership could not find a successor managing partner.
Unauthorized Acts of General Partners Could Be Binding Against the
Partnership. Under Delaware law, the act of a general partner of a partnership
apparently carrying on the business of the partnership binds the partnership,
unless the general partner in fact has no authority to act for the partnership
and the person with whom the partner is dealing has knowledge in good faith of
the fact that such general partner has no such authority. While there is a risk
that a general partner might bind a partnership by his acts, we believe that the
managing partner will have such exclusive control over the conduct of the
business of the partnerships that it is unlikely that a third party, in the
absence of bad faith, would deal with a general partner in connection with a
partnership's business. The participation by a general partner in the management
and control of a partnership's business is expressly prohibited by the
partnership agreement, and a violation of such prohibition would give rise to a
cause of action by the partnership against such general partner. Nevertheless,
there is always the possibility that a general partner could attempt to take
unauthorized actions on behalf of a partnership, and if a court were to hold
that such actions were binding against the partnership such unauthorized actions
could be contrary to the best interests of that partnership and could adversely
impact such partnership.
GENERAL RISKS RELATING TO OIL AND NATURAL GAS OPERATIONS
Loss of Investment Due to Speculative Nature of Oil and Gas Activities.
Development of oil and gas properties is not an exact science and involves a
high degree of risk which could result in a loss of a partner's investment or
personal liability on the part of a General Partner. Pursuant to the drilling
program agreement, the activities of each partnership will focus upon the
acquisition of oil and gas leases, the drilling of development wells, the
development of prospects, and the production and operation of the resulting
properties. In addition to development wells, at our discretion, up to 20% of a
partnership's capital contributions may be expended in connection with
activities relating to exploratory wells. All drilling activities involve a high
degree of risk with exploratory wells presenting a higher degree of risk than
development wells. We cannot assure that the objective formation(s) will be
encountered or that any or sufficient oil or gas production will be obtained
through drilling program activities, or if production is obtained, that such
production will be sold at sufficient prices to enable an investor to recoup his
investment in a partnership. During the drilling and completion of wells, a
drilling program could encounter hazards such as unusual or unexpected
formations, pressures or other conditions, blow-outs, fires, failure of
equipment, downhole collapses, and other hazards, whether similar or dissimilar
to those enumerated. Although a partnership will maintain the insurance coverage
described under "Proposed Activities -- Insurance," the drilling program may
suffer losses due to hazards against which it cannot insure or against which it
may elect not to insure. Such liabilities could result in personal liability for
a general partner.
The Partnerships and the General Partners Could be Liable for
Environmental Hazards. There are numerous natural hazards involved in the
drilling of wells, including unexpected or unusual formations, pressures,
blowouts, and accidental leakage involving possible damage to property and third
parties. Such hazards may cause substantial liabilities to third parties or
governmental entities. Although we anticipate that customary insurance will be
obtained, a partnership may be subject to liability for pollution and other
damages due to hazards which cannot be insured against or will not be insured
against due to prohibitive premium costs or for other reasons. Liabilities to
third parties or governmental entities for pollution could reduce funds
available for distributions and for drilling operations, result in the loss of
partnership property, or result in the personal liability of the general
partners if the liability exceeded insurance proceeds, a partnership's assets,
and the managing partner's ability to indemnify such general partners.
Return on Investment is Dependent on Future Prices, Supply and Demand
for Oil and Gas. The revenues generated from the activities of each partnership
and the return on the investments made by the partner's will be highly dependent
upon the future prices and demand for oil and gas which can be volatile. The
high and low average monthly posted price for crude oil received by the drilling
program manager during 1998 was approximately $15.54 per barrel and $9.60 per
barrel, respectively. The high and low monthly average price received by the
drilling program manager for gas produced and sold during 1998 was approximately
$2.12 per mmbtu and $1.54 per mmbtu, respectively. Factors which may affect
prices and demand include the world-wide supply of oil and gas, the price of
foreign imports, the levels of consumer demand, price and availability of
alternative fuels and changes in
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existing and proposed federal regulation and taxation. Also, gas prices remain
somewhat seasonal in nature and, for this reason, it is particularly difficult
to estimate accurately future prices of gas, and any assumptions concerning
future prices may prove to be incorrect.
The United States average daily production of oil declined from 9.0
million barrels in 1985 to approximately 6.4 million barrels in 1998. The
reduced production level is in part the result of decreased drilling activity in
the United States. Drilling activity is measured by the United States rig count
which declined from 1,003 at the end of 1997 to 621 at the end of 1998. Another
factor contributing to the reduction of United States oil production is the
plugging and abandoning of wells which are uneconomical due to the significant
decrease in the price of oil.
The United States import levels for oil have increased significantly
since 1985. In 1985, imports of foreign oil represented 27% of the United
States' demand. During the year 1998, imports averaged approximately 55% of the
United States' consumption.
Government Regulation of a Partnership's Activities. The oil and gas
business is subject to extensive governmental regulation under which, among
other things, rates of production from oil and gas wells may be regulated.
Governmental regulation also may affect the market for a partnership's
production. Governmental regulations relating to environmental matters could
also affect a partnership's operations. We cannot predict the nature and extent
of various regulations, the nature of other political developments and their
overall effect upon a partnership and the related drilling program.
TAX RISKS
General. We have not requested, and we will not request, a ruling from
the IRS regarding the tax consequences of investing in interests. Based on our
representations and various assumptions and qualifications, our counsel has
rendered an opinion that the material federal income tax benefits of an
investment in interests, in the aggregate, more likely than not will be realized
in substantial part by a partner who is an individual United States citizen and
who acquires his interests for profit, provided that an investor who acquires
limited partner interests either is not subject to the passive activity loss
limitations of Section 469 of the Internal Revenue Code or has sufficient
passive income against which he can deduct his share of any partnership
deductions and losses. See "Tax Aspects --Opinion of Counsel."
Partnership Classification for Tax Purposes; No IRS Ruling Sought. In
order for income and deductions to be passed through to the general and limited
partners, a partnership and the related drilling program must be classified as
partnerships for federal income tax purposes. If a partnership or the related
drilling program were taxed as a corporation for federal income tax purposes,
the tax consequences resulting from the ownership of interests would be
adversely affected and any anticipated federal income tax benefits would be
reduced or eliminated. Based on our representations and various assumptions and
qualifications, our counsel is of the opinion that, at the time of formation,
each partnership and each related drilling program will be treated as a
partnership for federal income tax purposes and that neither partnership will be
treated as a corporation pursuant to the "publicly traded partnership" rules of
Section 7704 of the Internal Revenue Code. We cannot assure, however, that
future legislative, judicial or administrative action will not affect the
classification of a partnership or a drilling program for federal income tax
purposes. See "Tax Aspects -- Partnership Taxation -- Partnership
Classification."
Allocations. The partnership agreement and the drilling program
agreement contain provisions that allocate federal income tax consequences of a
drilling program's activities among us and the general and limited partners. If
such allocation provisions were not recognized for federal income tax purposes:
o a portion of the federal income tax deductions allocated to
and claimed by the general and limited partners, including
deductions for Intangible Drilling Costs, could be reallocated
to us. This
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reallocation could occur notwithstanding the fact that such
general and limited partners had been charged with the
expenditures giving rise to such deductions, and
o a portion of the taxable income allocated to us could be taxed
to the general and limited partners. This allocation could
occur notwithstanding the fact that the revenues giving rise
to such taxable income had been credited to us.
Based on our representations and various assumptions and qualifications, our
counsel is of the opinion that, except as noted below, the allocation of income,
gains, losses, and deductions between us and the general and limited partners
under the partnership agreement and between us and a partnership under the
drilling program agreement will be recognized for federal income tax purposes.
Our counsel's opinion is not binding on the IRS, however, and we cannot assure
that the IRS will not challenge such allocations.
Passive Activity Limitations. A limited partner's interest in a
partnership will be treated as a "passive activity," and any tax losses derived
by a limited partner from a partnership will be allowable only to the extent of
such limited partner's "passive income." Disallowed passive losses in any year
can be carried forward indefinitely and used to offset future passive income or
can be deducted in full when the limited partner disposes of his entire interest
in the partnership to an unrelated person in a fully taxable transaction.
A taxpayer's interest in an oil or gas well drilled or operated
pursuant to a working interest does not constitute a passive activity so long as
the taxpayer owns the working interest directly or through an entity that does
not limit the taxpayer's liability with respect to such drilling or operation.
Based on our representations and various assumptions and qualifications, our
counsel is of the opinion that the passive activity loss limitations of Section
469 of the Internal Revenue Code should not apply to general partners in a
partnership, prior to any conversion of a general partner interest to a limited
partner interest, to the extent that a partnership drills or operates wells
pursuant to working interests. Consequently, each general partner should be
entitled to deduct currently his share of intangible drilling and development
costs and other deductible expenses allocable to the drilling or operation of
wells pursuant to working interests without regard to the passive activity loss
limitations. However, a general partner's ability to take deductions will be
subject to basis and "at risk" limitations. The exception for working interests
would not be applicable to any operations of a partnership other than the
drilling and operation of wells pursuant to working interests. Therefore, if a
partnership acquires an interest or participates in other activities, such
activities will be treated as passive activities to the general partners and any
losses derived by them with respect to such activities will be passive losses
allowable only to the extent of their passive income. In addition, the exception
for working interests will not apply from and after a conversion of a general
partner interest to a limited partner interest. See "Tax Aspects -- Special
Features of Oil and Gas Taxation -- Passive Activity Loss Limitations."
The treatment of a partnership as a "publicly traded partnership" for
purposes of applying the passive activity loss limitations would even more
severely restrict or eliminate a limited partner's ability to use any
partnership losses to offset income from other sources. Based on our
representations and various assumptions and qualifications, our counsel is of
the opinion that neither partnership will be treated as a publicly traded
partnership for purposes of the application of the passive activity loss
limitations of Section 469 of the Internal Revenue Code. Our counsel's opinion
is not binding on the IRS, however, and we cannot assure that the IRS will not
assert that a partnership is a publicly traded partnership for purposes of
applying the passive activity loss limitations.
Considerations for Tax-Exempt Investors. Entities otherwise generally
exempt from federal income tax, such as IRAs, Keogh Plans, qualified employee
benefit plans, and charitable organizations, are taxed on "unrelated business
taxable income" in excess of $1,000 in any particular year. Substantially all
the income from a partnership's operations will constitute "unrelated business
taxable income" and may give rise to tax liability to an otherwise tax-exempt
investor which is a limited partner or a general partner. Such investor may be
required to file a tax return even if the investor does not realize net taxable
income from a partnership or taxable income exceeding $1,000 in a year.
Tax Shelter Registration. Although an investment in a partnership may
generate tax benefits, a partnership should not be considered a "tax shelter" as
that term is commonly understood. Nevertheless, because of the expansive
definition of the term "tax shelter" under applicable Treasury Regulations, we
will apply to the IRS for a
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"tax shelter" registration number with respect to each partnership. We will
furnish the registration number to each partner. Each partner must include the
registration number on his individual tax return and must furnish the number and
certain other information to any transferee of his interests. We will also
maintain and make available to the IRS on request a list of the general and
limited partners in each partnership. There may be a greater likelihood that
partners in a partnership will be audited by the Internal Revenue Service
because the partnership has been registered as a "tax shelter."
Current Tax Deductions. We will use reasonable efforts to expend or
contract for the expenditure of the capital contributions of each partnership in
the year such contributions are received. However, some of the expenses may be
incurred prior to the actual drilling of the oil and gas wells. We cannot assure
that any intangible drilling costs incurred in a year prior to the year of the
actual drilling of the oil and gas wells will be deductible in the year
incurred. In particular, a partnership might not expend or contract for the
expenditure of a substantial portion of its capital contribution in the year in
which general and limited partners are admitted to a partnership, in which event
no substantial partnership tax deductions would be available in that year. We
have sponsored a series of ten public limited partnerships similar to the
partnerships being offered by this prospectus since December 1992 and, based on
the historic results of these previous limited partnerships, we anticipate that
no more than 50% of the total intangible drilling costs incurred by a
partnership will be incurred and deductible by investors in that partnership in
the year they are admitted as general or limited partners to such partnership.
See "Tax Aspects -- Anticipated Federal Income Tax Deductions."
Conversion of General Partner Interests. We anticipate that the general
partner interests in a partnership will be converted to limited partner
interests following the completion of the partnership's drilling activities. We
anticipate a partnership will complete drilling activities within approximately
8 to 15 months after the funding of the partnership. The tax consequences of
such a conversion will depend upon the law in existence at the time of
conversion and upon the results of that partnership's operations prior to that
time. Such consequences may be adverse if the conversion is deemed a
"constructive termination" of the partnership for federal income tax purposes or
may be adverse under the passive loss rules as a result of a partner's
particular circumstances. If we determine that the conversion of the general
partner interests in a partnership to limited partner interests will have an
adverse effect on the general partners or the partnership, due to adverse tax
consequences or other reasons, we may elect not to convert those interests.
Accordingly, we cannot assure that any general partner interests will be
converted to limited partner interests or when any such conversion will occur.
Tax Liabilities in Excess of Cash Distributions. A partner must report
and pay income tax on his share of partnership income, regardless of whether
such income is retained and used for debt service, working capital, or other
reasons, any of which uses may not give rise to deductions for federal income
tax purposes. The receipt of cash distributions by the general and limited
partners may be delayed due to various factors, such as the use of revenues to
finance permitted activities. To the extent that the general and limited
partners are credited with net income from a partnership, an income tax
liability will be incurred even though the general and limited partners may not
yet have received any cash distributions from the partnership. The timing and
amount of cash distributions will be determined by us in our complete
discretion. If you invest in a partnership, you will be required to report your
share of any partnership income on your federal, state and local tax returns and
you will be responsible for the payment of taxes attributable to such income. In
any year, your resulting tax liability may exceed the amount of cash distributed
to you by a partnership.
Risks of Borrowings. We are authorized to cause a partnership to obtain
additional loans from banks or other financial sources, or from us or our
affiliates, provided that the total amount of such loans may not in the
aggregate exceed 20% of the capital contributions to the partnership. A
partner's share of revenue applied to the repayment of loans, will be included
in his taxable income. Although such income may be offset in part by deductions
for depletion, cost recovery, depreciation, and intangible drilling costs, such
loans could cause a partner to become subject to an income tax liability in
excess of the amount of cash distributions he receives from the partnership.
Percentage Depletion. Because depletion deductions must be computed
separately by each partner and not at the partnership level, the availability of
percentage depletion will depend in part upon a partner's individual
circumstances. Therefore, each individual investor may not be eligible to claim
percentage depletion deductions. See "Tax Aspects -- Special Features of Oil and
Gas Taxation -- Depletion."
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Farmouts and Backin Interests. If a partnership acquires working
interests in oil and gas leases pursuant to the terms of a farmout agreement, a
portion of the value of such working interests may have to be reported as
taxable income. In addition, the ability of a partnership to deduct all
intangible drilling costs paid by it with respect to oil and gas leases burdened
by a backin working interest may be limited. A backin working interest is a
right held by another party to become a working interest owner in the oil and
gas lease on payout of the initial well on the oil and gas lease. See "Tax
Aspects -- Special Features of Oil and Gas Taxation -- Farmouts and Backin
Interests."
Recapture. Certain deductions for intangible drilling costs, depletion,
and depreciation must be recaptured as ordinary income on disposition of
property by a partnership or on disposition of interests by a partner. If a
partnership disposes of property or a partner transfers an interest, the
partnership, and the partners may recognize ordinary income (instead of capital
gain) to the extent such deductions for intangible drilling costs, depletion and
depreciation must be recaptured. See "Tax Aspects -- Special Features of Oil and
Gas Taxation -- Intangible Drilling and Development Costs," "-- Depletion" and
"-- Depreciation."
Audits. The IRS may audit the tax returns of the partnership you invest
in or its related drilling program, in which case an audit of your individual
tax returns also may result. If such audits occur, tax adjustments may be made,
including adjustments to items on your returns unrelated to the partnership.
Furthermore, any settlement or judicial determination of the partnership's or
the drilling program's income may be binding on you. This is the case even
though you may not have participated directly in the settlement proceedings or
litigation. See "Tax Aspects --Partnership Taxation -- Elections and Returns."
Changes in Federal Income Tax Laws. Significant and fundamental changes
in the nation's federal income tax laws have been made in recent years and
additional changes are likely. Any such change may affect the partnerships and
the general and limited partners. Moreover, judicial decisions, regulations or
administrative pronouncements could unfavorably affect the tax consequences of
an investment in a partnership. See "Tax Aspects -- Other Tax Consequences
- --Changes in Federal Income Tax Laws."
Significance of Tax Aspects. These interests are being offered to
parties who may avail themselves of the benefits presently allowed oil and gas
activities under federal income tax laws. We cannot assure that:
o money invested in a partnership will be recovered,
o any capital contributions to a partnership will be expended
and result in any tax deductions in the year such
contributions are received by a partnership,
o federal income tax laws or the present interpretation of those
laws will not be changed, or that
o any position taken by a partnership or a drilling program on
its federal income tax returns will not be challenged by the
IRS.
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In addition, federal income tax provisions may:
o limit deductions,
o trigger or increase a partner's liability for the alternative
minimum tax on tax preference items,
o increase tax liability on the disposition of interests,
o or otherwise increase the federal income tax liability of a
partner.
Notwithstanding enactment of additional legislation or interpretations of
legislation which might require different treatment from the discussion under
"Tax Aspects," a partnership is authorized to expend the proceeds from the sale
of interests and to conduct its business and operations as described in this
prospectus. Each item of partnership income, gain, loss, or deduction will be
shared or borne financially in the manner specified in this prospectus. It is
suggested that you obtain professional guidance from your tax advisor in
evaluating the tax risks involved in investing in a partnership.
YEAR 2000 DISCLOSURE
"Year 2000," or the ability of computer systems to process dates with
years beyond 1999, affects almost all companies and organizations. Computer
systems that are not Year 2000 compliant by January 1, 2000 may cause material
adverse effects to companies and organizations that rely upon those systems.
Continuity of a partnership's operations in January 2000 will not only depend
upon Year 2000 compliance of our or a partnership's computer system and
computer-controlled equipment, but also compliance of computer systems and
computer-controlled equipment of third parties. These third parties include oil
and natural purchasers and significant service providers such as electric
utility companies and natural gas plant, pipeline and gathering system
operators. Based on our review, remediation efforts and the result of testing to
date, we do not believe that timely modification of our computer systems and
computer controlled equipment for Year 2000 compliance represent a material risk
to either partnership. However, we cannot provide assurance that all such
significant third parties will achieve compliance in a timely manner. A third
party's failure to achieve Year 2000 compliance could have a material adverse
effect on a partnership. The potential effect of Year 2000 non-compliance is
currently unknown but could result in an interruption in, or failure of, certain
normal business activities or operations.
FORWARD LOOKING STATEMENTS
Forward-looking statements are inherently uncertain some statements
under the captions "Summary of Offering," "Risk Factors," "Application of
Proceeds," and elsewhere in this prospectus are forward-looking statements.
These forward-looking statements include, but are not limited to, statements
about our industry, plans, objectives, expectations, intentions and assumptions
and other statements contained in the prospectus that are not historical facts.
When used in this prospectus, the words "expect," "anticipate," "intend,"
"plan," "believe," "seek," "estimate" and similar expressions are generally
intended to identify forward-looking statements. Because these forward-looking
statements involve risks and uncertainties, including those described in this
"Risk Factors" section, actual results may differ materially from those
expressed or implied by these forward-looking statements. We do not intend to
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise. Market data and forecasts used in this
prospectus have been obtained from independent industry sources. Although we
believe these sources are reliable, we do not guarantee the accuracy and
completeness of historical data obtained from these sources and we have not
independently verified these data. Forecasts and other forward-looking
information obtained from these sources are subject to the same qualifications
and the additional uncertainties accompanying any estimates of future market
size.
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DEFINITIONS
The following are definitions of certain terms used in this prospectus.
In order to fully understand the terms of this offering, you should read these
definitions carefully.
"affiliated program" means a drilling, producing property, income,
royalty, or other program, whether in the form of a partnership, joint venture,
or otherwise, including the partnerships, for or of which the managing partner
or an affiliate of the managing partner serves as manager or managing partner or
acts in a similar capacity.
"development well" means a well drilled within the proved area of an
oil or gas reservoir to the depth of a stratigraphic zone or horizon known to be
productive. Development wells include, without limitation,
o a well drilled as an additional well to the same reservoir as
another producing well on an oil and gas lease,
o a well drilled to the same reservoir which previously
contained a producing well, drilled on an offset oil and gas
lease to the same reservoir, or
o a well drilled on acreage reasonably certain, based on
accepted geological, geophysical, and engineering studies and
data, to be geologically contiguous with the same reservoir.
"direct costs" means all actual and necessary costs directly incurred
for the benefit of a drilling program and generally attributable to the goods
and services provided to the drilling program by parties other than the managing
partner or its affiliates. Direct costs shall not include any cost otherwise
classified as organization and offering expenses, administrative costs,
operating costs, or lease acquisition costs. Direct costs include reporting and
legal expenses. Direct costs also include the costs of services provided by the
managing partner or its affiliates under the terms of written contracts.
"eligible citizen" means any person who is eligible to be qualified to
hold an interest in oil and gas leases on federal lands, including offshore
areas, under federal laws and regulations in effect from time to time. As of the
date of this prospectus, in order to be an eligible citizen a person must
(a) be a citizen of the United States,
(b) not be a minor, unless a legal guardian or trustee holds the
interest on the minor's behalf,
(c) be in compliance with federal acreage limitations, and
(d) not be participating in any agreement, scheme, plan, or
arrangement related to simultaneous oil and gas leasing that
would otherwise be prohibited.
Under current federal oil and gas leasing rules,
(i) an association, including a partnership or a trust, is
considered an eligible citizen if both such association and
all of its members or partners, and all parties who own, hold,
or control any of its instruments of ownership or control,
satisfy requirements (a) through (d) above and
(ii) a corporation is considered an eligible citizen if it is
organized or existing under the laws of the United States, a
state, the District of Columbia, or a United States territory
and if it and all parties who own, hold, or control any of its
instruments of ownership or control satisfy requirements (a)
through (d) above. For purposes of this clause (ii), aliens
from countries that the federal government regards as not
denying similar privileges to citizens or corporations of the
United States may own, hold, or control stock in an eligible
citizen.
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In addition, an eligible citizen may not hold, own, or control, directly or
indirectly, interests in federal oil and natural gas leases, options for such
leases or interests in such leases, on lands subject to the United States
Mineral Lease Act of 1920, as amended, in excess of the following limits:
o 246,080 acres, of which no more than 200,000 may be under
option, in any one state other than Alaska and
o 300,000 acres, of which no more than 200,000 may be under
option, in each of the northern and southern leasing districts
of Alaska.
"exploratory well" means
o a well drilled to find commercially productive hydrocarbons in
an unproven area, or
o a well drilled to find a new commercially productive zone or
horizon in a field previously found to be productive of
hydrocarbons at another zone or horizon, or to significantly
extend a known prospect.
"intangible drilling costs" means expenditures associated with the
drilling and completion of oil and gas wells that under present law are
generally accepted as fully deductible currently for federal income tax
purposes. Intangible drilling costs include all expenditures made with respect
to any well prior to, and in preparation of, establishment of production in
commercial quantities. The term Intangible drilling costs shall not include
lease acquisition costs.
"lease acquisition costs" means, when used to describe the costs of any
oil and gas lease, the sum of
(a) all monetary consideration paid or given for the oil and gas
lease to a non-affiliate of the managing partner, including
but not limited to lease bonuses and advance rentals paid to a
non-affiliate of the managing partner,
(b) all costs of lease acquisition and title examination including
but not limited to curing or defending title, title insurance
or examination costs, brokerage commissions, the fees and
wages of landsmen and lease brokers and their expenses, filing
fees, recording costs, transfer taxes, and like charges paid
in connection with the acquisition of the oil and gas lease,
(c) all delay rentals and other similar payments and ad valorem
taxes paid by the seller with respect to the oil and gas
lease,
(d) such portion as may be allocated to the oil and gas lease in
accordance with generally accepted accounting principles and
industry standards of all reasonable, necessary, and actual
costs and expenses of the managing partner or its affiliates
for geological, geophysical, seismic, land, engineering,
drafting, accounting, legal, and other like services together
with related administrative and general overhead costs
involved in lease acquisition and prospect evaluation
including such costs and expenses which could otherwise be
classified in this prospectus as administrative costs,
(e) such portion as may be allocated to the oil and gas lease in
accordance with generally accepted accounting principles and
industry standards of all costs and expenses incurred in the
acquisition of farmouts, subleases, pooling orders, or other
oil and gas interests,
(f) interest and points actually incurred on funds borrowed to pay
any of the costs and expenses described in clauses (a) through
(e) above calculated from the date of their incurrence until
the date of their reimbursement by a drilling program at the
time the oil and gas lease is acquired by the drilling
program, and
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(g) with respect to oil and gas leases held on the date of this
prospectus by or acquired after such date by the managing
partner or an affiliate of the managing partner, an interest
in which is transferred to the participants pursuant to the
drilling program agreement, the costs of such transfer;
provided that the expenses described in clauses (c), (d), (e),
and (f) shall have been incurred by the managing partner or
its affiliates not more than 36 months prior to the
acquisition by a drilling program of the oil and gas lease;
and provided further, that such time limitation shall not be
applicable to an oil and gas lease having a primary term of
five or more years.
Lease Acquisition Costs of an oil and gas lease shall not include any costs or
expenses which represent costs or expenses incurred in connection with the past
drilling of wells which are not producers of sufficient quantities of oil or
natural gas to make commercially reasonable their continued operation.
"operating agreement" means a model form operating agreement based upon
the American Association of Petroleum Landsmen Form 610-1989. This operating
agreement includes the accounting procedure for joint operations issued by the
Council of Petroleum Accountants Societies of North Americawhich is attached as
an exhibit to such agreement. An operating agreement will contain modifications
that are customary and usual for the geographic area in which the partnership
intends to conduct operations.
"operating costs" means all expenditures made and costs incurred in
producing and marketing oil and gas from completed wells. Operating costs
include labor, fuel, repairs, hauling, materials, supplies, utility charges,
other costs incidental to or resulting from such costs, ad valorem and severance
taxes, insurance, casualty loss expense, and compensation to well operators or
others for services rendered in conducting such operations.
"organization and offering expenses" means all costs and expenses
incurred by the managing partner and its affiliates in connection with the
organization of a partnership and a drilling program, the registration of the
interests for offer and sale under applicable federal and state securities laws,
and the offer and sale of the interests. Organization and offering expenses
include, without limitation, fees paid to persons performing due diligence
examinations or otherwise acting in relation to a partnership or the managing
partner with respect to the offering and sale of the interests and all expenses
reasonable for the managing partner and its affiliates incurred in assisting
with the distribution of the interests or such due diligence. Organizational
and offering expenses shall not include any costs and expenses that might be
categorized as any of the foregoing but that are included as sales commissions
or due diligence fees.
"proved reserves" means those quantities of crude oil, natural gas, and
natural gas liquids which, upon analysis of geological and engineering data,
appear with reasonable certainty to be recoverable in future years from known
oil and gas reservoirs under existing economic and operating conditions. Proved
Reserves are limited to those quantities of oil and gas which can be expected,
with little doubt, to be recoverable commercially at current prices and costs,
under existing regulatory practices and with existing conventional equipment and
operating methods. Depending upon their status or development, Proved Reserves
will be subdivided into the following classifications and have the following
definitions.
o "proved developed reserves" means proved reserves which can be
expected to be recovered through existing wells with existing
equipment and operating methods. This classification includes:
o "proved developed producing reserves," which are
Proved Developed Reserves which are expected to be
produced from existing completion intervals now open
for production in existing wells; and
o "proved developed non-producing reserves," which are
Proved Developed Reserves which exist behind the
casing of existing wells, or at minor depths below
the present bottom of such wells. Proved developed
non-producing reserves are expected to be produced
through existing wells in the predictable future,
where the cost of making oil and gas available for
production is relatively small compared to the cost
of a new well.
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Additional oil and gas expected to be obtained through the
application of improved recovery techniques are included as proved
developed reserves only after testing by a pilot project or after the
operation of an installed program has confirmed through production that
increased recovery will be achieved.
o "proved undeveloped reserves" means all reserves which are
expected to be recovered from additional wells on undrilled
acreage or from existing wells where a relatively major
expenditure is required for recompletion. Such reserves on
undrilled acreage are limited to those drilling units
offsetting productive units which are reasonably certain of
production when drilled. Proved reserves for other undrilled
units are claimed only where it can be demonstrated with
reasonable certainty, based on accepted geological,
geophysical, and engineering studies and data, that there is
continuity of reservoir from an existing productive formation.
No estimates for Proved undeveloped reserves are attributable
to any improved recovery technique contemplated for any
acreage, unless the techniques to be employed have been proved
effective by actual tests in the same areas and reservoir.
"reporting and legal expenses" means all third party accounting fees,
costs, and expenses associated with obtaining audits of books and records, third
party engineering fees, costs, and expenses associated with annual reserve
reports, and third party attorney's fees and other legal fees, costs, and
expenses associated with matters that are attributable to a drilling program's
or a partnership's business.
"sharing ratio" means for any partner in a partnership the proportion
obtained by dividing
o the amount of such partner's capital contribution to the
partnership by
o the sum of all capital contributions paid by all partners to
that partnership.
In the event of a voluntary or involuntary assignment by a partner of interests
in a partnership, other than an assignment solely of an interest in
distributions of partnership revenues, the sharing ratio of such partner shall
be proportionately reduced, based upon the number of interests assigned compared
to the total number of interests owned by such partner. The assignee of such
interests shall succeed to a proportionate share of the sharing ratio of his
assignor that is attributable to the interests transferred to such assignee.
"sponsor" means any person directly or indirectly instrumental in
organizing, wholly or in part, a partnership or any person who will manage or is
entitled to manage or participate in the management or control of a partnership.
Sponsor includes the managing partner and any other person who actually controls
or selects any person who controls 25% or more of the exploratory,
developmental, or producing activities of a partnership or any segment of the
partnership, even if that person has not entered into a contract at the time of
the formation of the partnership. Sponsor does not include wholly independent
third parties such as attorneys, accountants, and underwriters whose only
compensation is for professional services rendered in connection with the
offering of the interests. The term Sponsor shall also be deemed to include its
affiliates.
"tangible costs" means those costs associated with drilling and
completion of oil and gas wells which are generally accepted as capital
expenditures under the Internal Revenue Code of 1986, as amended. Tangible costs
include all costs of equipment, parts and items of hardware used in drilling and
completing a well. Tangible costs also include those items necessary to deliver
acceptable oil and gas production to purchasers to the extent such items are
installed downstream from the wellhead of any well and which are required to be
capitalized pursuant to applicable provisions of the Internal Revenue Code and
the regulations promulgated under the Internal Revenue Code.
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TERMS OF THE OFFERING
GENERAL
Mewbourne Development Corporation, as managing partner, is offering to
qualified investors during 1999 an aggregate of up to 4,000 ($4,000,000) limited
partner interests and up to 16,000 ($16,000,000) general partner interests in a
series of two partnerships. The minimum offering amount for a partnership is
1,000 interests ($1,000,000) with the maximum offering amount being 10,000
interests ($10,000,000). Each partnership will be a distinct entity, and a
purchaser of interests in any one partnership will not obtain an interest in the
other partnership. No partnership will commence operations prior to the
termination of the subscription period for interests. Each partnership will
participate, together with us and our affiliate Mewbourne Oil Company, in a
drilling program. Pursuant to the drilling program agreement, the activities of
each partnership will focus upon the acquisition of oil and gas leases covering
prospects, the drilling of development wells and the production and operation of
the resulting properties.
The minimum subscription in a partnership is five interests ($5,000).
The entire purchase price for each interest must be paid in cash at the time of
subscription.
The execution of a subscription agreement in the form attached as
Exhibit D to this prospectus by a subscriber or his authorized representative
constitutes a binding offer to buy interests in a partnership and an agreement
to hold the offer open until the subscription is accepted or rejected by the
managing partner. Once an investor subscribes for interests, he will not have
any revocation rights other than pursuant to applicable state securities laws.
The managing partner may refuse to accept any subscription without liability to
the subscriber. The managing partner may reject a subscription if, for example,
the prospective investor does not satisfy the suitability standards or if the
subscription is received after the offering period has terminated. The execution
of a subscription agreement and its acceptance by the managing partner also
constitute the execution of the partnership agreement and an agreement to be
bound by the terms of the partnership agreement as an investor partner,
including the granting of a special power of attorney to the managing partner
appointing it as the investor partner's lawful representative to make, execute,
sign, swear to, and file various documents and instruments. See "Summary of
Partnership Agreement and Drilling Program Agreement -- Power of Attorney."
The managing partner and its affiliates are eligible to subscribe for
interests, provided that any interests so purchased must be purchased for
investment purposes only and not for the purpose of resale or any further public
distribution. It is the managing partner's current intention that the managing
partner and/or its affiliate will subscribe for such number of interests as may
be necessary for each partnership to receive the minimum subscription amount of
1,000 interests ($1,000,000). The number of interests in a partnership that may
be purchased by the managing partner and/or its affiliates is not subject to any
specific maximum limitations but depends upon the number of subscriptions for
interests received and accepted from non-affiliates. However, although there are
no limitations upon the number of interests that may be purchased by the
managing partner or its affiliates, the managing partner does not intend to
purchase any interests in a partnership if the partnership has already received
the minimum subscription amount and the managing partner does not intend to
purchase any more interests in a partnership than necessary to ensure that such
partnership receives the minimum subscription amount. Subject to limitations,
interests purchased by the managing partner or its affiliates will have voting
rights under the partnership agreement. See "Risk Factors --Particular Risks
Relating to the Interests -- Ownership of Interests by Our Affiliates.
SUBSCRIPTION REFUNDS
If, within 12 months after the admission of the general and limited
partners to a partnership, the partnership has not expended or committed for
expenditure an amount equal to the total capital contributions of the
partnership's investor general and limited partners, the managing partner shall
distribute, as a return of capital, to the general and limited partners on a pro
rata basis the amount of such unexpended and uncommitted partnership funds,
after deducting an amount that the managing partner reasonably determines will
be equal to the operating capital to be required by that partnership that will
not be provided by anticipated revenues from partnership operations. For a
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description of the tax consequences resulting from the distribution of such
uncommitted amounts, see "Tax Aspects --Special Features of Oil & Gas Taxation
- -- Basis and At Risk Rules."
SUBSCRIPTION PERIOD
The subscription period for interests in Mewbourne Energy Partners
99-A, L.P. will commence on the date of this prospectus and terminate on
November 5, 1999, unless we, as managing partner, in our sole discretion,
accelerate or delay the offering termination date, provided that our ability to
delay the offering termination date is subject to our obligation to return the
purchase price for any interests not invested in a partnership within any period
required by state securities law. The subscription period for interests in
Mewbourne Energy Partners 00-A, L.P. will commence on the date disclosed in a
supplement or amendment to this prospectus. The subscription period for
interests in Mewbourne Energy Partners 00-A, L.P. will expire on December 31,
2000 unless earlier terminated or withdrawn by the managing partner.
A partnership shall not be funded with less than $1,000,000 in capital
contributions from investor general and limited partners. If, at the end of the
subscription period for interests in a partnership, subscription funds of less
than $1,000,000 have been received by us, such funds will be promptly returned
to subscribers.
SUITABILITY STANDARDS
General.
Investment in a partnership involves a high degree of financial risk
and is suitable only for persons of substantial means who have no need for
liquidity in their investment and who can afford to lose all or substantially
all of their investment. In particular, investment as a general partner is
recommended only to those persons who are in a position to benefit from the
treatment given such investment under current federal income tax laws. The
following suitability requirements represent the minimum suitability
requirements for investors in a partnership, and the satisfaction of such
requirements by a prospective investor does not necessarily mean that an
investment in a partnership is a suitable investment for that investor.
Based upon the information provided by each subscriber concerning
his/her investment objectives, other investments, financial situation and needs,
and any other pertinent information, each person offering and selling interests
is required to make every reasonable effort to assure that the purchase of
interests and an investment in a partnership are an appropriate investment for
an investor in light of the suitability standards set forth in this prospectus
and that an investment in interests is consistent with such investor's
investment objectives and financial situation. In addition, such persons will
make every reasonable effort to assure that:
o such subscriber is or will be in an appropriate financial
position which will enable him/her to realize to a significant
extent the benefits described in this prospectus, including
the tax benefits,
o the subscriber has a fair market net worth sufficient to
sustain the risks inherent in an investment in a partnership,
including loss of investment and lack of liquidity,
o an investment in a partnership is otherwise suitable for such
subscriber, and
o they have a reasonable basis to believe that the subscriber,
along or with one or more representatives, advisors, or agents
has the knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of
the offering.
Such information will be maintained by the managing partner and the applicable
soliciting dealer for at least six years.
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Minimum Suitability Standards
Each subscriber for interests must represent in writing that he/she
has:
o a minimum annual gross income of $60,000 and a minimum net
worth of $60,000 exclusive of home, home furnishings and
automobiles, or
o a minimum net worth of $225,000 (exclusive of home, home
furnishings and automobiles).
Investors who are residents of the states set forth below may be
subject to higher and/or alternative suitability standards, which are described
below. Additional representations and warranties required of general and limited
partners are set forth in the special subscription instructions and the
subscription agreement attached as Exhibits C and D to this prospectus.
Additional Suitability Standards.
For ALABAMA, ARIZONA, IOWA, KANSAS, MICHIGAN, MINNESOTA, MISSISSIPPI,
MISSOURI, NORTH CAROLINA, OHIO, OREGON, PENNSYLVANIA, SOUTH CAROLINA, SOUTH
DAKOTA, TENNESSEE, TEXAS, UTAH, VIRGINIA, WASHINGTON AND WEST VIRGINIA,
RESIDENTS. A resident of the States of ALABAMA, ARIZONA, IOWA, KANSAS, MICHIGAN,
MINNESOTA, MISSISSIPPI, MISSOURI, NORTH CAROLINA, OHIO, OREGON, PENNSYLVANIA,
SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VIRGINIA, WASHINGTON, AND
WEST VIRGINIA, and who are subscribers for general partner interests must
represent in writing that he/she has:
o minimum net worth of $225,000 without regard to the investment
in the partnership, exclusive of home, home furnishings and
automobiles, and as to the residents of Alabama, Minnesota,
North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee,
Texas, Utah, Virginia, Washington and West Virginia a minimum
annual gross income of $100,000 for the current year and for
the two previous years, and as to residents of Arizona, Iowa,
Kansas, Michigan, Mississippi, Missouri, Oregon and South
Dakota a taxable income of $60,000 or more for the previous
year and the expectation of an annual taxable income of
$60,000 or more for the current year and for the next
succeeding year, or
o a minimum net worth in excess of $1,000,000, inclusive of
home, home furnishings, and automobiles, or
o a minimum net worth of $500,000, exclusive of home, home
furnishings and automobiles, or
o a minimum annual gross income of $200,000 in the current year
and the two previous years.
The subscriber must also represent in writing that the investment in a
partnership does not represent more than ten percent of the subscriber's net
worth, less the value of the subscriber's other investments in limited
partnership interests.
For CALIFORNIA Residents. A resident of the State of California who
subscribes for limited partner interests must represent in writing that he/she
has:
o a net worth of at least $250,000 or more, exclusive of home,
home furnishings, and automobiles and had during the last tax
year or estimates that he/she will have during the current tax
year, a gross annual income of $65,000 or more, or
o a net worth of $500,000 or more, exclusive of home, home
furnishings, and automobiles.
A resident of the State of California who subscribes for general
partner interests must represent in writing that he/she has:
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o a net worth of at least $250,000 or more, exclusive of home,
home furnishings, and automobiles and had during the last tax
year, or estimates that he/she will have during the current
tax year, a gross annual income of $120,000 or more, or
o a net worth of $500,000 or more, exclusive of home, home
furnishings, and automobiles, or
o a net worth of $1,000,000 or more, inclusive of home, home
furnishings, and automobiles, or
o had during the last tax year, or estimates that he/she will
have during the current tax year, a gross annual income of
$200,000 or more.
For MICHIGAN and OHIO Residents. A resident of MICHIGAN or OHIO must
represent that the investment in a partnership does not exceed ten percent of
the subscriber's individual or joint net worth, exclusive of home, home
furnishings, and automobiles.
For TENNESSEE Residents. A resident of the State of TENNESSEE who
subscribes for interests must, at a minimum, represent in writing that he/she
has:
o an individual net worth of at least $250,000, exclusive of
home, home furnishings, and automobiles, and had during the
last tax year and estimates that he/she will have during the
current tax year, a gross income of at least $65,000, or
o a net worth of at least $500,000, exclusive of home, home
furnishings, and automobiles.
Additional Requirements.
Fiduciary Accounts. In the case of sales to IRAs, Keogh Plans, various
employee benefit plans and other similar fiduciary accounts. The suitability
standards may be met by the account or by each beneficiary of the account, or
where the fiduciary is the donor of the funds for investment in a partnership,
the suitability standards may be met by the fiduciary. These subscribers should
also carefully review the discussion under "Tax Aspects -- General Tax
Provisions -- Investment by Tax-Exempt Entities," which indicates, among other
things, that substantially all of the income from a partnership's operations
will constitute "unrelated business taxable income" for tax purposes and may
give rise to tax liability to the investor.
For CALIFORNIA Residents. Assignability or transfer of an interest is
limited so that no assignee or assignor, transferee or transfer or may hold less
than $5,000 in interests. See the special subscription instructions attached as
Exhibit C to this prospectus for restrictions that limit the transferability of
interests.
For NORTH CAROLINA Residents. The minimum subscription in a partnership
is five interests ($5,000). Although the managing partner may accept joint
ownership of interests, the minimum initial cash investment by each person
having such joint ownership may not be less than $5,000.
It is anticipated that each partnership will acquire interests in
federal oil and gas leases, thus subscriptions for interests will not be
accepted from a person who is not an eligible citizen. In general, an eligible
citizen is any person who is a citizen of the United States or is otherwise
eligible to be qualified to hold an interest in oil and gas leases on federal
lands, including offshore areas, under federal laws and regulations in effect
from time to time. Each prospective investor must represent in writing that he
or she is an eligible citizen.
For Transferees of Interests. Transferees of interests seeking to
become substitute general and limited partners must also meet the suitability
requirements discussed above, provided that the requirements with respect to net
worth and taxable income may be waived at the managing partner's discretion
under limited circumstances, including transfers of interests by an investor
partner to a dependent or to a trust for the benefit of a dependent or transfers
by will, gift, or by the laws of descent and distribution.
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SUBSCRIPTION PROCEDURE
An eligible subscriber may subscribe for interests in a partnership
prior to the end of the subscription period for the partnership by properly
completing, executing, and delivering the following documents to his soliciting
dealer:
a. A subscription agreement in the form attached as Exhibit D to this
prospectus; and
b. A check payable to the order of "Bank of America, Escrow Agent for
Mewbourne 99-00 Drilling Program" in an amount equal to the purchase price for
the number of interests to be purchased by that investor.
The managing partner will not accept any subscription agreement that
has been executed by someone other than the investor, except a subscription
agreement on the part of a fiduciary account that has been executed by an
individual having the legal power of attorney to so act. Unless a subscription
is rejected by the managing partner at any time prior to the admission of
general and limited partners to a partnership or the managing partner elects not
to admit general and limited partners to a partnership, fully paid subscriptions
in proper form will be deemed accepted, subject to reduction in accordance with
the subscription agreement. By its terms, the subscription agreement constitutes
a binding agreement of the subscriber. Subject to the right of the managing
partner to reject subscriptions, each subscriber will become an investor partner
in a partnership at the time he is admitted to the partnership. General and
limited partners will be admitted to a partnership contemporaneously with the
release of the funds from the escrow account, and thereafter general and limited
partners will be admitted to a partnership not later than the last day of the
calendar month in which their subscriptions were accepted by the managing
partner. Subscriptions will be accepted or rejected by the managing partner
within 30 days of their receipt or such other shorter time period as may be
required by applicable laws of the state in which the subscriber resides. If a
subscription is rejected, the subscription funds tendered in connection
therewith will be immediately returned to the appropriate subscriber without
interest or deduction for expenses. If general and limited partners are not
admitted to a partnership on or before the expiration of the subscription period
for interests in that partnership, all subscription funds relating to that
partnership will be immediately returned in full, together with any interest
thereon, to the appropriate subscribers.
Subscription funds will be deposited in an escrow account at Bank of
America, N.A., Tyler, Texas, or another federally insured institution designated
by the managing partner; provided that upon receipt and clearance of aggregate
subscription funds of $1,000,000 or more from subscribers that the managing
partner deems suitable to be general and limited partners in a partnership, the
managing partner may, upon written request, cause those subscription funds to be
withdrawn from the escrow account and to be deposited in an account established
for that partnership and all subscribers whose subscriptions have been accepted
shall be admitted as an investor partner in that partnership within 15 days
after such deposit. Thereafter, subscription funds will be deposited in a
partnership account with each subscriber whose subscription has been accepted
being admitted as an investor partner in that partnership no later than the last
day of the calendar month in which such subscription was accepted. Until
subscribers are admitted as general or limited partners in a partnership, no
expenses may be paid from the partnership account. Each subscriber whose
subscription has been accepted and who has been admitted as an investor partner
will be provided confirmation of such acceptance and admission. Funds deposited
in the escrow account or partnership account will be invested in time deposits,
short-term bank certificates of deposit, short-term governmental obligations,
U.S. treasury bills, or bank money market accounts and similar investments until
those funds are expended for partnership operations.
A subscriber whose funds are deposited in the escrow or partnership
account no fewer than five business days prior to the termination of the
subscription period for interests in the partnership will receive, within 60
days following the admission of such subscriber as an investor partner in the
partnership, interest earned on those funds from the date those funds cleared
the institution where that account is maintained and are invested to the date on
which such subscriber was admitted to the partnership as an investor partner in
the partnership. Although subscription funds generally clear an institution
within three to five business days following their deposit, no assurance can be
given that those proceeds will be clear within that period of time. All
subscription funds, together with any interest earned thereon, will be promptly
returned to each subscriber that is not admitted as an investor partner to a
partnership.
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After the subscription period for a partnership has expired, no
additional interests in the partnership will be offered or sold. Notice of the
admission of general and limited partners to a partnership and the percentage of
ownership of each investor partner in that partnership will be furnished to each
investor partner following their admission to the partnership.
Pending their use in partnership activities, the managing partner
intends to invest the balance of the capital contributions in time deposits,
short-term governmental obligations, U.S. treasury bills, money market accounts,
commercial paper and similar investments. Any interest earned on capital
contributions from investor general and limited partners will be allocated
solely to the investor general and limited partners, and will be distributed to
the general and limited partners periodically. See "Participation in Costs and
Revenues." Funds of a partnership will not for any purpose be commingled with
funds of any partnership, the managing partner or an affiliate of the managing
partner or any other entity.
No subscription agreement will be accepted until at least 5 business
days have elapsed from the date that the subscriber received a copy of this
prospectus.
CONVERSION OF GENERAL PARTNER INTERESTS
We anticipate that the general partner interest in a partnership held
by a general partner will be converted to a limited partner interest in that
partnership following the completion of that partnership's drilling activities;
which we anticipate will occur within approximately 8 to 15 months after the
funding of that partnership. Generally, the discussion in this prospectus
relating to limited partners and limited partner interests, other than the
discussion of the federal income tax consequences of an initial investment as a
limited partner, will apply to converted partners after the time of such
conversion. However, converted partners will continue to have the rights and
obligations of general partners with respect to activities occurring prior to
conversion, including liability for the partnership's obligations. See
"Liability of General and Limited Partners -- General Partners." Furthermore,
the tax treatment of converted partners will in some respects be determined by
their previous status as general partners. See "Tax Aspects --Partnership
Taxation -- Conversion of General Partner Interests" and "Tax Aspects -- Special
Features of Oil and Gas Taxation -- Passive Activity Loss Limitations." If the
managing partner determines that the conversion of the general partner interests
in a partnership to limited partner interests will have an adverse effect on the
general partners or the partnership, due to adverse tax consequences or other
reasons, the managing partner may delay the conversion or may elect not to
convert the general partner interests; provided that if the managing partner
determines that such conversion would not be in the best interests of the
general partners or the partnership, the insurance coverage limits as set forth
under "Proposed Activities -- Insurance" will not be reduced unless such
coverage becomes unobtainable or is only available at premiums which are
prohibitively more expensive than the premiums now being paid for such policies.
RIGHT OF PRESENTMENT
Each investor partner in a partnership may request in writing that the
managing partner purchase for cash all, but not less than all, of that investor
partner's interests on the terms and subject to the limitations set forth below.
The managing partner may cause its affiliate to fulfill its obligation to
purchase an investor partner's interests. Partners in a partnership formed in
1999 may make such requests in each of the years 2003 through 2008 and partners
in a partnership formed in 2000 may make such requests in each of the years 2004
through 2008. If the interests are subsequently listed on a national securities
exchange or are traded through the National Association of Securities Dealer's
Automated Quotation System or in the over-the-counter market, this right of
presentment may be terminated at any time at the option of the managing partner.
Any such listing could have an adverse effect on the tax consequences of an
investment in interests. See "Tax Aspects - Partnership Taxation." If the
obligation of the managing partner or its purchaser designee to purchase
interests from general and limited partners is determined to violate any
existing or future laws, such obligation will be eliminated or modified
appropriately.
The obligation of the managing partner to purchase interests in a
partnership in any single calendar year is limited to no more than 5% of the
total number of interests of that partnership outstanding at the beginning of
such calendar year; provided, however, the total amount of funds that the
managing partner directly and by means of a purchaser designee is required to
expend in any single calendar year to purchase partnership interests from
investors
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in all of the oil and gas drilling partnerships as to which the managing partner
or an affiliate of the managing partner serves as sponsor shall not exceed
$500,000. Additionally, if subsequent to December 31 of the year immediately
preceding the year in which the right of presentment is being exercised, the
price for either oil or gas received by a partnership from its program wells
decreases by 20% or more as compared to the price being received as of that
date, then the managing partner may in its sole and absolute discretion refuse
to purchase any interests in that partnership.
During the first calendar quarter of each of the years during which the
right of presentment exists, each investor partner in a partnership may request
in writing that the managing partner purchase all, but not less than all, of his
interests. Prior to May 31 of each such year, the managing partner will notify
each requesting investor partner of the amount that the managing partner or its
purchaser designee will pay to purchase each interest and those general and
limited partners shall have twenty (20) days from the receipt of that notice in
which to elect whether to present their interests for purchase. If a greater
number of interests are presented than the managing partner is required to
purchase, the interests to be purchased will be selected by lot or by such other
method as the managing partner deems reasonable. Interests that are not
purchased will not have any priority with respect to purchase in subsequent
years.
The purchase price paid to an investor partner upon repurchase of his
interests in a partnership will be the pro rata share represented by his
interests of the sum of:
o 65% of the value of future net revenues attributable to proved
developed producing reserves of that partnership, and
o 50% of the value of future net revenues attributable to proved
developed non-producing reserves of that partnership, as such
are determined by an independent expert selected by the
managing partner and after such value has been discounted as
described below, less the share of that partnership's debts,
expenses, and obligations of all kinds incurred and then
allocable to those interests.
The purchase price will be determined as of December 31 of the year
immediately preceding the year in which the right of presentment is being
exercised. Any cash distributions to an investor partner after December 31 and
before the date of purchase attributable to the interests being repurchased will
be deducted from the purchase price for his interests. The effective date of any
such sale for purposes of determining such deduction will be deemed to be the
day on which payment of the purchase price is tendered by the managing partner
or its purchaser designee.
In order to compute the price to be paid upon the purchase of
interests, a partnership will cause an independent expert to estimate annually
the future net revenues attributable to the partners' interests in that
partnership's proved reserves based upon then current costs and pricing for oil
and gas as of the December 31 of the year immediately preceding the year in
which the right of presentment is being exercised. Such future net revenues
attributable to proved reserves:
o will first be adjusted by the independent expert to reflect
the risks of production and development of such reserves and
any other economic contingencies that normally would be
considered by a purchaser of proved reserves and
o will then be discounted to present value at a rate equal to
10%.
A selling investor partner will be entitled to no further partnership
distributions with respect to the interests he has sold after the date on which
payment of the purchase price is tendered by the managing partner or its
purchaser designee.
Although the managing partner anticipates that its financial resources,
including its borrowing capabilities, will be sufficient to meet its purchase
obligations under the right of presentment, no assurance can be given that
contingencies will not arise which will require funding beyond the financial
resources committed to it. Therefore, there can be no assurance that either the
managing partner or its affiliates will have sufficient funds available to meet
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the obligation to purchase interests pursuant to the right of presentment. If
the managing general partner assigns or transfers its interest in a partnership,
the assignee of such interest will be required to assume the withdrawing
managing partner's obligations with respect to the right of presentment.
An investor who sells his interests pursuant to the right of
presentment may receive more or less total consideration than would be received
if the election to sell had not been made and, depending upon the success of the
partnership's activities and the timing of the sale, may realize a gain or loss
on such sale. Appraisals of future net recoverable reserves of oil and gas and
estimates of future net revenues to be received from such reserves are based on
variable and uncertain factors and assumptions, including the price at which
production can be sold, and amounts of actual production and net revenues will
vary from the estimates. Estimates made during the first few years of production
from a property will be based on relatively little production history and
generally are less reliable than estimates based on a longer production history.
Accordingly, reserve estimates and estimates of future net revenues from
production are likely to vary from year to year. For these and other reasons,
the price paid for purchased interests may be less than the fair market value or
initial price of such interests.
The sale of interests pursuant to the right of presentment will be a
taxable event to the selling investor partner. See "Tax Aspects - Special
Features of Oil and Gas Taxation - Sale of Interests."
ADDITIONAL FINANCING
General. The actual costs of the proposed drilling activities of a
drilling program may exceed the estimated costs of such activities and it is
possible that additional funds in addition to the initial contributions from the
participants in that drilling program may be required to complete such drilling
activities, to further develop the drilling program's oil and gas leases and to
pay for other drilling program operations. The partnership agreement does not
provide for any additional assessments, either mandatory or voluntary of any
general and limited partners. Thus, it is anticipated that a partnership's share
of such additional expenditures will be financed by partnership borrowings,
partnership revenues or the proceeds of sale of partnership properties. There
can be no assurance that such additional funds can be obtained, and if they
cannot be obtained a partnership might have to forego further drilling
activities or development of the related drilling program's oil and gas leases.
Also, the terms of oil and gas leases may bind the participants in the drilling
program to a specified drilling schedule and the inability of a partnership to
fund on a timely basis its portion of the cost of such additional specified
drilling could result in the forfeiture of a partnership's interest in such oil
and gas leases. Further, the inability to finance additional activities could
result in the sale of undeveloped acreage or farmouts to independent parties or
to affiliates of the managing partner including affiliated programs, under which
circumstances a partnership may not realize the full value of its properties.
Limitation on Borrowings. The partnership agreement authorizes the
managing partner to borrow money on behalf of a partnership and to mortgage or
pledge a partnership's property, including production from such property, as
security and to engage in any other method of financing customary in the oil and
gas industry. The sum of outstanding borrowings by a partnership may not at any
time exceed 20% of the aggregate capital contributions to the partnership. The
partnership agreement permits borrowing to finance partnership operations,
including without limitation drilling and completion activities. A partnership
may borrow funds only if the lender agrees that it will have no recourse against
the individual general and limited partners. Borrowings may be secured by a
partnership's assets or income and may be made with or without recourse to the
managing partner. The managing partner contemplates, however, that any borrowing
by a partnership will be incurred without recourse to the managing partner and
will be secured by the partnership's property. The managing partner does not
presently intend to guarantee nonrecourse loans by third parties to a
partnership. A partnership's ability to borrow will depend in large part upon
the success of its drilling activities. There is no assurance that the managing
partner will be able to secure nonrecourse financing in an amount sufficient to
conduct drilling operations if such financing is sought, that any such financing
can be secured without the guarantee of the managing partner or an affiliate of
the managing partner or that financing can be obtained at satisfactory interest
rates or terms. A partnership's borrowings will be repaid from the partnership
revenues allocable to the partners, reducing the amounts available for
distribution to them and creating the risk that an investor partner's share of a
partnership's taxable income may be greater than the amounts distributed to him.
See "Tax Aspects -- Partnership Taxation -- General."
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The partnership agreement further authorizes the managing partner and
its affiliates to make loans to a partnership for purposes permitted by the
partnership agreement. Interest charged by the managing partner or the affiliate
of the managing partner on advances made by the managing partner or such
affiliate to a partnership will be at a rate not in excess of the lesser of the
effective rate then being paid by the managing partner or the affiliate for
similar type borrowings or the highest lawful rate, and in no event at a rate in
excess of the amount which would be charged to the partnership by independent
third parties for the same purpose. The managing partner or an affiliate of the
managing partner may not receive points or other financing charges or fees on
advances made by it to a partnership. In addition, a partnership may not make
loans to the managing partner or any affiliate of the managing partner. The
managing partner may pledge its interest in a partnership but may not pledge
partnership assets for its own benefit. The managing partner however, may pledge
its directly owned interest in drilling program properties at any time and may
sell its working interests in drilling program properties pursuant to the
drilling program agreement after the cessation of substantially all drilling
activities of such drilling program.
PLAN OF DISTRIBUTION
Subscription for interests will be solicited by soliciting dealers that
are members of the National Association of Securities Dealers, Inc. on a
"minimum/maximum best efforts" basis. The soliciting dealers must sell the
minimum number of interests offered ($1,000,000) if any interests are sold and
are required to use only their best efforts to sell the maximum number of
securities offered ($10,000,000). Mewbourne Securities, Inc., an affiliate of
the managing partner, is a broker-dealer which may act as a soliciting dealer
for the partnerships. While there is no limitation on the number of interests
that may be sold by Mewbourne Securities, it is anticipated that the number of
interests, if any, sold by Mewbourne Securities will not be material.
Each soliciting dealer will receive sales commissions and due diligence
fees in an aggregate amount of up to 8.5% of the sales price of interests sold
by that soliciting dealer. No sales commissions or due diligence fees will be
paid on sales of interests to:
o officers, directors, or employees of the managing partner or
its affiliates,
o officers, directors, employees, or registered representatives
of a soliciting dealer, or
o an affiliate of the managing partner.
The total commission and fees paid to a particular soliciting dealer
may be comprised of a sales commission in an amount up to 8% of the sales price
of interests in a partnership sold by the soliciting dealer, and a due diligence
fee in an amount of up to .5% of the sales price of interests sold by the
soliciting dealer; provided that the aggregate commission and fees paid to a
soliciting dealer shall not exceed 8.5% of the sales price of interests in a
partnership sold by the soliciting dealer.
The managing partner has engaged its affiliate, Mewbourne Securities,
Inc. to serve as the dealer manager for purposes of forming a soliciting dealer
group comprised of members of the National Association of Securities Dealers,
Inc. Mewbourne Securities, Inc., in its role as dealer manager and each
soliciting dealer participating in the offering of the interests may be deemed
to be an underwriter within the meaning of the Securities Act of 1933. The
managing partner and the partnerships have agreed to indemnify the soliciting
dealers, including Mewbourne Securities, Inc., against various civil
liabilities, including liabilities arising under the Securities Act of 1933.
In offering the interests, in addition to this prospectus, the managing
partner has prepared and intends to provide soliciting dealers and investors
with a brochure entitled "Mewbourne Energy Partners" concerning the offering of
the interests. Prior to the distribution, such sales materials must be filed
with and reviewed by the Securities and Exchange Commission, various state
securities administrators and by state regulatory authorities. When utilized,
such sales material must be accompanied or preceded by a prospectus. No other
sales material has been authorized by the managing partner for use in connection
with this offering.
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INVESTMENT OBJECTIVES
Each partnership will participate in a drilling program, to be managed
by Mewbourne Oil Company in its capacity as drilling program manager, consisting
of the acquisition and development of oil and gas prospects. The primary
investment objective of each partnership is to conduct oil and gas drilling and
development activities on prospects in an attempt to establish long-life oil and
gas reserves. In addition, a drilling program's structure is intended to result
in tax benefits, consisting principally of deductions for intangible drilling
costs, depletion, and depreciation. To the extent that the operations of a
partnership and the related drilling program result in a net loss for a taxable
period, general partners will be able to claim their respective shares of the
deductions giving rise to such loss in the current year, but limited partners
will not be able to claim their shares of the deductions comprising such loss in
the current year except to the extent they have net passive income from other
sources. See "Proposed Activities" and "Tax Aspects."
PROPOSED ACTIVITIES
Pursuant to the drilling program agreement, the activities of the
partnerships will focus upon the acquisition of oil and gas leases covering
prospects, the drilling of development wells, and the production and operation
of the resulting properties. In addition to development wells, at the discretion
of the managing partner, up to 20% of a partnership's capital contributions may
be expended in connection with activities relating to exploratory wells. All
drilling activities involve a high degree of risk with exploratory wells
presenting a higher degree of risk than development wells. Mewbourne Development
Corporation will act as the managing partner of each partnership. See "Summary
of Partnership Agreement and Drilling Program Agreement -- Rights and Powers of
the Managing Partner." Mewbourne Oil Company will act, in its individual
capacity, as the drilling program manager of each drilling program and as
operator under each operating agreement.
The managing partner intends to cause the partnerships to engage in
drilling for oil and gas on a number of different prospects, none of which is
yet determined. For a number of reasons, it is impossible at this time to
predict with certainty the drilling activities that will be conducted by either
partnership. Among these reasons are that neither partnership has yet to acquire
working interests or other rights to any particular oil and gas leases and it
will do so only after the prospective offering of interests is completed.
Further, the amount of capital that will be raised by a partnership as a result
of this offering has not yet been determined. The result of the initial drilling
activities conducted by a partnership also may have a significant effect on the
number and location of subsequent wells. Decisions as to the management,
business, and affairs of a partnership will be made by the managing partner
based upon its judgment at the time as to the best interests of the partnership.
DEVELOPMENT POLICY
Decisions as to the number and location of the prospects in which a
partnership will invest and as to the amounts spent on drilling will be made
solely by the managing partner for the partnership and by the drilling program
manager on behalf of the related drilling program. The managing partner intends
to cause each partnership to acquire an interest in as many prospects as
practicable in order to best diversify the risks associated with drilling for
oil and gas, however, the number and type of wells to be drilled by a
partnership will vary according to the amount of funds raised, the costs of each
well and the size of the fractional working interests selected in each well.
The managing partner will designate in writing the area comprising a
prospect in which a partnership is to acquire an interest pursuant to the
related drilling program agreement at or prior to the date on which a well is
spudded (i.e., boring is commenced) on such prospect. The prospect area may be
enlarged or contracted from time to time by the managing partner on the basis of
subsequently acquired geological and engineering data to define or redefine the
productive limits of the original area of the prospect. Notwithstanding the
foregoing, with respect to any large, continuous known stratigraphic trend which
could be defined as a continuous reservoir, the managing partner, acting in good
faith, shall be permitted to limit or reduce the area of a prospect to the
minimum area permitted by state law or local practices whichever is applicable,
to protect against drainage from adjacent wells.
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AREA OF GEOGRAPHIC CONCENTRATION
The managing partner anticipates that all of a partnership's funds
available for drilling activities will be expended in the Permian Basin, located
in West Texas and Southeastern New Mexico, and also the Anadarko Basin, located
in Western Oklahoma, the Texas Panhandle and Southwest Kansas. However, if the
managing partner determines that it is in the best interest of a partnership to
conduct additional drilling activities in other onshore geographic areas of the
United States, the related drilling program and the partnership may expend
available funds in such areas. At the present time, the partnerships are not
committed to any specific drilling sites. No geological, engineering or other
information about any geographic area, other than that contained in this
prospectus, will be furnished to any prospective investor and, for that reason,
no person should invest in a partnership on the basis of any expectation
regarding the results of drilling on any particular drilling location.
The Permian Basin encompasses a large area of approximately 75,000
square miles located in West Texas and Southeastern New Mexico. Since 1921, over
26 billion barrels of oil and 76 trillion cubic feet of natural gas have been
produced from the Permian Basin.
Two interior basins, the Midland Basin in West Texas and the Delaware
Basin in West Texas and Southeastern New Mexico, subdivide the Permian Basin.
Although drilling depths range from very shallow to more than 20,000 feet, the
managing partner and its affiliates target multiple Pennsylvanian and Permian
age sandstone and carbonate reservoirs along the shelf and shelf-slope areas
within the interior subbasins, which lay at depths ranging from 3,000 to 13,000
feet.
Over the past 34 years, Mewbourne Oil Company and its affiliates have
conducted operations throughout the Permian Basin. Mewbourne Oil Company
currently operates approximately 172 wells in the Permian Basin and Mewbourne
Oil Company and its affiliates have drilled approximately 168 commercially
productive oil and gas wells in the Permian Basin. These historical results are
not indicative of the results that may be achieved by the partnerships and such
results should not be used by potential investors in making an investment
decision. In addition, a commercially productive well may not necessarily have
sufficient production to recover both operating expenses and drilling and
development costs. Most current operations are centered on the shelf and along
shelf slope areas of the Delaware Basin located in Eddy, Chaves, and Lea County,
New Mexico. It is anticipated that each partnership will, through the related
drilling program, conduct a portion of its oil and gas drilling and development
activities in this area of the Permian Basin. Predominantly, wells drilled by
Mewbourne Oil Company in this region of the Permian Basin are classified as gas
wells but produce both oil and gas. However, Mewbourne Oil Company and its
affiliates have drilled a number of wells in this area which have been
classified as oil wells.
The Anadarko Basin of Western Oklahoma, the Texas Panhandle and
Southwestern Kansas encompasses an area of approximately 60,000 square miles.
First production was established in 1917 and since that time over 6 billion
barrels of oil and 80 trillion cubic feet of natural gas have been produced from
this geological basin.
Production in the Anadarko Basin ranges from several hundred feet to
over 26,000 feet in depth. Over the past 23 years, Mewbourne Oil Company and its
affiliates have drilled approximately 344 commercially productive wells that
have targeted Pennsylvanian, Mississippian, Devonian, and Silurian age sandstone
and carbonate reservoirs along the shelf area of Western Oklahoma and the Texas
Panhandle at depths of between 6,000 and 13,000 feet. Mewbourne Oil Company
currently operates approximately 215 wells in the Anadarko Basin. It is
anticipated that each partnership will, through the related drilling program,
conduct a portion of its drilling and development activities along the shelf
area of Western Oklahoma, the Texas Panhandle and Southwest Kansas. A majority
of the wells drilled by Mewbourne Oil Company over the past 23 years in this
region of the Anadarko Basin have been classified as gas wells but produce both
oil and gas. However, Mewbourne Oil Company and its affiliates have drilled a
number of wells in this area which have been classified as oil wells.
PROSPECT EVALUATION
Mewbourne Oil Company currently employs 15 engineers, 8 geologists and
7 landmen which are available to assist in prospect origination for each
drilling program. It is anticipated that Mewbourne Oil Company, as drilling
program manager, will conduct substantially all prospect origination for each
drilling program, although a program
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may conduct operations on prospects originated by third parties. Prospect
origination is the process of formulating a geological or geophysical concept
and negotiating for the acquisition of a sufficient interest in oil and gas
leases covering the area to warrant drilling and testing. Before selecting a
prospect for a drilling program, the drilling program manager will review all
available engineering and geological data, which may include, but is not limited
to, logs, completion reports and plugging reports for wells located in the
vicinity of the proposed prospect.
COST ESTIMATES
Prior to conducting drilling activities on behalf of a partnership, the
managing partner will estimate the costs to be incurred by a partnership in
drilling the wells planned for the partnership. Such estimates will be based
upon the managing partner's historic experience and contracts to be entered into
by the managing partner or its affiliates and non-affiliated drilling
contractors fixing the footage drilling rates, and in limited circumstances
stimulation costs to be incurred by the partnership.
ACQUISITION OF LEASES
The decision for a partnership to acquire an interest in a prospect,
the size and nature of the interest acquired and the terms of each such
acquisition will be based upon evaluations of the properties conducted by the
managing partner after consultation with the drilling program manager or
independent geologists or engineers. To assist in conducting and interpreting
such evaluations, the managing partner or its affiliates employ a staff of
technical personnel. See "Management."
TRANSACTIONS WITH AFFILIATES
Sale of Leases to a Partnership. All oil and gas leases to be acquired
by a partnership or related drilling program will be selected by the managing
partner from a variety of prospects, substantially all of which will be
originated by the drilling program manager. The partnership agreement provides
that neither the managing partner, nor any affiliate thereof, including an
affiliated program, is permitted to sell, transfer or convey any oil and gas
lease to a partnership, directly or indirectly, except pursuant to a transaction
which is fair and reasonable to the partnership and in accordance with the
following restrictions:
(a) The managing partner and its affiliates may only sell an
oil and gas lease to a partnership or related drilling program at a
price equal to its lease acquisition costs unless the managing partner
has reasonable grounds to believe that the lease acquisition costs is
materially more than the fair market value of the oil and gas lease. If
the managing partner determines that the lease acquisition costs is
materially more than its fair market value, then, except as described
below, the oil and gas lease may not be sold to a partnership or the
related drilling program at a price that is in excess of its fair
market value. An affiliated program may sell an oil and gas lease to a
partnership or the related drilling program at its lease acquisition
costs even if its lease acquisition costs is materially more than the
fair market value of the oil and gas lease if:
o The affiliated program has held the oil and gas lease
for more than two years; and
o The economic interest of the managing partner and its
affiliate in the affiliated program is substantially
similar to, or less than, their economic interest in
the drilling program.
(b) If the managing partner or its affiliate sells any oil and
gas lease within a prospect to a partnership, it must, at the same
time, sell to the partnership and the partnership must buy an equally
proportionate interest in all other oil and gas leases that it owns in
the same prospect.
(c) If at any time within a period of five years from a
partnership's funding, the managing partner or its affiliate proposes
to acquire an interest from a non-affiliated person in a prospect in
which the partnership possesses an interest or in a prospect in which
the partnership's interest has been terminated
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without compensation within one year preceding such proposed
acquisition, the following conditions will apply:
o if the managing partner or any affiliate of the
managing partner does not currently own property in
the prospect separately from the partnership, then
neither the managing partner nor any affiliate of the
managing partner will be permitted to purchase an
interest in the prospect; and
o if the managing partner or any affiliate of the
managing partner currently owns a proportionate
interest in the prospect separately from the
partnership, then the interest to be acquired will be
divided between that partnership and the managing
partner or an affiliate of the managing partner in
the same proportion as is the other property in the
prospect; provided, however, if cash or financing is
not available to the partnership to enable it to
consummate a purchase of the additional interest to
which it is entitled, then neither the managing
partner, nor any affiliate thereof may purchase any
additional interest in the prospect during such five
year period.
(d) If the area constituting a partnership's prospect is
subsequently enlarged to encompass any area in which the managing
partner or any affiliate of the managing partner owns a separate oil
and gas lease, such separate oil and gas lease or a portion of such
lease must be sold, transferred, or conveyed to the partnership, if the
activities of the partnership were material in establishing the
existence of proved undeveloped reserves that are attributable to such
oil and gas lease.
(e) A sale, transfer, or conveyance of less than all of the
ownership of the managing partner or any affiliate of the managing
partner in any oil and gas lease is prohibited unless the interest
retained by the managing partner or such affiliate is a proportionate
working interest, the respective obligations of the managing partner or
such affiliate and the partnership are substantially the same after the
sale of the interest by the managing partner or such affiliate, and its
interest in revenues does not exceed the amount proportionate to its
retained working interest. Neither the managing partner, nor any
affiliate of the managing partner may retain any overriding royalty
interest or other burden on an interest conveyed to a partnership.
(f) For the purposes of the preceding four paragraphs, the
term "affiliate" does not include an affiliated program in which the
interest of the managing partner or an affiliate of the managing
partner is substantially similar to or less than its interest in the
partnership.
(g) If a partnership acquires an oil and gas lease pursuant to
a farmout or joint venture from an affiliated program, the managing
partner's, and any of its affiliate's aggregate compensation associated
with the property and any direct or indirect ownership interest in the
property may not exceed the lower of the compensation and ownership
interest the managing partner and such affiliates could receive if the
property were separately owned or retained by either the partnership or
such other affiliated program.
A determination of fair market value must be supported by an appraisal
from an independent expert. Such opinion and any associated supporting
information must be maintained in the drilling program's records for at least
six years.
Purchase of Leases from a Partnership. Neither the managing partner nor
any affiliate of the managing partner, including affiliated programs, may
purchase or acquire any oil and gas lease from a partnership, directly or
indirectly, except pursuant to transactions that are fair and reasonable to the
partnership and then subject to the following conditions:
o A sale, transfer, or conveyance, including a farmout, of an
oil and gas lease not having any proved developed reserves
attributable to it from a partnership to the managing partner
or its affiliate, other than an affiliated program, must be
made at the higher of the lease acquisition costs or fair
market value.
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o A sale, transfer, or conveyance of an oil and gas lease having
proved developed reserves attributable to it from a
partnership to the managing partner or its affiliate, other
than an affiliated program in which the interest of the
managing partner or its affiliate is substantially similar to
or less than its interest in the partnership, is not permitted
except in connection with the liquidation of the partnership
and then only at fair market value.
o Except in connection with farmouts or joint ventures made in
compliance with the restrictions described in paragraph (b)
above under the heading "Sales of Leases to a Partnership," a
transfer of an undeveloped oil and gas lease from a
partnership to an affiliated program must be made at fair
market value if the oil and gas lease has been held for more
than two years; otherwise, if the managing partner deems it to
be in the best interest of the partnership, the transfer may
be made at the lease acquisition costs.
o Except in connection with farmouts or joint ventures made in
compliance with the restrictions described in paragraph (b)
above under the heading "Sales of Leases to a Partnership," a
transfer of any oil and gas lease from a partnership to an
affiliated program, whose investment objective is to directly
acquire, hold, operate and/or dispose of producing oil and gas
properties, must be made at fair market value if the oil and
gas lease has been held for more than six months or there have
been significant expenditures made in connection with the oil
and gas lease; otherwise, if the managing partner deems it to
be in the best interest of the partnership, the transfer may
be made at the lease acquisition costs as adjusted for
intervening operations.
A determination of fair market value must be supported by an appraisal
from an independent expert. Such opinion and any associated supporting
information must be maintained in the drilling program's records for at least
six years.
Participation by Mr. Mewbourne. Mr. Mewbourne has historically invested
directly or indirectly in the drilling and development activities of Mewbourne
Oil Company and its affiliates during the past 34 years. In addition he has been
an investor in the joint ventures and drilling agreements through which other
investors participated in various Mewbourne Oil Company managed programs. Mr.
Mewbourne's annual participation varied considerably both in level of investment
and form, but in general approximated 25% to 50% of the annual expenditures.
Mr. Mewbourne and/or affiliates intend to invest alongside each
partnership in the activities of the related drilling program, however, there is
no assurance that the amount of Mr. Mewbourne's participation will be in
accordance with his historical custom. The amount of such investment will be
subject to many variables, including the availability of working interests in
the oil and gas leases, the amount of capital available to the partnerships from
subscriptions, the timing of the drilling activities, and other such matters.
FARMOUTS
A partnership will acquire only those oil and gas leases that are
reasonably required for the stated purpose of the partnership, and no oil and
gas leases will be acquired for the purpose of subsequent sale or farmout,
unless the acquisition of such oil and gas leases by the partnership is made
after a well has been drilled to a depth sufficient to indicate that such an
acquisition is believed to be in the best interests of the partnership.
The necessity to enter into farmouts is most likely to occur when a
partnership has insufficient funds to bear development costs accompanying an oil
and gas lease or where the development costs or attendant risks are substantial.
The managing partner may arrange for the development or disposition of a
partnership's oil and gas leases by farmout arrangements with third parties or
affiliates, including an Affiliated Program, if the managing partner, in
exercising the standard of a prudent operator, determines that:
o a partnership lacks sufficient funds to drill on the oil and
gas leases and cannot obtain suitable alternative financing
for such drilling,
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o the oil and gas leases have been downgraded by events
occurring subsequent to their acquisition by that partnership
so that the drilling of the oil and gas leases would no longer
be desirable to the partnership,
o drilling on the oil and gas leases would result in an
excessive concentration of a partnership's funds in one
location creating, in the opinion of the managing partner,
undue risk to the partnership, or
o the best interests of a partnership would be served by the
farmout.
A partnership will not farmout an oil and gas lease for the primary
purpose of avoiding payment of its costs related to drilling such oil and gas
lease or prospect.
A partnership may also farmin oil and gas leases from third parties or
its affiliates, including affiliated programs, in partial or in full
consideration for its agreement to drill one or more wells thereon.
Any farmouts between a partnership and the managing partner or an
affiliate of the managing partner will be on terms substantially consistent
with, in the opinion of the managing partner, those available from
non-affiliated third parties in the same geographic area for similar
arrangements. No farmout shall be entered into between a partnership and the
managing partner or an affiliate of the managing partner unless the managing
partner, exercising the standard of a prudent operator, shall determine that the
farmout is in the best interests of that partnership and the general and limited
partners. A partnership's authority to enter into farmouts with the managing
partner or an affiliate of the managing partner is subject to the same
restrictions as its authority to purchase property from or sell property to the
managing partner or an affiliate. See "-- Transactions with Affiliates" above.
For a discussion of the prudent operator standard of conduct, see "Conflicts of
Interest -- Fiduciary Responsibility of the Managing Partner."
Any decision with respect to farmouts and farmins and the terms of any
such farmout or farmin to or from a drilling program will involve conflicts of
interest, as the managing partner may benefit from cost savings and reduction of
risk, and in the event of a farmout or farmin to or from an Affiliated Program,
the managing partner will represent both programs involved in the transaction.
See "Conflicts of Interest."
For a discussion of federal income tax risks and considerations
associated with farmouts, see "Tax Aspects --Special Features of Oil and Gas
Taxation --Farmouts and Backin Interests."
OPERATIONS
All administration of each drilling program, including the origination
of prospects and the supervision of drilling and completion activities with
respect to those operations for which it is acting as operator, will be
conducted by Mewbourne Oil Company in its capacity as the drilling program
manager. All management functions of a partnership will be conducted by
Mewbourne Development Corporation in its capacity as managing partner. The
drilling program manager will perform all operating services relating to program
wells, and will be entitled to be reimbursed for such services in an amount
equal to all charges, including certain overhead charges, which constitute
direct and indirect charges under the operating agreement or other applicable
operating agreements incurred by the drilling program manager in connection with
drilling or operating a program well, including an initial fixed rate,
per-month, overhead charge of $780 for each producing well and $7,420 for each
drilling well. The amount of the fixed rate overhead charges have been
determined based upon:
o The anticipation that each partnership's activities will be
conducted in the Permian Basin, located in West Texas and
Southeastern New Mexico and also the Anadarko Basin, located
in Western Oklahoma, the Texas Panhandle and Southwest Kansas;
o The managing partner's estimate of the current fixed rate
overhead charges charged by other non-affiliated operators in
the anticipated area of operations; and
o guidelines set by the Council of Petroleum Accountants
Societies of North America.
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The drilling program manager and affiliates of the drilling program
manager currently employ approximately 97 persons on a full time basis, many of
whom will be engaged in some aspect of a drilling program's activities. In
addition to its own employees, the drilling program manager may utilize the
services of consultants for well drilling and completion activities, production
accounting and other activities. The managing partner currently employs 3
persons, all of whom are members of the drilling program manager's executive
management group.
Under the drilling program agreement, the drilling program manager has
agreed to act as operator with respect to drilling and production operations
conducted on each program well, except in those instances in which:
o the oil and gas lease on which such program well is to be
drilled is already subject to an existing operating agreement
under which a third party has been designated as operator,
o the requisite number of third parties being joint working
interest owners in such well elect another entity as operator,
or
o the drilling program manager determines in good faith that it
is not in the best interests of the participants in the
drilling program and of the drilling program manager for it to
act as operator.
In any case in which the drilling program manager or its affiliate acts
as operator for a drilling program's properties or provides other services or
materials to a drilling program, it will do so only pursuant to a written
agreement and only on terms and conditions comparable to those entered into by
non-affiliated parties in the same area. Any such agreement will precisely
describe the services to be rendered and all compensation to be paid and will
require a partnership and its partners to pay only that portion of the fees
allocable to their working interest. Fees received by the drilling program
manager or its affiliate under any such operating agreement may constitute
additional compensation. See "Compensation and Reimbursement."
With respect to each program well for which the drilling program
manager is to serve as operator, all operations relating to the program well,
including without limitation, all costs and expenditures of drilling, testing,
completing, equipping, and operating the program well shall be conducted
pursuant to an operating agreement between the drilling program manager as
operator, and the participants in the drilling program as non-operator, with the
operating agreement to be substantially in the form and substance as the
operating agreement attached to this prospectus as Attachment B to the drilling
program agreement. In the event, at the time of acquisition of an oil and gas
lease by the drilling program, such oil and gas lease is subject to another
operating agreement or if the drilling program manager enters into an operating
agreement with third parties being joint working owners in such program well,
nevertheless, the operating agreement between the drilling program manager and
the participants in the drilling program shall govern operations as between
them. However, the drilling program manager and the managing partner shall have
the right to amend the operating agreement between the drilling program manager
and the participants in the drilling program covering specified oil and gas
leases in order to conform to such other operating agreement, except that the
operating agreement may not be amended in any manner that the managing partner
determines will adversely affect a partnership or the general and limited
partners in any material respect. The drilling program manager shall have the
right to charge the joint account under the operating agreement between the
drilling program manager and the participants in the drilling program a share
attributable to the participants' working interest of any costs or expenses
incurred by the drilling program manager under such other operating agreement
which are not otherwise provided for in the drilling program agreement or in the
operating agreement between the drilling program manager and the participants in
the drilling program.
TITLE TO PARTNERSHIP PROPERTIES
Program wells will be drilled on oil and gas leases having limited
warranties of title, or none at all. As is customary in the oil and gas
industry, the only investigation of title made at the time of acquisition of
undeveloped properties is a preliminary review of local real estate records.
Prior to drilling a program well on a prospect, the drilling program manager
shall cause to be done or be satisfied that there has been done such title
examination and other title curative work as the drilling program manager in its
sole discretion, shall determine to be necessary or appropriate in accordance
with general industry standards. In addition, a drilling title opinion is
generally secured before commencement of drilling operations. Title to a
partnership's properties will be held temporarily in the name
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of the drilling program manager in the capacity of nominee, with record title
being transferred to a partnership following commencement of production from a
program well. In certain circumstances a partnership will not receive record
title. These circumstances include without limitation:
o where record title is held in the name of a third party, as in
the case where pursuant to industry practice, record title is
held by a third party, such as a pooled operating interest, or
o in the case of a federal, state, or other oil and gas lease,
where an approval to the transfer is required.
In cases where approval of a third party is required in order to
transfer a working interest in an oil and gas lease, the drilling program
manager will take steps to obtain approval of appropriate third parties to the
assignment to the participants in the drilling program as promptly as possible.
INSURANCE
The managing partner expects to conduct the business of each
partnership and to cause the drilling program manager to conduct the business of
each drilling program in a manner intended to limit, to the extent practicable,
the exposure of the general partners to liability in excess of their capital
contributions to that partnership. See "Liability of General and Limited
Partners -- General Partners" for a discussion of the potential liability of
general partners. It is anticipated that drilling activities of the partnerships
will be conducted in the medium depths between 3,000 to 13,000 feet of the
Northwest Shelf, and the shelf of the Delaware and Midland Basins, and Central
Basin Platform geological sub-regions of the Permian Basin and the shelf and the
shelf slope area of the Anadarko Basin where the probability of encountering
severely over-pressured formations and other hazards associated with drilling
activities is less likely. The drilling program manager and its affiliates will
maintain extensive insurance coverage to protect, to the extent practicable,
each partnership from losses that could arise in connection with program
activities, including legal and contractual liability to third parties.
The drilling program manager and its affiliates expect to retain the
insurance coverage described below, unless such coverage becomes unobtainable or
is only available at premiums which are prohibitively more expensive than the
premiums now being paid for such policies. However, the drilling program manager
and its affiliates will not be required to retain operator's extra expense and
care, custody and control insurance coverage for a partnership after the related
drilling program has completed its drilling activities.
A brief discussion of the insurance policies that the drilling program
manager and its affiliates have obtained on behalf of themselves and the
partnerships is set forth below. Each of those policies is subject to terms,
conditions, exclusions, and limitations that may preclude a partnership from
recovering damages, expenses, and liabilities suffered by that partnership,
including typically, damages and liabilities arising from or caused by:
o the violation of any federal, state, or local statute,
ordinance, or regulation,
o fines, penalties, and punitive and exemplary damages,
o war and terrorist acts,
o normal operation including wear and tear,
o faulty design, and
o the fraud, disloyalty, theft, malicious acts or other similar
conduct of employees.
Other exclusions that are customary in the insurance and oil and gas industries
may also apply, including exclusions relating to pollution and environmental
damages. The drilling program manager believes that from time to time the terms,
conditions, exclusions, and limitations described in this section of the
prospectus may prevent a partnership from recovering the full amount of any
damages, expenses, and liabilities suffered by the partnership which arise in
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the event of an accident. In some cases a partnership may not recover any
portion of such damages, expenses, and liabilities.
If the drilling program manager and its affiliates cease to retain the
coverage described below for any reason for a period of more than 20 days during
the subscription period for a partnership, the offering of interests in that
partnership shall cease, and subscribers for interests who have not been
admitted as general and limited partners in the partnership shall receive a
refund of their subscription funds. The managing partner will notify general and
limited partners of any material reduction in the insurance coverage of a
drilling program and partnership. Such notice shall be given thirty days in
advance of the change in insurance coverage. In addition, if a drilling program
or a partnership has its insurance coverage materially reduced for any reason,
the partnership will halt all drilling activity until such time as comparable
replacement coverage is obtained.
The drilling program manager and its affiliates maintain comprehensive
general liability, employers liability, and commercial automobile insurance
policies that generally protect the insured against the routine hazards
encountered by the drilling program manager, its affiliates and its employees
and agents in the conduct of the business of the drilling program manager and
its affiliates. The coverage amount under each of these policies is limited to
$1,000,000 per occurrence. In addition, the drilling program manager and its
affiliates maintain a comprehensive energy package and an excess liability
policy that together provide an additional coverage amount of $50,000,000 per
occurrence. The comprehensive energy package and excess liability policy are in
effect and are renewed annually, but may be cancelled by the insurance
underwriters upon a minimum of 60 days written notice.
The physical damage section of the comprehensive energy package, which
has a coverage limit of $5,000,000 per occurrence, generally protects the
insured against all risks of direct physical loss or damage to all personal
property, except drilling rigs and related equipment, vehicles, oil and gas, and
various other personal property, for which the insured has liability or is
legally liable, subject to a maximum deductible of $5,000 per occurrence or
$25,000 in the case of earthquake.
The operators extra expense/seepage and pollution section of the
comprehensive energy package, which has a coverage limit of $3,000,000 for land
wells less than 10,000 feet in depth and a limit of $10,000,000 for wells
greater than 10,000 feet in depth, generally protects the insured from:
o the costs to regain control of a well that goes out of
control, costs to redrill or restore a well which has been
lost or otherwise damaged as a result of an out of control
well,
o third party claims for property damage relating to seepage,
pollution, or contamination arising from a well out of control
and the cost of cleaning up such substances,
o loss, damage, or expense arising from the uncontrollable flow
of oil, gas, or water from one subterranean stratum to another
through the bore of a well, and
o evacuation expense if ordered by a governmental agency.
The excess umbrella liability policies, which have coverage limits of
$50,000,000, generally protect the insured against all liabilities imposed upon
an insured by law or assumed under contract or agreement by the insured for
damages on account of personal injuries, property damage, or advertising
liability such as libel, slander, defamation and invasion of privacy caused by
or arising out of an occurrence happening anywhere in the world. Injury and
damage arising from seepage, pollution, or contamination is covered only if
caused by a sudden, unintended, and unexpected happening. Injury and damage
arising from pollution is not covered for sites used in handling, processing,
treatment, storage, or disposal of waste substances or the transportation of
waste substances.
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THE MANAGING PARTNER'S POLICY REGARDING ROLL-UP TRANSACTIONS
Although the managing partner has no intention of causing either
partnership to engage in a roll-up transaction, it is possible at some
indeterminate time in the future that a partnership will become so involved. A
roll-up means a transaction involving the acquisition, merger, conversion, or
consolidation, either directly or indirectly, of a partnership and the issuance
of securities by the "roll-up entity." The term "roll-up" does not include a
transaction involving the conversion to corporate, trust, or association form of
only a partnership if, as the consequence of the transaction, there will be no
significant adverse change in any of the following:
o voting rights,
o the term of existence of the entity (formerly the
partnership),
o compensation to the managing partner and its affiliates, or
o the entity's investment objectives.
For the purposes of the foregoing, a "roll-up entity" means a
partnership, trust, corporation, or other entity that would be created or
survive after the successful completion of a proposed roll-up transaction. In
the case of transactions excluded from the definition of a roll-up, the
additional protections for general and limited partners described below would
not be available to the general and limited partners. For the purposes of
determining whether or not a transaction constituted a roll-up, the managing
partner would make the determination as to whether or not there would be no
"significant adverse change" in voting rights, the term of existence,
compensation, or investment objectives. The managing partner realizes that to
some extent the determination of whether or not such a change would be
"significant" or "adverse" may vary from investor partner to investor partner.
Accordingly, the managing partner intends to interpret the terms "significant"
and "adverse" broadly if it is ever called upon to do so and will use its best
efforts to interpret those terms as to their applicability to any reasonable
investor partner, and not only as to what it perceives to be the circumstances
of a majority of the general and limited partners.
The partnership agreement provides various policies in the event that a
roll-up should occur in the future. These policies include:
o An appraisal of all partnership assets will be obtained from a
competent Independent Expert, and a summary of the appraisal
will be included in a report to the general and limited
partners in connection with a proposed roll-up.
o Any investor partner who votes "no" on the roll-up proposal
would be offered a choice of:
-- accepting the securities of the roll-up entity
offered in the proposed roll-up, or
-- either (a) remaining a limited partner or general
partner in the partnership and preserving his or her
interest in that partnership on the same terms and
conditions as existed previously, or (b) receiving
cash in an amount equal to his or her pro-rata share
of the appraised value of the net assets of that
partnership.
o A partnership will not participate in a proposed roll-up:
-- which would result in the diminishment of the general
and limited partners' voting rights in the
partnership agreement under the roll-up entity's
organizational documents,
-- which includes provisions which would operate to
materially impede or frustrate the accumulation of
shares by any purchaser of the securities of the
roll-up entity, except to the minimum extent
necessary to preserve the tax status of the roll-up
entity,
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-- which would limit the ability of an investor partner
to exercise the voting rights of its securities in
the roll-up entity on the basis of the number of
roll-up entity interests held by such investor
partner,
-- in which the participants' rights of access to the
records of the roll-up entity would be less than
those provided in the partnership agreement, or
-- in which any of the costs of the transaction would be
borne by a partnership if the proposed roll-up were
not approved by the general and limited partners.
o Any roll-up transaction involving a partnership requires the
approval of a at least 66% of the total interests held by the
general and limited partners.
Depending upon the structure of any possible roll-up which may present
itself, it is possible that remaining a limited partner or an general partner in
the related partnership on the same terms and conditions as existed prior to the
roll-up may not be possible. In such a situation, the managing partner would be
required to either not consummate the proposed Roll-Up if any investor partner
votes "no" or offer the general and limited partners the option of receiving
cash in an amount equal to his or her pro-rata share of the appraised value of
the net assets of the partnership.
General and limited partners should understand that the selection of a
cash payment in an amount equal to an their pro-rata share of the appraised
value of the net assets of a partnership may not fully compensate the investor
partner for his investment.
APPLICATION OF PROCEEDS
Interests in each partnership may be sold in an aggregate amount from
$1,000,000 to $10,000,000. There is no deduction from the proceeds realized from
the sale of interests to investors for organization and offering expenses, sales
commissions, and due diligence fees and, therefore, all of such sales proceeds
will be available to each partnership for the partnership's operations. The
managing partner under the terms of each drilling program agreement will pay all
organization and offering expenses, sales commissions, and due diligence fees.
See "Application of Proceeds" and "Participation in Costs and Revenues."
A partnership may receive capital contributions by the investor
partners ranging from a minimum of $1,000,000 to a maximum of $10,000,000.
Regardless of the amount of capital contributions received, each partnership
will have sufficient capital to engage in the proposed activities as set forth
under "Proposed Activities." However, to the extent that a partnership receives
the minimum capital contributions from the investor partners, the ability of
that partnership to participate in a large number of program wells and prospects
will be reduced, and therefore, the partnership may have a concentration of
risk. See "Risk Factors -- Particular Risks Relating to the Interests --
Concentration of Investment Risks." It is not anticipated that the liquidity of
a partnership will depend upon the amount of capital contributions received from
the investor partners, because as set forth below, all of the capital
contributions are to be expended and none of such funds will be retained for
liquidity purposes. A partnership's liquidity is dependent upon the amount of
revenues, if any, which are realized as a result of the partnership activities.
See "Proposed Activities -- Partnership Distributions."
We estimate that of the total contributions made to each partnership's
drilling program approximately 8% to 9% will be expended for organization and
offering expenses, sales commissions and due diligence fees, approximately 15%
to 20% will be made in the form of lease acquisition costs of prospects,
approximately 12% to 16% will be expended for tangible costs, approximately 55%
to 60% will be expended for Intangible Drilling Costs and the remainder will be
expended for other direct costs. The amount of organization and offering
expenses will be approximately 3.5% of the capital contributions initially made
by investor partners to each partnership in exchange for their respective
interests. The amount of sales commissions and due diligence fees will equal 8%
and .5% respectively of the capital contributions initially made by investor
partners to each partnership in exchange for their respective interests. These
percentages are estimates only, and we cannot assure
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that these percentages will be actually realized or that variations in the
percentages will not be significant to a partnership or its drilling program.
We do not anticipate that we will make any capital contributions
directly to a partnership, but rather we will make our capital contributions
directly to the drilling program in which the partnership is a participant. We
will contribute to each drilling program the oil and gas leases upon which the
drilling program will conduct its operations. Our contribution of oil and gas
leases to each drilling program will be credited to the drilling program at the
lease acquisition costs of the oil and gas leases contributed or at fair market
value if the lease acquisition costs is materially more than fair market value.
The aggregate amount of contributions we will make to the related
drilling program as a participant, in respect of organization and offering
expenses, sale commissions, due diligence fees and oil and gas leases, must
equal at least 42% of the capital contributions initially made by investor
partners to the related partnership. In the event that our aggregate
contributions to the related drilling program in respect of organizational and
offering expenses, sale commissions, due diligence fees and oil and gas leases
is less than an amount equal to 42% of the capital contributions initially made
by investor partners to the related partnership, then we shall contribute to the
drilling program such additional funds in respect of tangible costs as may be
necessary to cause our aggregate contributions to the related drilling program
to be not less than 42% of the capital contributions initially made by investor
partners to the related partnership. Any amounts paid by us in respect of
organizational and offering expenses, sales commissions and due diligence fees
in excess of 15% of the capital contributions initially made by the investor
partners to the related partnership will not be considered in determining the
amount of our contribution.
The following table shows the calculation of the maximum and minimum
amounts which will be contributed to each drilling program to be conducted by
each partnership.
MAXIMUM MINIMUM
CAPITAL CAPITAL
----------- -----------
Capital contributions of investor partners ...................... $10,000,000 $ 1,000,000
Managing partner's capital contribution to the partnership ...... 0 0
Initial partnership capital and total partnership funds
available for drilling program operations ....................... 1,000,000 1,000,000
Plus:
Contributions of the managing partner as a participant in
the drilling program ............................................ $ 4,200,00 $ 420,000
TOTAL AMOUNTS TO BE CONTRIBUTED TO
EACH DRILLING PROGRAM ........................................... $14,200,000 $ 1,420,000
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PARTICIPATION IN COSTS AND REVENUES
COSTS AND REVENUES
The combination of the allocation provisions contained in each
partnership agreement and the related drilling program agreement results in
aggregate allocations of revenues and costs, and income and gain relating to
revenues and costs, to the investor partners in a partnership and to the
managing partner on a consolidated basis are, in general, as set forth in the
table below.
Investor Managing
Partners Partner
-------- -------
Participation in Revenues:
Interest earned on capital contributions of investor partners ............. 100% --
Proceeds from disposition of depreciable property and depletable oil
and gas property ........................................................ 60% 40%
Revenues from operations .................................................. 60% 40%
Participation in Costs:
Organization and Offering Expenses, Sales Commissions
and Due Diligence Fees .................................................. 0% 100%
Operating Costs ........................................................... 60% 40%
Administrative Costs ...................................................... 60% 40%
Reporting and Legal Expenses .............................................. 60% 40%
Lease Acquisition Costs ................................................... 0% 100%
Intangible Drilling Costs ................................................. 100% 0%
Tangible Costs ............................................................ 100% 0%
All other Direct Costs .................................................... 60% 40%
All tangible costs shall be allocated entirely to the related
partnership; provided however, that to the extent, if any, that the total
contributions made by us for organization and offering expenses, sales
commissions and due diligence fees and lease acquisition costs are less than an
amount equal to 42% of the aggregate capital contributions initially made by
investor partners to that partnership, then we will be allocated an amount of
tangible costs equal to that deficit amount.
Proceeds from the sale of an oil and gas property, or depreciable
property, to the extent of a drilling program's simulated basis, or adjusted tax
basis, in the property will be allocated in accordance with the manner in which
costs attributable to such property's purchase were allocated up to an amount
equal to the drilling program's simulated basis, or adjusted tax basis, in such
property at the time of sale. Any remaining sale proceeds will be allocated to
the partners in a manner which will cause the total proceeds from such sale and
all prior sales to be allocated, to the extent possible, as if all such proceeds
had been allocated in the percentages indicated.
DISTRIBUTIONS
That portion of a partnership's revenues, if any, which in the sole
judgment of the managing partner are not required to meet the obligations of
that partnership including, but not limited to, the obligations of a partnership
to reimburse the managing partner and its affiliates for administrative costs
will be distributed to the investor partners not less often than quarterly.
Accordingly, there is no assurance that any distributions will be made to the
investor partners. See "Compensation and Reimbursement." Such reimbursements and
payments by a partnership reduce the amounts otherwise available for
distribution to the investor partners and create a risk that an investor
partner's share of the partnership's taxable income may be greater than the
amounts distributed to him. See "Tax Aspects -- Partnership Taxation --General."
Interest earned on aggregate capital contributions of the investor
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partners will be allocated solely to the investor partners and will be
distributed to them periodically at such time or times as the managing partner
shall determine.
CAPITAL ACCOUNTS
A capital account will be maintained by each partnership for each
partner and by each drilling program for each participant therein in the manner
described in "Tax Aspects -- Partnership Taxation -- Allocations."
ALLOCATIONS OF FEDERAL INCOME TAX ITEMS
All recapture of federal income tax deductions and credits resulting
from the sale or other disposition of partnership assets will be allocated among
the investor partners in the same proportions as the deductions or credits
giving rise to such recapture were allocated. Items of income, gain, loss,
deduction and credit are allocated for federal income tax purposes under the
drilling program agreement in accordance with the allocation of costs, revenues,
and expenses described above.
The partnership agreement provides that if during any fiscal year of a
partnership, the allocation of any loss or deduction (net of any income or gain)
to a partner (the "Deficit partner") would cause his capital account balance (as
adjusted in accordance with applicable Treasury Regulations ) to be less than
zero as of the end of such fiscal year (or would increase a deficit balance),
only the amount of such loss or deduction that reduces the balance to zero shall
be allocated to such Deficit partner. The remaining loss or deduction shall be
allocated to the partners having positive capital account balances.
After any such allocation, partnership income or gain that otherwise
would be allocated to the Deficit partner which is in excess of the cash
distributions to the Deficit partner for such fiscal year shall be allocated
instead to the partners having positive capital account balances until the
amount so allocated equals the amount of loss or deduction previously allocated
to the partners having positive capital account balances rather than to the
Deficit partner under this provision.
In addition, if at the end of any fiscal year of a partnership the
capital account balance (as adjusted in accordance with applicable Treasury
Regulations by taking into account distributions and deductions reasonably
expected in subsequent years) of any partner is less than zero (the "Negative
partner"), partnership income or gain otherwise allocable for such fiscal year
to the partners having positive capital account balances shall be allocated to
the Negative partner in an amount necessary to cause such capital account
balance to equal zero.
After any such allocation, the partnership gain resulting from the sale
or other disposition of partnership property that would otherwise be allocated
to the Negative partner for any fiscal year shall be allocated instead to the
partners having positive capital account balances until the amount of such gain
or amount realized so allocated equals the amount of income or gain previously
allocated to such Negative partner. See "Tax Aspects -- Partnership Taxation --
Allocations."
PROPORTIONATE INTERESTS OF PARTNERS
Distributions of cash and allocations of tax items among partners in a
partnership will be made in accordance with the proportion that the sharing
ratio of each partner in the partnership bears to the aggregate sharing ratios
of all partners in the partnership. A partner's sharing ratio is equal to the
amount determined by dividing that partner's capital contribution to a
partnership by the aggregate capital contributions of all partners to that
partnership.
In the event of a transfer or surrender of interests by an investor
partner, items of income, gain, loss, deduction, and credit will be allocated
between the transferring investor partner and the transferee based on the number
of days during the taxable year in which such transfer was made on which each
person owned such interests. For purposes of such allocations and for purposes
of the next following distribution of cash, except for cash attributable to a
sale of a depletable property, transfers of interests will be recognized, in
accordance with the
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partnership agreement, effective as of a date determined by the managing
partner, which is expected to be the first day of the month following the
recordation of the transfer in the books and records of the related partnership.
COMPENSATION AND REIMBURSEMENT
The managing partner and its affiliates will receive benefits, both
directly and indirectly, from its position as managing partner of the
partnerships and Mewbourne Oil Company's position as drilling program manager of
the drilling programs, which benefits may be considered to be compensation to
the managing partner and its affiliates. Such benefits consist of the following:
Form of Compensation/
Reimbursement Amount
------------- ------
Reimbursement - Administrative Costs Indeterminate - reimbursement based upon allocation
made in accordance with generally accepted
accounting principles.
Compensation - operator Compensation initially based upon participation
share of $780 per producing well per month charge
and $7,420 per drilling well per month charge.
Compensation - partnership interest and drilling program participation Indeterminate - based upon difference between the
managing partner's share of drilling program
revenues and the managing partner's share of
drilling program costs.
Compensation - lending of funds to a partnership Indeterminate - compensation based upon the lesser
of lender's incurred interest cost or the rates
chargeable by banks on comparable loans.
Compensation - payment for equipment, supplies and other services Indeterminate - based upon competitive prices.
PARTNERSHIP AND PROGRAM INTEREST
Under the terms of each drilling program agreement, the managing
partner as a participant in the drilling program will be required to make
contributions to the drilling program at a percentage which is lower than the
percentages of revenues to be received by the managing partner. Specifically,
the aggregate amount of contributions to be made by the managing partner to the
drilling program must equal at least 42% of the capital contributions initially
made by investor partners to the related partnership or 29.57% of the aggregate
contributions made by all participants to the drilling program, and all revenues
from drilling program operations, other than from disposition of depletable or
depreciable property, generally shall be allocated 60% to the investor partners
and 40% to the managing partner.
LEASE AND EQUIPMENT PURCHASES FROM MEWBOURNE
The managing partner as a participant under the terms of each drilling
program agreement will contribute to each drilling program the oil and gas
leases upon which the drilling program will conduct its operations. The managing
partner's contribution of oil and gas leases to the drilling program will be
credited to the drilling program at the lease acquisition costs or at fair
market value if the lease acquisition costs is materially more than fair market
value. In addition, a partnership may buy or lease supplies and equipment from
the managing partner or its affiliates for compensation, prices or rentals that
are no less favorable to a partnership than are generally available from
unrelated third parties in the area engaged in the business of selling or
leasing comparable supplies or equipment. See "Proposed Activities
- --Transactions with Affiliates."
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ADMINISTRATIVE COSTS
The managing partner of each partnership, and the drilling program
manager of each related drilling program, will be entitled to reimbursement of
administrative costs and reporting and legal expenses incurred by them in
connection with managing and conducting the affairs relating to a partnership's
interest in the related drilling program or of the partnership, as applicable.
The amount of administrative costs that are reimbursed by a partnership shall be
allocated to the partnership and the related drilling program on a basis
conforming with generally accepted accounting principles and must be supported
in writing as to the application of such costs and as to the amount charged.
Regardless of the actual amount of administrative costs incurred by the managing
partner or drilling program manager in connection with the affairs of a
partnership, during any particular calendar year the total amount of
administrative costs allocable to that partnership shall not exceed the greater
of:
o 3.5% of the partnership's gross revenues from the sale of oil
and natural gas production during such year, calculated
without any deduction for Operating Costs or other costs and
expenses, or
o the sum of $50,000 plus .25% of the capital contributions of
general and limited partners to such partnership.
The above limitation on administrative costs shall not be applicable to
administrative costs otherwise allocable to a partnership which are
extraordinary and non-recurring or to the fixed overhead fee chargeable by an
operator of oil and gas wells including the fixed overhead fee chargeable under
an operating agreement by Mewbourne Oil Company with respect to the oil and gas
wells operated by Mewbourne Oil Company.
Administrative Costs incurred by the managing partner and the drilling
program manager in respectively managing and conducting the business and affairs
of a partnership and the related drilling program will be allocated 60% to the
investor partners and 40% to the managing partner. The managing partner
anticipates that the amount of administrative costs allocated to a partnership
in 1999 will range between $15,000 to $25,000. These expenses are only estimates
and they may vary due to the amount of capital raised, the date a partnership is
funded, the costs actually incurred in the operation of a partnership and the
related drilling program, and inflationary trends. Such amount includes
administrative costs that the managing partner or its affiliates have incurred
or which it is estimated they will incur on behalf of a partnership, including
those relating to a partnership's interest in the related drilling program, in
the calendar year in which investor partners are first admitted to the
partnership, but before investor partners are admitted to the partnership.
Reporting and legal expenses will be allocated 60% to the investor
partners in the partnership and 40% to the managing partner. Reporting and legal
expenses are estimated to be $15,000 for a partnership for the first year
following the year in which investor partners are first admitted to the
partnership.
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ESTIMATED DRILLING PROGRAM EXPENSES
The managing partner estimates that direct costs that are in the nature
of reporting and legal expenses and administrative costs allocable to a
partnership for the first twelve months of operation will be approximately
$66,000. The managing partner estimates that the components of such allocable
amounts will be as follows:
Administrative Costs:
Legal.......................................................................... $ 1,000
Accounting..................................................................... 12,000
Geological..................................................................... 3,000
Secretarial.................................................................... 12,000
Travel......................................................................... 2,000
Office Rent.................................................................... 5,000
Telephone...................................................................... 3,000
Data Processing................................................................ 5,000
Other ......................................................................... 6,000
Other Direct Costs:
External Legal................................................................. $ 5,000
Audit Fees..................................................................... 7,000
Independent Engineering Reports(1)............................................. 5,000
TOTAL..................................................................... $66,000
(1) Depending upon the timing of the funding and operation of a partnership
the engineering costs may not be incurred in the first twelve months.
The expenses shown above are estimates only and may vary due to the amount of
capital raised, the date a partnership is funded, the costs actually incurred in
the operation of that partnership and the related drilling program, and
inflationary trends.
CONTRACTS WITH MEWBOURNE AND ITS AFFILIATES
Neither the managing partner nor its affiliates owns any drilling rigs
or service companies, and except for the providing of gas compressors from an
affiliate of the managing partner, the managing partner currently does not
anticipate that it or its affiliates will enter into contracts with a
partnership for the rendering of services or the sale or lease of supplies and
equipment other than the operating agreement discussed below. Nevertheless, the
managing partner and its affiliates are permitted under the terms of the
partnership agreement to enter into contracts with a partnership for such
purposes and for the lending of money to the partnership under the limitations
established in the partnership agreement. The partnership agreement, however,
provides limitations on the circumstances under which such services may be
rendered and such sales may occur and the prices and rates that can be charged
therefor and for loans of money by the managing partner or its affiliates as
discussed in "Conflicts of Interest -- Contracts with Mewbourne and affiliates."
COMPENSATION AS OPERATOR
Except for limited instances described in the drilling program
agreement, the drilling program manager has agreed to act as operator with
respect to drilling and production operations to be conducted on program wells.
The drilling program manager will be entitled to be reimbursed for such services
in an amount equal to all charges, including overhead charges, which constitute
direct and indirect charges under an operating agreement or other applicable
operating agreement, including, for each program well, an initial fixed rate
overhead charge for each producing well of $780 per month and a fixed rate
overhead charge for each drilling well of $7,420 per month. However, any charges
by the drilling program manager or its affiliates to a partnership under an
operating agreement or other applicable agreement for the use of the drilling
program manager's or the affiliate's personnel,
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properties, and equipment, as well as the pricing of materials purchased by a
partnership from the drilling program manager or the affiliates or by the
drilling program manager or the affiliates from a partnership, will be subject
to limitations imposed in the partnership agreement. "Proposed Activities --
Operations" and "Conflicts of Interest." In no event shall the consideration
received for operator services duplicate any other consideration or
reimbursements received pursuant to the drilling program agreement.
MANAGEMENT
Mewbourne Development Corporation was originally incorporated in 1982
as Caliche Pipeline Company in the state of Texas. The company was formed to
facilitate the gathering, transporting and marketing of natural gas. In 1990,
Caliche Pipeline Company was merged into a newly incorporated Caliche Pipeline
Company, a Delaware corporation. In 1992, Caliche Pipeline Company sold all its
remaining interest in gas gathering and marketing activities to an affiliated
company, and changed its name to Mewbourne Development Corporation. Mewbourne
Development Corporation will serve as the managing partner of each partnership
and in such capacity will have the sole power and authority to act on behalf of
the partnerships with respect to the management, control, and administration of
the properties, business, and affairs of each partnership. The managing partner
was organized for the purpose, among other things, of engaging in any and all
phases of the oil and gas business, including sponsoring and forming limited or
general partnerships for the purpose of acquiring and owning working interests
in oil and gas properties and offering limited or general partner interests
therein to investors.
Mewbourne Oil Company, a Delaware corporation, was incorporated in 1967
and is a wholly owned indirect subsidiary of Mewbourne Holdings, Inc. The
drilling program manager provides management and technical services and serves
as operator for ventures of Mewbourne Holdings, Inc., the managing partner and
Mr. Mewbourne. In this connection, the drilling program manager develops oil and
gas prospects, acquires leasehold interests, and serves as the operator in the
drilling, completion, and production of oil and gas wells. Mewbourne Oil Company
will also conduct the administration of the business, and affairs of each
drilling program. Mewbourne Oil Company maintains offices in Tyler, Perryton,
Midland and Amarillo, Texas; Hobbs, New Mexico; and Oklahoma City and Woodward,
Oklahoma. The general offices are located at 3901 South Broadway, Tyler, Texas
75701. Mewbourne Oil Company employs approximately 97 persons including 15
engineers, 8 geologists, 7 landmen, 8 accountants, and 11 other degreed
administrative professionals.
Mewbourne Holdings, Inc., a Texas corporation, was founded by Mr.
Mewbourne in 1965 and is a privately owned corporation which serves as the
parent company for both the managing partner and the drilling program manager
and their affiliates.
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OWNERSHIP STRUCTURE OF MEWBOURNE COMPANIES
Corporate Structure
---------------------------
| |
| Mewbourne Holdings, Inc.--------------
| | |
--------------------------- |
-------------------------- |
| Mewbourne | |
| Financial | -------------------
| Corporation | | Mewbourne |
-------------------------- | Development |
| | Corporation, |
-------------------------- | Managing General|
| Mewbourne Oil | | partner |
| Company, | -------------------
| | -------------------
| Operator/Program Mgr. | | Mewbourne |-
-------------------------- | Energy |-INVESTORS
| | partners 99-00 |-
| -------------------
- -------------------- | |
| Curtis W. | -------------------------- |
| Mewbourne ------- | |
| or affiliates | | |---------
- -------------------- | Program Wells |
- -------------------- | |
| Mewbourne ------- |
| Operated Joint | --------------------------
| Ventures |
| or partnerships |
- --------------------
Both the managing partner and the drilling program manager are directly
or indirectly wholly owned subsidiaries of Mewbourne Holdings, Inc. The
following table provides information as to the beneficial ownership of Mewbourne
Holdings, Inc., as of December 31, 1998 by each person who, to their knowledge,
beneficially owned 5% or more of their respective outstanding capital stock.
Number and
Class of percent of Percent of
Owner Security Share Voting Rights
----- --------------- -------------- ---------------
Curtis W. Mewbourne Preferred stock 24,000 shares 92%
$.10 par value 100%
Ruth Anne Mewbourne and Julie Mewbourne Common stock 700 shares 2.6666%
Trustees of the Dorothy Elizabeth Mewbourne $.10 par value 33.33%
Trust No. 1
Dorothy Elizabeth Mewbourne and Julie Common stock 700 shares 2.6666%
Mewbourne, Trustees of the Ruth Anne $.10 par value 33.33%
Mewbourne Trust No. 1
Dorothy Elizabeth Mewbourne and Ruth Anne Common Stock 700 shares 2.6666%
Mewbourne, Trustees of the Julie Mewbourne $.10 par value 33.33%
Trust No. 1
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OFFICERS, DIRECTORS AND KEY EMPLOYEES OF THE MANAGING PARTNER AND THE DRILLING
PROGRAM MANAGER
Set forth below are the names, ages and positions of the officers,
directors and key employees of the managing partner and the drilling program
manager. Directors are elected to serve until the next annual meeting of
shareholders or until their successors are elected and qualified, and officers
serve at the discretion of the Board of Directors.
Officers and Directors of the Managing Partner
----------------------------------------------
Name Position
---- --------
Curtis W. Mewbourne.................................................. President and Director
J. Roe Buckley....................................................... Treasurer, Chief Financial Officer and
Secretary
Michael F. Shepard .................................................. Secretary and General Counsel
Dorothy M. Cuenod.................................................... Assistant Secretary and Director
Ruth M. Buckley...................................................... Assistant Secretary and Director
Julie M. Greene...................................................... Assistant Secretary and Director
Officers and Directors of the Drilling Program Manager
------------------------------------------------------
Name Position
---- --------
Curtis W. Mewbourne.................................................. President and Director
Joseph F. Odom....................................................... Vice President of Administration and Personnel
J. Roe Buckley....................................................... Treasurer, Chief Financial Officer and
Secretary
Dorothy M. Cuenod.................................................... Assistant Secretary and Director
Monty L. Whetstone................................................... Vice President-Production
Kenneth S. Waits..................................................... Vice President-Exploration
Ruth M. Buckley...................................................... Assistant Secretary and Director
Julie M. Greene...................................................... Assistant Secretary and Director
Curtis W. Mewbourne, age 63, formed Mewbourne Holdings, Inc. in 1965
and serves as Chairman of the Board and President of Mewbourne Holdings, Inc.,
Mewbourne Oil Company and Mewbourne Development Corporation. He has operated as
an independent oil and gas producer for the past 34 years. Mr. Mewbourne
received a Bachelor of Science Degree in Petroleum Engineering from the
University of Oklahoma in 1957. Mr. Mewbourne is the father of Dorothy M.
Cuenod, Ruth M. Buckley, and Julie M. Greene and the father-in-law of J. Roe
Buckley.
Joseph F. Odom, age 60, joined Mewbourne Oil Company as Manager,
Administration and Personnel of Mewbourne Oil Company in November, 1981, and was
elected Vice President of Administration and Personnel in March, 1993. Prior to
joining Mewbourne Oil Company, Mr. Odom was employed in personnel management
positions with Delta Drilling Company from 1980 to 1981, with Great Lakes
Chemicals from 1978 to 1980 and with Air Products and Chemicals from 1963 to
1978. Mr. Odom received a Bachelor of Science in Management from the University
of West Florida.
J. Roe Buckley, age 37, joined Mewbourne Holdings, Inc. in July, 1990
and serves as Treasurer and Chief Financial Officer of both Mewbourne
Development Corporation and Mewbourne Oil Company. Mr. Buckley was employed by
Mbank Dallas from 1985-1990 where he served as a commercial loan officer. He
received a Bachelor of Arts in Economics from Sewanee in 1984. Mr. Buckley is
the son-in-law of Curtis W. Mewbourne and is married to Ruth M. Buckley. He is
also the brother-in-law of Dorothy M. Cuenod and Julie M. Greene.
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Michael F. Shepard, age 53, joined Mewbourne Oil Company in 1986 and
serves as Secretary and General Counsel of Mewbourne Development Corporation. He
has practiced law exclusively in the oil and gas industry since 1979 and
formerly was counsel with Parker Drilling Company and its Perry Gas subsidiary
for seven years. Mr. Shepard holds the Juris Doctor degree from the University
of Tulsa where he received the National Energy Law and Policy Institute award as
the outstanding graduate in the Energy Law curriculum. He received the B.A.
degree, magna cum laude, from the University of Massachusetts in 1976. Mr.
Shepard is a member of the bar in Texas and Oklahoma.
Dorothy Mewbourne Cuenod, age 39, received a B.A. Degree in Art History
from the University of Texas and a Masters of Business Administration Degree
from Southern Methodist University. Since 1984 she has served as a Director and
Assistant Secretary of both Mewbourne Development Corporation and Mewbourne Oil
Company. Ms. Cuenod is the daughter of Curtis W. Mewbourne and is the sister of
Ruth M. Buckley and Julie M. Greene. She is also the sister-in-law of J. Roe
Buckley.
Ruth Mewbourne Buckley, age 37, received a Bachelor of Science Degrees
in both Engineering and Geology from Vanderbilt University. Since 1987 she has
served as a Director and Assistant Secretary of both Mewbourne Development
Corporation and Mewbourne Oil Company. Ms. Buckley is the daughter of Curtis W.
Mewbourne and is the sister of Dorothy M. Cuenod and Julie M. Greene. She is
also the wife of J. Roe Buckley.
Julie Mewbourne Greene, age 35, received a B.A. in Business
Administration from the University of Oklahoma. Since 1988 she has served as a
Director and Assistant Secretary of both Mewbourne Development Corporation and
Mewbourne Oil Company. Prior to that time she was employed by Rauscher, Pierce,
Refsnes, Inc. Ms. Greene is the daughter of Curtis W. Mewbourne and is the
sister of Dorothy M. Cuenod and Ruth M. Buckley. She is also the sister-in-law
of J. Roe Buckley.
KEY EMPLOYEES
J. Allen Brinson - Mr. Brinson, age 48, Administrative Land Manager and
Assistant Secretary, has been with Mewbourne Oil Company since January, 1979.
Previously, he was employed for two years by Gulf Oil Corporation in its Land
Department. Mr. Brinson received a Bachelor of Business Administration from
Angelo State University in 1973 and a Master of Business Administration from the
University of Texas-Permian Basin in 1977.
B. Alan Clark - Mr. Clark, age 46, Controller and drilling program
Administrator, joined Mewbourne Oil Company May, 1979. Prior to joining
Mewbourne Oil Company, Mr. Clark was employed by Texas Oil and Gas Corporation
as Assistant Supervisor of Joint interest Accounting from 1976 to 1979. Mr.
Clark has served in several accounting/financial positions with Mewbourne Oil
Company prior to his current position. Mr. Clark received a Bachelor of Business
Administration in Accounting from the University of Texas at Arlington.
W. Ronald Howell - Mr. Howell, age 45, District Manager-Woodward,
Oklahoma District, joined Mewbourne Oil Company in July, 1979. Previously, he
was employed by AMOCO Production Company in production assignments. Mr. Howell
received a Bachelor of Science in Engineering from Texas Tech University in
1975.
A. Wayne Jones - Mr. Jones, age 43, Manager-Oil and Gas Marketing,
joined Mewbourne Oil Company in April, 1984. He was previously employed by
Crystal Oil Company as Manager of Natural Gas Sales Administration. Mr. Jones
received a Bachelor of Business Administration in 1978 and a Master of Business
Administration in Marketing in 1980 from Louisiana Tech University.
Bryan M. Montgomery - Mr. Montgomery, age 39, Manager-Economics and
Evaluation, joined Mewbourne Oil Company upon his graduation from the University
of Oklahoma in August, 1984, where he received a Bachelor of Science in
Petroleum Engineering. Mr. Montgomery has previously served in operations and
reservoir engineering positions.
Ralph P. Moore - Mr. Moore, age 48, District Exploration Manager,
joined Mewbourne Oil Company in August, 1993 as a prospect geologist. After
graduating from Stephen F. Austin State University in 1972 with a
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Bachelor of Science in Geology, Mr. Moore served in various positions in the oil
and gas industry. Prior to joining Mewbourne Oil Company, Mr. Moore served as
Regional Exploration Manager for Pacific Enterprises Oil Company.
Roy L. Hunter - Mr. Hunter, age 51, has been with Mewbourne Oil Company
since January 1998 and is District Manager Exploration office-Amarillo, Texas.
He graduated from the University of Texas at Austin with a B.A. in 1972. For the
five years prior to joining MOC, Mr. Hunter was a Division Land Manager with
Maxus Energy Corporation.
Jarold W. Elgin - Mr. Elgin, age 39, District Manager-Hobbs, New
Mexico, joined Mewbourne Oil Company in February, 1998. After graduating from
Mississippi State in 1983 with a Bachelor of Science in Petroleum Engineering,
Mr. Elgin worked as the Operations Manager of the Blackbird Company, a Louisiana
independent oil and gas company, from 1988 to 1998. He joined Mewbourne from the
Blackbird Company.
Tony D. Phillips - Mr. Phillips, age 41, District Exploration Manager
for Oklahoma City, joined Mewbourne Oil Company in August, 1980 upon his
graduation from the University of Oklahoma where he received a Bachelor of
Science in Petroleum Land Management. Previously, Mr. Phillips has served as
Landman and District Landman. Mr. Phillips manages exploration efforts in the
Anadarko Basin in Western Oklahoma.
Brent R. Thurman - Mr. Thurman, age 39, District Manager-Perryton,
Texas District, joined Mewbourne Oil Company in January 1983. Prior to his
present assignment, he served in various supervisory positions in production and
completions at both Hobbs, New Mexico and Perryton, Texas. Mr. Thurman received
a Bachelor of Science in Petroleum Engineering from Texas Tech University in
1982.
Kenneth S. Waits - Mr. Waits, age 38, Vice President of Exploration,
has been with Mewbourne Oil Company since February, 1984. He joined the company
following his graduation from the University of Oklahoma where he received a
Bachelor of Science in Petroleum Engineering in December, 1983. He currently
manages all of Mewbourne Oil Company's exploration efforts. He has also served
as Exploration Manager for Western Oklahoma. Previously, he held positions in
Operations and in Reservoir/Evaluations.
Monty L. Whetstone - Mr. Whetstone, age 37, Vice President of
Production, joined Mewbourne Oil Company in June, 1985 after graduating from
Texas Tech University with a Bachelor of Science in Petroleum Engineering. Mr.
Whetstone served as a District Superintendent - Woodard, Oklahoma, Unit Engineer
and as the Drilling/Production Engineering Supervisor prior to assuming his
present position.
COMPENSATION
None of the officers or directors of the managing partner or the
drilling program manager will receive remuneration directly from the
partnerships or the drilling programs, but will continue to be compensated by
their present employers. Each partnership and each drilling program will
reimburse the managing partner, the drilling program manager, and their
affiliates for costs of overhead falling within the definition of administrative
costs, including without limitation, salaries of the officers and employees of
the managing partner or drilling program manager; provided that no portion of
the salaries of the directors or of the executive officer of the managing
partner or drilling program manager may be reimbursed as administrative costs.
EXECUTIVE OFFICER
Mr. Mewbourne directly controls and directs all key policy decisions of
the management group of the managing partner and the drilling program manager
and is the only executive officer of both the managing partner and the drilling
program manager.
Cash Compensation to Executive Officer. The cash compensation paid by
the managing partner and the drilling program manager for services rendered
during the year ended December 31, 1998 to Mr. Mewbourne was $124,800. As of the
date of this prospectus, members of the respective boards of directors of the
managing partner and the drilling program manager do not receive any special
compensation for serving as director.
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Executive Officer Compensation Pursuant to Plans. Mewbourne Oil Company
maintains the Employees' Pension Plan and Trust as a qualified defined benefits
plan for all full time employees with five years of service. The Employees'
Pension Plan and Trust provides for maximum retirement benefits of 50% of an
employee's average monthly base pay, calculated on the highest five consecutive
years, for persons with 30 or more years of service. Employees with less than 30
years of service will have their retirement benefits proportionally reduced.
The following table sets forth the Employees' Pension Plan and Trust benefits at
various years of service and salary levels.
=================================================================================================
PENSION TABLE
Years of Service (1)
- -------------------------------------------------------------------------------------------------
SALARY 10 15 20 25 30
- -------------------------------------------------------------------------------------------------
120,000 20,000 30,000 40,000 50,000 60,000
- -------------------------------------------------------------------------------------------------
100,000 16,666 25,000 33,333 41,666 50,000
- -------------------------------------------------------------------------------------------------
75,000 12,500 18,750 25,000 31,250 37,500
- -------------------------------------------------------------------------------------------------
50,000 8,333 12,500 16,666 20,833 25,000
=================================================================================================
- -------------
(1) Assumes a Lifetime Only Benefit (benefits cease upon employees death).
Under the Employees' Pension Plan and Trust, Mr. Mewbourne would have a lifetime
benefit of $5,200 per month based on his current base salary of $124,800 and
assuming he works until age 65 at which time he would have 36 years of
employment.
Mewbourne Holdings, Inc. maintains an incentive compensation plan for
key personnel, which is funded by overriding royalty interests burdening
prospects developed by the drilling program manager. Payments to employees are
discretionary and are made net of expenses. Gross payments from the plan to
employees were approximately $544,600 for the fiscal year ended June 30, 1998.
The interests in the oil and gas leases to be acquired by the drilling program
will not be burdened by plan royalties and the partnerships will not bear any
costs or expenses attributable to the plan.
Non-Cash Compensation of Executive Officer. Mr. Mewbourne, as the sole
executive officer of the managing partner and the drilling program manager, was
provided club memberships for use in performing his assigned duties and from
time to time used such memberships for personal purposes. To the extent any club
membership was used for non-reimbursed, non-job related purposes, a
proportionate part of the cost of providing such use would have constituted
remuneration to the user. The managing partner and the drilling program manager
are unable without unreasonable effort to determine the extent of such
non-reimbursed, non-job related use, but believes that during the year ended
December 31, 1998 the amounts of such benefits received by such officer did not
exceed 10% of such officer's cash compensation for the year.
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CERTAIN TRANSACTIONS
Participation in Drilling Program Activities. Mr. Mewbourne and/or his
affiliates, other than affiliated programs, have historically invested directly
in the exploration and development activities of Mewbourne Oil Company during
the past 34 years. In addition, he and/or his affiliates, other than affiliated
programs, have been an investor in the joint ventures and drilling agreements
through which, other investors participated in various Mewbourne Oil Company
managed programs. Mr. Mewbourne's and his affiliates, other than affiliated
programs, annual participation varied considerably both in level of investment
and form, but in general approximated 25% to 50% of the annual expenditures.
Mr. Mewbourne intends to invest directly and/or indirectly alongside
each partnership in the activities of each drilling program, however, we cannot
assure that the amount of Mr. Mewbourne's participation will be in accordance
with his historical custom. The amount of such investment will be subject to
many variables, including the availability of working interests in the oil and
gas leases, the amount of capital available to each partnership from
subscriptions, the timing of the drilling activities, and other such matters.
CONFLICTS OF INTEREST
o The managing partner currently manages and in the future will sponsor
and manage other partnerships similar to the partnerships in which
interests are being offered.
o The managing partner will decide which prospects each partnership will
acquire.
o The drilling program manager will act as the operator for program
wells, pursuant to the operating agreement, the terms of which have not
been negotiated by non-affiliated persons.
o The managing partner and its affiliates will contribute oil and gas
leases and sell other property to the drilling program and related
partnerships.
o The managing partner is a general partner of numerous other
partnerships and owes duties of good faith and fair dealing to such
other partnerships.
o The managing partner and its affiliates engage in significant drilling,
operating, and producing activities for other partnerships.
o Affiliates of the managing partner are eligible to purchase interests,
and subject to limitations, interests purchased by an affiliate will
have voting rights under the partnership agreement.
FIDUCIARY RESPONSIBILITY OF THE MANAGING PARTNER
The contemplated activities of each partnership will involve decisions
by the managing partner, on behalf of each partnership, and the drilling program
manager, on behalf of the related drilling program, and transactions between the
partnership, the related drilling program, the managing partner, or affiliates
thereof. Because of the common control of each partnership, each drilling
program, the managing partner, the drilling program manager, and other
affiliates thereof, any such decisions or transactions will lack the benefits of
arm's-length bargaining and will necessarily involve conflicts of interest. The
managing partner is accountable to each partnership as a fiduciary and is
required to act in good faith in the best interests of each partnership at all
times. The managing partner will attempt, in good faith, to resolve all
conflicts of interest in a fair and equitable manner with respect to all persons
affected by those conflicts of interest. Nevertheless, the actions of the
managing partner may not be the most advantageous to a partnership and could
fall short of the full exercise of such fiduciary duty. No provision has been
made for an independent review of conflicts of interest.
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The partnerships are organized under Delaware law, and under Delaware
law the general partner of a partnership owes a fiduciary duty to the
partnership and to its partners. Under Delaware law, the managing partner will
owe the general and limited partners a duty of good faith, fairness, and
loyalty. In this regard, the managing partner is required to supervise and
direct the activities of each partnership prudently and with that degree of
care, including acting on an informed basis, which an ordinarily prudent person
in a like position would use under similar circumstances. Moreover, the managing
partner must act at all times in the best interests of each partnership and the
general and limited partners. Since the law in this area is rapidly developing
and changing, investors who have questions concerning the responsibilities of
the managing partner should consult their own counsel.
Limitations on the Fiduciary Obligations of the Managing Partner and
the Managing Partner's Responsibility to Determine the Application of the
Limitations. The partnership agreement contains provisions which modify what
would otherwise be the applicable Delaware law relating to the fiduciary
standards of the managing partner to the general and limited partners. The
fiduciary standards in the partnership agreement could be less advantageous to
the general and limited partners and more advantageous to the managing partner
than the corresponding fiduciary standards otherwise applicable under Delaware
law, specifically:
o a partnership may indemnify and hold harmless the managing
partner and its affiliates,
o the managing partner is required to devote only so much of its
time as is necessary to manage the affairs of the partnership,
o the managing partner and its affiliates may conduct business
with a partnership in a capacity other than as a sponsor,
o the managing partner and any of its affiliates may pursue
business opportunities that are consistent with a
partnership's investment objectives for their own account, and
o the managing partner may manage multiple programs
simultaneously.
As summarized above the partnership agreement contains provisions which
are intended to limit the liability of the managing partner or any affiliate of
the managing partner for any act or omission within the scope of authority
conferred upon them under the partnership agreement or drilling program
agreement if the managing partner has determined in good faith, as of the time
of the conduct or omission, that such conduct or omission was in the best
interest of a partnership and that it did not constitute negligence or
misconduct. The managing partner would be subject to a conflict of interest in
making any such determination. The limitation upon the fiduciary standards in
the partnership agreement could be less advantageous to the general and limited
partners and more advantageous to the managing partner than the corresponding
fiduciary standards otherwise applicable under Delaware law. The purchase of
interests may be deemed as consent to the fiduciary standards set forth in the
partnership agreement. As a result of these provisions in the partnership
agreement, the general and limited partners may find it more difficult to hold
the managing partner responsible for acting in the best interests of a
partnership and its general and limited partners than if the fiduciary standards
of the otherwise applicable Delaware law governed the situation.
The partnership agreement and drilling program agreement provide for
indemnification of the managing partner, the drilling program manager and
affiliates of the drilling program manager and their respective officers and
directors against claims arising from conduct or omission on behalf of a
partnership or a drilling program. Such indemnification will be available if the
managing partner determines in good faith, as of the time of the conduct or
omission, that the conduct or omission was in the best interest of the related
partnership and that it did not constitute negligence or misconduct. The
managing partner would be subject to a conflict of interest in making any such
determination as to whether the managing partner or its affiliates should be
indemnified, and the general and limited partners must rely upon the integrity
of the managing partner in making such determination.
Where the question has arisen, courts have held that an investor
partner may institute a legal action called a class action on behalf of himself
and all other similarly situated investor partners to recover damages for a
breach by a general partner of his fiduciary duty. An investor partner may also
institute a legal action called a derivative suit on behalf of the partnership
to recover damages from third parties. In addition, investor partners may have
the right, subject to procedural and jurisdictional requirements, to bring
partnership class actions in federal courts to enforce their rights under the
federal securities laws. Further, investor partners who have suffered losses in
connection with the purchase or sale of their interests in a partnership may be
able to recover such losses from a general partner where the losses result from
a violation by the general partner of the antifraud provisions of the
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federal securities laws. The burden of proving such a breach, and all or a
portion of the expense of such lawsuit, would have to be borne by the investor
partner bringing such action. In the event of a lawsuit for a breach of its
fiduciary duty to a partnership and/or the general and limited partners, the
managing partner, depending upon the particular circumstances involved, might be
able to avail itself under Delaware law of various defenses to the lawsuit.
In the performance of its duties as operator under an operating
agreement, the program manager is required to act in accordance with a prudent
operator standard. In general, under the prudent operator standard, a person is
required to act in the same manner as an ordinary prudent operator would act
under the same or similar circumstances. The prudent operator standard is
significantly less restrictive than the fiduciary duty imposed upon the managing
partner. Conduct under the prudent operator standard may not necessarily be the
most advantageous to a partnership and under such standard it would be more
difficult to hold the program manager responsible for acts or omissions in its
capacity as operator than if the fiduciary duty standard were otherwise
applicable.
FARMOUTS
Any farmout or similar agreement pertaining to a partnership's oil and
gas leases must comply with the rules, restrictions, and guidelines described in
this prospectus and the limitations set forth in the partnership agreement, and
will be subject to the following conditions:
o the managing partner must determine that the farmout or
similar agreement is in the best interests of the partnership,
o the terms of the farmout or similar agreement must be
consistent with, and in any case no less favorable to the
partnership than, those utilized in the same geographic area
for similar arrangements, and
o if the assignee under the farmout is the managing partner or
its affiliate then, the farmout is subject to the same
restrictions as applicable to a purchase of undeveloped
property from the partnership. See "Proposed Activities --
Transactions with Affiliates -- Purchase of Leases from the
Partnership."
The decision of the managing partner with respect to making a farmout
and the terms of a farmout to an affiliate may involve conflicts of interest, as
the managing partner or the affiliate may benefit from cost savings and
reduction of risk, and in the event of a farmout to an affiliate, the managing
partner will represent both the partnership and the affiliate.
None of a partnership's oil and gas leases will be farmed out unless
the managing partner, determines that:
o the partnership lacks sufficient funds to drill on the oil and
gas lease and cannot obtain suitable alternative financing for
such drilling,
o the value of the oil and gas lease has been reduced by events
occurring or information disclosed to such managing partner
after assignment of the oil and gas lease to the partnership
so that drilling would no longer be desirable for the
partnership,
o drilling on the oil and gas lease would result in an excessive
concentration of the partnership's funds creating, in the
managing partner's opinion, undue risk to the partnership, or
o the best interests of the partnership would be served by the
farmout.
A partnership will acquire only those oil and gas leases that are
reasonably required for the stated purpose of the partnership, and no oil and
gas leases will be acquired for the purpose of subsequent sale or farmout,
unless the acquisition of the oil and gas leases by that partnership is made
after a well has been drilled to a depth sufficient to
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indicate that the acquisition is believed to be in the best interest of the
partnership. The managing partner is not permitted to farmout a property for the
primary purpose of avoiding payment of the costs relating to drilling on the
property that would otherwise be allocable to the managing partner. See
"Proposed Activities -- Farmouts," and "Conflicts of Interest -- Sale of Leases
to a Partnership" and "Purchase of Leases from a Partnership."
PURCHASE OF LEASES FROM A PARTNERSHIP
Neither the managing partner nor its affiliate, including an affiliated
program, may purchase or acquire any oil and gas lease from a partnership,
directly or indirectly, except pursuant to transactions that are fair and
reasonable to the partnership and then subject to the following conditions:
o a sale, transfer or conveyance, including a farmout, of an oil
and gas lease not having any proved developed reserves
attributable to it from a partnership to the managing partner,
or its affiliate, other than an affiliated program, must be
made at the higher of the lease acquisition costs or fair
market value,
o a sale, transfer or conveyance of an oil and gas lease (having
proved developed reserves attributable to it from the
partnership to the managing partner or its affiliate, other
than an affiliated program in which the interest of the
managing partner or its affiliate is substantially similar to
or less than its interest in the partnership, is not permitted
except in connection with the liquidation of the partnership
and then only at fair market value,
o except in connection with farmouts or joint ventures made in
compliance with the partnership agreement. which is summarized
in the final paragraph of the subsection entitled "Sale of
Lease to the partnership" below, a transfer of an undeveloped
oil and gas lease from the partnership to an affiliated
program must be made at fair market value if the oil and gas
lease has been held for more than two years; otherwise, if the
managing partner deems it to be in the best interest of the
partnership, the transfer may be made at the lease acquisition
costs, and
o except in connection with farmouts made in compliance with the
restrictions described in the partnership agreement, a
transfer of any oil and gas lease from the partnership to an
affiliated program, whose investment obligation is to directly
acquire, hold, operate and/or dispose of producing oil and gas
properties, must be made at fair market value if the oil and
gas lease has been held for more than six months or there have
been significant expenditures made in connection with the oil
and gas lease; otherwise, if the managing partner deems it to
be in the best interest of the partnership, the transfer may
be made at the lease acquisition costs as adjusted for
intervening operations.
A determination of fair market value must be supported by an appraisal from an
independent expert. Such opinion and any associated supporting information must
be maintained in a drilling program's records for at least six years.
SALE OF LEASES TO A PARTNERSHIP
The managing partner has discretion in selecting the oil and gas leases
to be contributed to a partnership by the managing partner and the location and
type of operations that a partnership will conduct on the contributed oil and
gas leases. A portion of such oil and gas leases may be part of the managing
partner's existing inventory. In determining which oil and gas leases should be
contributed to a partnership, if the managing partner or its affiliates has oil
and gas leases in its own inventory at the time, the managing partner would be
subject to a conflict of interest in selecting properties for the partnership
out of its or an affiliate's inventory or from third party sellers.
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ADJACENT ACREAGE
A drilling program may not drill any well for the purpose of proving or
disproving the existence of oil or gas on any adjacent acreage held by the
managing partner or an affiliate of the managing partner. Nevertheless, such
drilling activities may incidentally develop information valuable to the
managing partner or affiliates of the managing partner in evaluating their
nearby acreage at no cost to them. Mewbourne Oil Company or its affiliates also
may retain an ownership interest in an oil and gas lease contributed by the
managing partner to a drilling program and the use of drilling program funds to
drill a well on such oil and gas lease will reduce the cost and risk to the
managing partner or its affiliates of drilling on such oil and gas lease.
Accordingly, a conflict of interest will exist between the interest of the
partnership and the interest of the managing partner in selecting the location
and type of operations which the related drilling program will conduct on
drilling program leases where the managing partner or affiliates of the managing
partner own oil and gas leases in the vicinity of the drilling program leases or
retain an ownership interest in the drilling program leases. In addition, the
liability of the managing partner and its affiliates to the partnerships is
limited as set forth under "-- Fiduciary Responsibility of the Managing Partner"
and such limitations significantly increase the potential conflicts that may
arise with regard to the acquisition and operation of adjacent acreage.
OTHER ACTIVITIES
As summarized in "Risk Factors -- Particular Risks Relating to the
Interests -- Limitations on the Fiduciary Obligations of the Managing Partner
and the Managing Partner's Responsibility to Determine the Application of the
Limitations," the partnership agreement modifies the fiduciary duties owed by
the managing partner or its affiliates to a partnership and the general and
limited partners by specifically modifying the duties otherwise owed under
Delaware law. The partnership agreement specifically permits the managing
partner and its affiliates to engage in and possess interests in other business
ventures of any and every type and description, independently or with others,
including without limitation the acquisition, ownership, exploration,
development, operation, and management of oil and gas properties for themselves
and other persons, and the organization and management of other partnerships and
joint ventures similar to the partnerships; provided, however, except as
otherwise set forth in the partnership agreement and as described in "Proposed
Activities -- Transactions with Affiliates," the managing partner and its
affiliates may pursue business opportunities that are consistent with the
partnerships' investment objectives for their own account only after they have
determined that such opportunity either cannot be pursued by a partnership
because of insufficient funds or because it is not appropriate for a partnership
under the existing circumstances. The managing partner and its affiliates
currently act as the managing general partner of several other oil and gas
drilling partnerships. See "Prior Activities." The business of these
partnerships may be considered competitive with the business of the partnerships
in areas such as markets for production, use of equipment, and access to the
time and financial resources of management, as well as in other areas. In
addition, the managing partner or its affiliates may sponsor additional drilling
partnerships and other oil and gas partnerships in the future. Therefore, the
managing partner will be acting on behalf of each partnership as managing
partner, on behalf of existing partnerships, and on behalf of other partnerships
and joint ventures which the managing partner or its affiliates may sponsor in
the future. As a result of these activities of the managing partner and its
affiliates, circumstances may arise where the interest of the managing partner
or of its affiliates in such independent ventures will conflict with those of
the general and limited partners with respect to the acquisition of prospects,
the utilization of available drilling services and similar matters. A conflict
of interest may arise, for example, when a partnership, the managing partner and
other prior or future oil and gas partnerships in which the managing partner or
its affiliate has an interest will have an opportunity to acquire the same oil
and gas leases. In these situations, it may be expedient for the managing
partner to favor one partnership or venture over another. It is possible that
the managing partner or its affiliates will be in the process of acquiring oil
and gas leases for inclusion in other drilling partnerships at the same time
that they are acquiring oil and gas leases for inclusion in a drilling program.
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CONTRACTS WITH MEWBOURNE AND AFFILIATES
The managing partner and its affiliates do not own any drilling rigs or
service companies, and except for the providing of gas compressors from an
affiliate of the managing partner and for the operating agreement, the managing
partner currently does not anticipate that it will enter into contracts and
agreements with either partnership for the rendering of services or the sale and
lease of supplies and equipment. However, the partnership agreement specifically
permits a partnership and the managing partner to enter into agreements for such
purposes and for the lending of money to a partnership. Neither the managing
partner nor any affiliate of the managing partner will enter into any agreement
with a partnership to provide services, supplies and equipment unless:
(a) the managing partner or such affiliate is engaged
independently of the partnership as an ordinary and ongoing
business in the business of rendering such services or selling
or leasing such equipment and supplies to a substantial extent
to other persons in the oil and gas industry in addition to
partnerships or drilling programs in which the managing
partner or such affiliate has an interest,
(b) the compensation, price, or rental is competitive, determined
as of the time that the contract is entered into, with the
compensation, price, or rental of other persons in the area
engaged in the business of rendering comparable services or
selling or leasing comparable equipment and supplies which
could reasonably be made available to the partnership, and
(c) if the managing partner or such affiliate is not engaged in a
business within the meaning of clause (a) above, then such
compensation, price, or rental is the lesser of the cost of
such services, equipment, or supplies to the managing partner
or such affiliate or the competitive rate which could be
obtained in the area. Any loan of money to a partnership by
the managing partner or its affiliate may not bear interest in
excess of the lesser of the rate the managing partner or such
affiliate is required to pay on similar borrowings or the
highest lawful rate, or in any event at a rate in excess of
the amount which would be charged to the partnership by
independent third parties for the same purpose. See
"Additional Financing."
All contracts between a partnership and the managing partner or its
affiliate may be terminated upon the vote or written consent of more than 50% of
the interest of the general and limited partners without penalty on 60 days'
advance written notice. Notwithstanding any provision to the contrary, the
managing partner and its affiliates may not profit by drilling in contravention
of their fiduciary obligations to the general and limited partners. In addition,
no rebates may be received by the managing partner or any affiliate nor may the
managing partner or any affiliate participate in any reciprocal business
arrangements.
MEWBOURNE OIL COMPANY AS OPERATOR
Under the terms of each drilling program agreement, the drilling
program manager has agreed to serve as operator of program wells. Each drilling
program agreement specifically provides that any operating agreement pertaining
to the drilling program manager's acting as an operator of program wells will be
subject to the limitations set forth in the related partnership agreement with
respect to contracts for the rendering of services and the sale and lease of
supplies and equipment, which limitations are described in the preceding
paragraph. In the event that non-affiliated parties do not participate, or have
a small interest, in a drilling program's prospects there will be no independent
oversight with respect to the competitiveness of the operating agreements
entered into with the drilling program manager. See "Proposed Activities --
Operations" and "Compensation and Reimbursement -- Compensation as Operator."
OWNERSHIP OF INTERESTS BY THE MANAGING PARTNER OR ANY AFFILIATES
The managing partner and its affiliates are eligible to subscribe for
interests, provided that any interests so purchased must be purchased for
investment purposes only and not for the purpose of resale or any further public
distribution. It is the managing partner's current intention that the managing
partner and/or an affiliate of the managing partner will subscribe for such
number of interests as may be necessary for each partnership in which
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interests are being offered to receive the minimum subscription amount of 1,000
interests ($1,000,000). The number of interests in a partnership that may be
purchased by the managing partner and/or its affiliates is not subject to any
specific maximum limitations but instead depends upon the number of
subscriptions for interests received and accepted from non-affiliates. However,
although there are no limitations upon the number of interests that may be
purchased by an affiliate, the managing partner does not intend to purchase any
interests in a partnership if the partnership has already received the minimum
subscription amount and the managing partner does not intend to purchase any
more interests in a partnership than necessary to ensure that such partnership
receives the minimum subscription amount. Any interests purchased by the
managing partner or its affiliates will have voting rights under the partnership
agreement, provided that during the time period that Mewbourne Development
Corporation or its affiliate is serving as the managing partner of a partnership
any interests owned by the managing partner or its affiliates which in the
aggregate represent more than 20% of the total interests held by investor
general and limited partners in that partnership shall not have any voting
rights under the partnership agreement and shall not be counted for voting
purposes. In addition, during the time period that Mewbourne Development
Corporation or its affiliate is serving as the managing partner of a
partnership, none of the interests owned by the managing partner or its
affiliates shall be counted for voting purposes or for purposes of determining a
quorum or have any voting rights under the partnership agreement concerning the
removal of the managing partner or any transaction between that partnership and
the managing partner or its affiliates. Notwithstanding the voting limitation
imposed upon interests owned by the managing partner or its affiliates, to the
extent that interests in a partnership are acquired by the managing partner or
its affiliates, such ownership interests has the effect of diluting the voting
power of the other general and limited partners in that partnership. The
exercise of the voting rights of any interests owned by the managing partner or
its affiliates could give rise to a conflict of interest between the managing
partner and the investor general and limited partners.
PRIOR ACTIVITIES
PRIOR PARTNERSHIPS
The managing partner has historically originated and managed drilling
and development activities through which a limited number of qualified
participants, including other oil and gas companies, acquired individual working
interests in leases by means of joint ventures and drilling agreements. The
structure of such transactions, including the manner in which costs and revenues
are shared varied considerably and in each case are substantially different from
those of an investor partner investing in a partnership.
During the period 1977-1980, affiliates of the general partner
sponsored a series of five private limited partnerships. The general partner has
also sponsored ten public partnerships, Mewbourne Development Partners 93-A,
L.P., Mewbourne Development Partners 93-B, L.P., Mewbourne Development Partners
94-A, L.P., Mewbourne Development Partners 94-B, L.P., Mewbourne Development
partners 94-C, L.P., Mewbourne Energy Partners 95-A, L.P., Mewbourne Energy
Partners 95-B, L.P., Mewbourne Energy Partners 96-A, L.P., Mewbourne Energy
Partners 97-A, L.P., and Mewbourne Energy Partners 98-A, L.P. and two private
partnerships, Mewbourne Development Partners 1992 GP and Mewbourne Energy
Partners 1994 Private L.P. Except for the above described partnerships, neither
the general partner nor any of its affiliates have sponsored any private or
public partnerships within the past ten years. The financial disclosure provided
below is presented on a tax basis of accounting.
For purposes of making an investment decision, the structure and
activities of the five private limited partnerships sponsored during the years
1977 through 1980 are not comparable to the partnerships. In particular, the
five private limited partnerships were structured to include one or more of the
following attributes:
o additional assessments were required from the investors as
contrasted to the current offering which does not allow for
any additional assessments,
o significant indebtedness was incurred as contrasted to the
current offering which contemplates only limited borrowings
and in limited circumstances,
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66
o excess income was reinvested in additional drilling activities
as contrasted to the proposed offering which does not
contemplate significant reinvestment of excess income,
o activities were engaged in that are not comparable to the
activities proposed to be engaged in by the current offering,
including drilling Exploratory Wells, as contrasted to the
current offering which contemplates the drilling of primarily
Development Wells, and/or
o the sharing of partnership's revenues and costs between the
managing partner and the investors was made in a significantly
different method as contrasted to the current offering.
Due to these significant differences, the disclosure regarding the prior
activities of the five private limited partnerships may not be relevant to a
prospective subscriber making an investment decision with respect to a
partnership and are not indicative of the results that may be achieved by either
partnership.
The following table is to indicate The total amount of administrative
costs incurred, as of December 31, 1998, by partnerships sponsored by the
managing partner or its affiliates, and the percentage of subscriptions raised
in each partnership as compared to other costs incurred by each partnership.
Other Costs(1) Administrative Costs
--------------------------- ------------------------------
Percentage of Percentage of
Partnership(3) Amount Subscriptions Amount Subscriptions
-------------- ----------- ------------- ------------ --------------
Mewbourne Oil, Ltd. 1977 (4) ....................... $ 3,386,123 100.75% $ 783,973 23.33%
Mewbourne Oil, Ltd. 1978 ........................... 12,178,316 275.15% 2,394,312 54.10%
Mewbourne Oil, Ltd. 1978B (5)....................... 7,901,956 196.02% 1,322,538 32.81%
Mewbourne Oil, Ltd. 1979 (4)........................ 7,005,778 162.89% 1,267,283 29.46%
Mewbourne Oil, Ltd. 1980 (4)........................ 2,783,153 135.73% 398,584 19.44%
Mewbourne Development Partners 92 GP................ 1,169,060 99.87% 38,747 3.31%
Mewbourne Development Partners 93-A LP.............. 1,335,276 95.73% 32,409 2.32%
Mewbourne Development Partners 93-B LP.............. 1,323,201 100.93% 38,290 2.92%
Mewbourne Development Partners 94-A LP.............. 1,227,804 101.89% 36,061 2.99%
Mewbourne Development Partners 94-B LP.............. 1,087,194 106.60% 44,514 4.37%
Mewbourne Development Partners 94-C LP.............. 1,091,590 105.01% 44,816 4.31%
Mewbourne Energy Partners 1994 Private LP........... 1,548,693 104.30% 991 .07%
Mewbourne Energy Partners 95-A, L.P................. 1,650,964 100.95% 77,210 4.72%
Mewbourne Energy Partners 95-B, L.P................. 2,032,593 100.06% 23,605 1.16%
Mewbourne Energy Partners 96-A, L.P................. 3,929,041 100.46% 63,601 1.63%
Mewbourne Energy Partners 97-A, L.P................. 3,486,035 109.88% 44,747 1.41%
Mewbourne Energy Partners 98-A, L.P................. 1,470,889 39.38% 33 0.0%(2)
- ------------------
(1) Includes lease acquisition costs, and all direct costs.
(2) Represents less than .01%.
(3) Unless otherwise noted, all partnerships are currently operating.
(4) This partnership was terminated November 30, 1994.
(5) This partnership was terminated September 1, 1996.
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67
PAST COMPENSATION
In connection with a series of five private limited partnerships
sponsored by an affiliate of the managing partner during 1977-1980 and two
private limited partnerships and a series of ten public limited partnerships
sponsored by the managing partner since December 1992, such partnerships have
made the following payments to the managing partner and its affiliates.
PAYMENTS MADE TO THE MANAGING PARTNER AND AFFILIATES
DECEMBER 31, 1998
Nonrecurring
Management
and Administrative
Organization Lease Operating Cost
Partnership Fee Acquisition (1) Equipment Fees Reimbursement
----------- ---------- --------------- ---------- ---------- --------------
Mewbourne Oil, Ltd. 1977(2) ........................... $ 35,000 $ 300,689 $ 795,925 $1,226,840 $ 753,129
Mewbourne Oil, Ltd. 1978A(4) .......................... 54,450 639,122 2,239,443 4,102,725 1,970,798
Mewbourne Oil, Ltd. 1978B(3) .......................... 47,216 332,025 1,584,709 2,608,629 1,250,786
Mewbourne Oil, Ltd. 1979(2) ........................... 52,230 490,024 1,357,496 2,169,170 1,194,485
Mewbourne Oil, Ltd. 1980(2) ........................... 26,628 301,720 472,053 307,664 491,564
Mewbourne Development Partners 92 GP(4) ............... 63,162 266,980 205,381 147,631 38,747
Mewbourne Development Partners 93-A, L.P.(4) ......... 61,568 107,881 285,182 341,615 32,409
Mewbourne Development Partners 93-B, L.P.(4) ......... 57,870 170,310 264,104 278,174 38,290
Mewbourne Development Partners 94-A, L.P.(4) .......... 53,193 226,381 211,057 159,388 36,061
Mewbourne Development Partners 94-B, L.P.(4) .......... 44,996 86,100 210,163 167,138 44,514
Mewbourne Development Partners 94-C, L.P.(4) .......... 45,887 95,606 207,516 164,653 44,816
Mewbourne Energy Partners 1994 Private L.P.(4) ........ 0 224,920 187,265 144,036 991
Mewbourne Energy Partners 95-A, L.P.(4) ............... 73,943 315,281 289,184 223,335 77,210
Mewbourne Energy Partners 95-B, L.P.(4) ............... 19,909 518,013 220,969 146,285 23,605
Mewbourne Energy Partners 96-A, L.P.(4) ............... 122,692 936,817 721,183 252,491 63,601
Mewbourne Energy Partners 97-A, L.P. (4) .............. 65,309 743,466 603,811 21,328 44,747
Mewbourne Energy Partners 98-A, L.P.(4) ............... 36,610 321,353 123,469 17,132 33
- ----------------
(1) Interests in oil and gas properties were acquired at cost from
Mewbourne Oil Company.
(2) This partnership was terminated on November 30, 1994.
(3) This partnership was terminated on September 1, 1996.
(4) This partnership is currently operating.
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68
The following table is presented to indicate certain sale distribution
characteristics concerning partnerships sponsored by the managing partner or its
affiliates.
PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
EXPERIENCE IN RAISING FUNDS
Date of First Contributions
Revenue Number of From
Partnership Funding Date Distribution Units Sold Price Per Unit Investors(4)
----------- ----------- ------------- --------- ---------- ----------
Mewbourne Oil, Ltd. 1977(1)........................ 8/25/77 6/27/78(2)(3) 193.0 $10,000 $2,891,000
Mewbourne Oil, Ltd. 1978A(8)....................... 5/4/78 2/24/84(2)(3) 288.0 10,000 3,456,000
Mewbourne Oil, Ltd. 1978B (7)...................... 12/6/78 12/31/80(2)(3) 286.5 10,000 3,581,250
Mewbourne Oil, Ltd. 1979(1)........................ 7/10/79 12/8/80(2)(3) 312.5 10,000 3,906,250
Mewbourne Oil, Ltd. 1980(5)(1)..................... 5/22/80 --(2)(3) 147.0 10,000 1,837,500
Mewbourne Development Partners 92 GP(8)............ 12/31/92 5/18/93(3) 116.0 10,000 1,160,000
Mewbourne Development Partners 93-A, L.P.(8)....... 10/11/93 2/21/94 1,382 1,000(6) 1,382,000
Mewbourne Development Partners 93-B, L.P.(8)....... 12/31/93 4/25/94 1,299 1,000(6) 1,299,000
Mewbourne Development Partners 94-A, L.P.(8)....... 6/30/94 10/24/94 1,194 1,000(6) 1,194,000
Mewbourne Development Partners 94-B, L.P.(8)....... 11/4/94 3/21/95 1,100 1,000(6) 1,010,000
Mewbourne Development Partners 94-C, L.P.(8)....... 12/30/94 4/28/95 1,030 1,000(6) 1,030,000
Mewbourne Energy Partners 1994 Private L.P.(8)..... 12/30/94 4/28/95 73.5 20,000 1,470,000
Mewbourne Energy Partners 95-A, L.P.(8)............ 10/11/95 2/19/96 1,619 1,000(6) 1,619,000
Mewbourne Energy Partners 95-B, L.P.(8)............ 12/29/95 5/20/96 2,011 1,000(6) 2,011,000
Mewbourne Energy Partners 96-A, L.P.(8)............ 11/7/96 3/20/97 3,872 1,000(6) 3,872,000
Mewbourne Energy Partners 97-A, L.P.(8)............ 11/9/97 11/20/98 3,141 1,000(6) 3,141,000
Mewbourne Energy Partners 98-A, L.P.(8)............ 11/20/98 N/A 3,698 1,000(6) 3,698,000
(1) This partnership was terminated on November 30, 1994.
(2) Cash Distributions reflect the policy to retain initial revenues to
reinvest in additional wells. Retention of revenues delayed the
commencement of distributions to the participants.
(3) The 1977 partnership retained $553,549 of distributable operating cash
flow to reinvest in additional drilling. The 1978A, 1978B, 1979 and
1980 partnerships retained $1,836,329, $3,580,177, $2,326,134 and
$223,343 of distributable operating cash flow to reinvest in additional
drilling, respectively, and $5,391,821, $30,072, $125,133 and $732,939
of distributable operating cash flow was used to repay borrowings of
the partnership, respectively. The 92 GP, 93-A, 93-B, 94-A, 94-B, 94-C
and MEP 94-Private partnerships retained $64,165, $24,614, $76,838,
$82,864, $124,975, $111,208, $25,852, respectively of distributable
operating cash flow to complete drilling operations.
(4) Includes initial subscriptions plus additional assessments, if any,
under the provisions of each offering. Also includes contributions by
the managing partner and its affiliates in each of public programs
previously sponsored by the managing partner. Such contributions were
in the amounts of $480,000, $400,000, $366,000, $437,500 and $660,000
in each of Mewbourne Development partners 93-A, L.P., Mewbourne
Development partners 93-B, L.P., Mewbourne Development partners 94-A,
L.P., Mewbourne Development partners 94-B, L.P., Mewbourne Development
partners 94-C, L.P., respectively.
(5) The activities of this partnership consisted solely of exploratory
drilling.
(6) Each partnership required a minimum investment of five units or $5,000.
(7) This partnership was terminated September 1, 1996.
(8) This partnership is currently operating.
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69
PREVIOUS DRILLING ACTIVITIES
The following table reflects the previous drilling activity of
partnerships sponsored by the managing partner or its affiliates.
PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
DRILLING RESULTS
Inception Through December 31, 1998
Gross(1) Net(2)
---------------------- -------------------------------------------
Partnership Completed Dry Completed Dry Percent Completed
----------- --------- --------- --------- --------- -----------------
Mewbourne Oil Ltd., 1977-A(3) ......................... 15 4 8.00 2.33 77%
Mewbourne Oil Ltd., 1978A(7) .......................... 35 11 20.68 6.58 76%
Mewbourne Oil Ltd., 1978B (6) ......................... 31 8 15.66 4.10 79%
Mewbourne Oil Ltd., 1979(3) ........................... 27 12 13.60 5.62 71%
Mewbourne Oil Ltd., 1980(3)(4) ........................ 34 11 3.31 0.96 78%
-------- -------- -------- -------- --------
Total ........................................... 142 46 61.25 19.59 76%
======== ======== ======== ======== ========
Mewbourne Development Partners 92 GP(7) ............... 6 4 0.73 0.56 56%
Mewbourne Development Partners 93-A, L.P.(7) .......... 9 0 2.57 0 100%
Mewbourne Development Partners 93-B, L.P.(7) .......... 14 0 2.09 0 100%
Mewbourne Development Partners 94-A, L.P.(7) .......... 8 1 1.19 0.14 89%
Mewbourne Development Partners 94-B, L.P.(7) .......... 5 0 1.28 0 100%
Mewbourne Development Partners 94-C, L.P.(7) .......... 4 0 1.30 0 100%
Mewbourne Energy Partners 1994 Private L.P.(7) ........ 5 1 3.03 0.33 90%
Mewbourne Energy Partners 95-A, L.P.(7) ............... 7 0 2.91 0 100%
Mewbourne Energy Partners 95-B, L.P.(7) ............... 6 3 2.03 .74 73%
Mewbourne Energy Partners 96-A, L.P.(7) ............... 14 3 4.75 .73 87%
Mewbourne Energy Partners 97-A, L.P.(7) ............... 14 3 2.67 .45 86%
Mewbourne Energy Partners 98-A, L.P.(5)(7) ............ 6 1 1.41 .18 88%
-------- -------- -------- -------- --------
Total ........................................... 98 16 25.76 3.13 89%
======== ======== ======== ======== ========
- -----------------
(1) Gross wells include all wells in which investors owned a working
interest.
(2) Net wells is the total percentage of working interest owned by the
partnership in the wells.
(3) This partnership was terminated on November 30, 1994.
(4) The activities of this partnership consisted solely of exploratory
drilling.
(5) As of December 31, 1998, this partnership was engaged in drilling and
completion activities.
(6) This partnership was terminated September 1, 1996.
(7) This partnership is currently operating.
PAYOUT AND NET CASH TABLES
The following tables provide information concerning the operating
results of partnerships sponsored by the managing partner or its affiliates.
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70
PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
INVESTORS' PAYOUT TABLE
December 31, 1998
Total Expenditures Revenues Before
Investors' Funds Including Operating Deducting Operating
Partnership Invested (1) Costs (2) Costs (3)
----------- ------------------- ------------------- ------------------
Mewbourne Oil, Ltd. 1977(4)(5)...................................... $2,643,700 $ 6,269,489 $ 6,527,236
Mewbourne Oil, Ltd. 1978A(4)(9)..................................... 3,121,150 19,613,927 22,074,592
Mewbourne Oil, Ltd. 1978B(4)(8)..................................... 3,247,534 12,719,565 13,452,048
Mewbourne Oil, Ltd. 1979(4)(5)...................................... 3,541,520 11,371,906 17,853,374
Mewbourne Oil, Ltd. 1980(4)(5)(6)................................... 1,637,969 3,464,815 1,555,414
Mewbourne Development Partners 92 GP(9)............................. 1,049,800 1,575,787 1,067,952
Mewbourne Development Partners 93-A, L.P.(9)........................ 1,250,848 1,810,103 915,031
Mewbourne Development Partners 93-B, L.P.(9)........................ 1,175,725 1,814,930 1,066,040
Mewbourne Development Partners 94-A, L.P.(9)........................ 1,080,690 1,614,925 1,044,160
Mewbourne Development Partners 94-B, L.P.(9)........................ 914,151 1,600,052 1,254,978
Mewbourne Development Partners 94-C, L.P.(9)........................ 932,253 1,575,592 1,237,938
Mewbourne Energy Partners 1994 Private L.P.(9)...................... 1,470,000 1,709,724 751,881
Mewbourne Energy Partners 95-A, L.P.(9)............................. 1,619,000 2,113,095 2,163,893
Mewbourne Energy Partners 95-B, L.P.(9)............................. 2,011,000 2,283,788 668,733
Mewbourne Energy Partners 96-A, L.P. (9)............................ 3,872,000 4,524,499 1,893,161
Mewbourne Energy Partners 97-A, L.P.(9)............................. 3,141,000 3,754,125 1,513,880
Mewbourne Energy Partners 98-A, L.P.(7)(9).......................... 3,698,000 1,457,298 5,735
- ----------
(1) Total subscriptions less organization, promotion, and, if applicable,
management fees.
(2) Includes total of all subscriptions, organization, promotion, and
management fees, drilling and completion costs, and operating costs.
Assumes all investors paid cash for their interests.
(3) Represents all oil and gas revenues credited to the investors net of
royalties and other burdens. Does not include interest or other income.
(4) The sharing of the partnership revenues and costs between the managing
partner and the investors was significantly different than the sharing
of the revenues and costs between the managing partner and the general
and limited partners in the partnership.
(5) This partnership was terminated on November 30, 1994.
(6) The activities of this partnership consisted solely of exploratory
drilling.
(7) As of December 31, 1998, this partnership was engaged in drilling and
completion activities.
(8) This partnership was terminated on September 1, 1996.
(9) This partnership is currently operating.
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71
PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
INVESTORS' NET CASH TABLE
December 31, 1998
Total Expenditures Total Revenues
Investors' Funds Net of Operating After Deducting Cash
Partnership Invested (1) Costs (2) Operating Costs(3) Distributions(4)
----------- ---------------- ---------------- ----------------- --------------
Mewbourne Oil, Ltd. 1977(5)(6)..................... $2,643,700 $ 3,716,418 $ 3,974,165 $ 3,223,641(7)
Mewbourne Oil, Ltd. 1978A(5)(11)................... 3,121,150 11,722,902 14,138,567 6,919,320(7)
Mewbourne Oil, Ltd. 1978B(5)(10)................... 3,247,534 7,687,559 8,420,042 4,861,930(7)
Mewbourne Oil, Ltd. 1979(5)(6)..................... 3,541,520 7,172,702 13,654,170 11,874,362(7)
Mewbourne Oil, Ltd. 1980(5)(6)(8).................. 1,637,969 2,895,049 985,648 0(7)
Mewbourne Development Partners 92 GP(11)........... 1,049,800 1,369,090 861,255 659,835(7)
Mewbourne Development Partners 93-A, L.P.(11)...... 1,250,848 1,533,054 637,982 518,760(7)
Mewbourne Development Partners 93-B, L.P.(11)...... 1,175,715 1,516,161 767,271 604,870(7)
Mewbourne Development Partners 94-A, L.P.(11)...... 1,080,690 1,405,913 775,148 635,580(7)
Mewbourne Development Partners 94-B, L.P.(11)...... 914,151 1,251,236 906,162 675,150(7)
Mewbourne Development Partners 94-C, L.P.(11)...... 932,253 1,258,458 920,804 697,950(7)
Mewbourne Energy Partners 1994 Private L.P.(11).... 1,470,000 1,534,186 576,343 519,750(7)
Mewbourne Energy Partners 95-A, L.P.(11)........... 1,619,000 1,768,806 1,819,604 1,566,180(7)
Mewbourne Energy Partners 95-B, L.P.(11)........... 2,011,000 2,033,124 418,069 320,760
Mewbourne Energy Partners 96-A, L.P.(11)........... 3,872,000 4,037,073 1,405,735 1,158,300
Mewbourne Energy Partners 97-A, L.P.(11)........... 3,141,000 3,529,688 1,289,443 905,850
Mewbourne Energy Partners 98-A, L.P.(9)(11)........ 3,698,000 1,456,213 4,650 0
- ----------
(1) Total subscriptions less organization, promotion, and management fees.
(2) Includes total of all subscription, organization, promotion, and
management fees, and drilling and completion costs.
(3) Represents all oil and gas revenues credited to the investors net of
royalties, other burdens and operating costs. Does not include interest
or other income.
(4) Net cash distributed to investors.
(5) The sharing of the partnership revenues and costs between the managing
partner and the investors was significantly different than the sharing
of the revenues and costs between the managing partner and the general
and limited partners in the partnership.
(6) This partnership was terminated on November 30, 1994.
(7) The 1977 partnership retained $553,549 of distributable operating cash
flow to reinvest in additional drilling. The 1978A, 1978B, 1979 and
1980 partnerships retained $1,836,329, $3,580,177, $2,326,134 and
$223,343 of distributable operating cash flow to reinvest in additional
drilling, respectively, and $5,391,821, $30,072, $125,133 and $732,939
of distributable operating cash flow was used to repay borrowings of
the partnership, respectively. The 92 GP, 93-A, 93-B, 94-A, 94-B, 94-C
and MEP 94-Private partnerships retained $64,165, $24,614, $76,838,
$82,864, $124,975, $111,208, $25,852, respectively of distributable
operating cash flow to complete drilling operations.
(8) The activities of this partnership consisted solely of exploratory
drilling.
(9) As of December 31, 1998, this partnership was engaged in drilling and
completion activities.
(10) This partnership was terminated on September 1, 1996.
(11) This partnership is currently operating.
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72
PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
MANAGING PARTNER'S PAYOUT TABLE
December 31, 1998
Total Expenditures Including Revenues Before Deducting
Partnership Operating Costs (1) Operating Costs (2)
----------- ---------------------------- -------------------------
Mewbourne Oil, Ltd. 1977(3)(4)......................... $1,658,587 $2,293,090
Mewbourne Oil, Ltd. 1978A(3)(8)........................ 5,950,994 7,706,243
Mewbourne Oil, Ltd. 1978B(3)(7)........................ 3,732,499 4,975,412
Mewbourne Oil, Ltd. 1979(3)(4)......................... 3,024,062 6,603,302
Mewbourne Oil, Ltd. 1980(3)(4)(5)...................... 704,328 575,287
Mewbourne Development Partners 92 GP(8)................ 195,977 266,987
Mewbourne Development Partners 93-A, L.P.(8)........... 242,036 228,757
Mewbourne Development Partners 93-B, L.P.(8)........... 247,392 266,510
Mewbourne Development Partners 94-A, L.P.(8)........... 227,162 261,040
Mewbourne Development Partners 94-B, L.P.(8)........... 231,911 313,746
Mewbourne Development Partners 94-C, L.P.(8)........... 224,720 309,485
Mewbourne Energy Partners 1994 Private L.P.(8)......... 17,269 7,595
Mewbourne Energy Partners 95-A, L.P.(8)................ 125,395 323,341
Mewbourne Energy Partners 95-B, L.P.(8)................ 106,323 99,926
Mewbourne Energy Partners 96-A, L.P.(8)................ 217,403 282,886
Mewbourne Energy Partners 97-A, L.P.(8)................ 153,116 226,212
Mewbourne Energy Partners 98-A, L.P.(6)(8)............. 45,458 857
- ----------
(1) Includes managing partner's share of drilling and completion costs.
(2) Represents all oil and gas revenues credited to the managing partner
net of royalties and other burdens. Does not include interest or other
income.
(3) The sharing of the partnership revenues and costs between the managing
partner and the investors was significantly different than the sharing
of the revenues and costs between the managing partner and the general
and limited partners in the partnership.
(4) This partnership was terminated on November 30, 1994.
(5) The activities of this partnership consisted solely of exploratory
drilling.
(6) As of December 31, 1998, this partnership was engaged in drilling and
completion activities.
(7) This partnership was terminated on September 1, 1996.
(8) This partnership is currently operating.
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73
PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
MANAGING PARTNER'S NET CASH TABLE
December 31 1998
Total Revenues After
Total Expenditures Net Deducting Operating
Partnership Operating Costs(1) Costs (2) Cash Distributions(3)
----------- ------------------ -------------------- ---------------------
Mewbourne Oil, Ltd. 1977(4)(5) ........................ $ 762,173 $ 1,396,676 $ 1,137,362
Mewbourne Oil, Ltd. 1978A(4)(9) ....................... 3,185,126 4,940,375 3,069,544
Mewbourne Oil, Ltd. 1978B(4)(8) ....................... 1,871,615 3,114,528 1,890,870
Mewbourne Oil, Ltd. 1979(4)(5) ........................ 1,470,929 5,050,169 4,499,400
Mewbourne Oil, Ltd. 1980(4)(5)(6) ..................... 493,595 364,554 0
Mewbourne Development Partners 92 GP(9) ............... 144,302 215,312 164,959
Mewbourne Development Partners 93-A, L.P.(9) .......... 172,772 159,493 129,690
Mewbourne Development Partners 93-B, L.P.(9) .......... 172,703 191,811 151,212
Mewbourne Development Partners 94-A, L.P.(9) .......... 159,897 193,775 158,895
Mewbourne Development Partners 94-B, L.P.(9) .......... 144,699 226,534 168,795
Mewbourne Development Partners 94-C, L.P.(9) .......... 145,435 230,200 174,487
Mewbourne Energy Partners 1994 Private L.P.(9) ........ 15,498 5,824 5,250
Mewbourne Energy Partners 95-A, L.P.(9) ............... 73,950 271,896 234,027
Mewbourne Energy Partners 95-B, L.P.(9) ............... 69,136 62,839 47,930
Mewbourne Energy Partners 96-A, L.P.(9) ............... 144,567 210,050 173,079
Mewbourne Energy Partners 97-A, L.P.(9) ............... 119,583 192,679 135,357
Mewbourne Energy Partners 98-A, L.P. (7) .............. 45,296 695 0
- ----------
(1) Includes managing partner's share of drilling and completion costs,
exclusive of operating costs.
(2) Represents all oil and gas revenues credited to the managing partner
net of royalties, other burdens and operating costs. Does not include
interest or other income.
(3) Net cash distributed to managing partner. May include return of
capital.
(4) The sharing of the partnership revenues and costs between the managing
partner and the investors was significantly different than the sharing
of the revenues and costs between the managing partner and the general
and limited partners in the partnership.
(5) This partnership was terminated on November 30, 1994.
(6) The activities of this partnership consisted solely of exploratory
drilling.
(7) As of December 31, 1998, this partnership was engaged in drilling and
completion activities.
(8) This partnership was terminated on September 1, 1996.
(9) This partnership is currently operating.
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74
TAX DEDUCTIONS AND TAX CREDITS
The following two tables reflect the investors' share of the following
described partnerships' available tax deductions that were reported in the
partnerships' tax returns and such share of tax deductions as a percentage of
their subscriptions. The following percentages do not reflect the effect of the
revenues from the partnership's operations and are subject to audit adjustments
by the IRS. The following tables are based on past experience and should not be
considered as necessarily indicative of the results that may be expected from an
investment in a partnership. It is suggested that prospective subscribers
consult with their tax advisors concerning the tax benefits available to them
taking into account their individual tax circumstances. The tax benefits
available to each investor may vary materially depending upon their individual
tax circumstances.
PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
CUMULATIVE TAX BENEFITS TO INVESTORS
PER $10,000 INVESTMENT
December 31, 1998
Aggregate Cumulative Tax Benefits
First Year Tax Deductions First Year Tax Through December 31,
Partnership Deductions (1) Thereafter (1) Benefits (2) 1998 (2)
- -------------------------------------------------- -------------- -------------- -------------- ------------------------
Mewbourne Oil, Ltd. 1977(3) ...................... $ 2,902 $ 3,326 $ 2,031 $ 4,336
Mewbourne Oil, Ltd. 1978A(7) ..................... 5,709 14,402 3,996 12,056
Mewbourne Oil, Ltd. 1978B(6) ..................... 2,896 9,445 2,027 8,293
Mewbourne Oil, Ltd. 1979(3) ...................... 4,999 5,348 3,500 6,753
Mewbourne Oil, Ltd. 1980(3)(4) ................... 2,926 6,284 2,048 5,885
Mewbourne Development Partners 92 GP(7) .......... 1,964 5,270 609 2,696
Mewbourne Development Partners 93-A, L.P.(7) ..... 4,228 2,214 1,674 2,551
Mewbourne Development Partners 93-B, L.P.(7) ..... 2,321 4,429 919 2,673
Mewbourne Development Partners 94-A, L.P.(7) ..... 6,065 1,218 2,402 2,884
Mewbourne Development Partners 94-B, L.P.(7) ..... 5,523 1,849 2,187 2,919
Mewbourne Development Partners 94-C, L.P.(7) ..... 4,955 2,252 1,962 2,853
Mewbourne Energy Partners 1994 Private L.P.(7) ... 5,057 2,838 2,003 3,126
Mewbourne Energy Partners 95-A, L.P.(7) .......... 5,239 626 2,075 2,320
Mewbourne Energy Partners 95-B, L.P.(7) .......... 3,716 3,630 1,472 2,909
Mewbourne Energy Partners 96-A, L.P.(7) .......... 3,479 2,795 1,378 2,485
Mewbourne Energy Partners 97-A, L.P.(7) .......... 3,781 3,430 1,497 2,855
Mewbourne Energy Partners 98-A, L.P.(5)(7) ....... 2,867 0 1,135 1,135
- ----------
(1) Tax deductions include Non-Capital Expenditures.
(2) Tax benefits are tax deductions multiplied by the respective year's
maximum individual tax rate.
(3) This partnership was terminated on November 30, 1994.
(4) The activities of this partnership consisted solely of exploratory
drilling.
(5) As of December 31 1998, this partnership was engaged in drilling and
completion activities.
(6) This partnership was terminated on September 1, 1996.
(7) This partnership is currently operating.
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PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
CASH DISTRIBUTIONS AND TAX BENEFITS
AS A PERCENT OF TOTAL SUBSCRIPTIONS
December 31, 1998
(Investors' share only)
Cash
Partnership Distributions (1) Tax Benefits (2) Total Return (3)
----------- ------------------- ---------------- -----------------
Mewbourne Oil, Ltd. 1977(4)(5).................. 111.5%(6) 43.3% 154.9%
Mewbourne Oil, Ltd. 1978A(4)(10)................ 200.2%(6) 120.6% 320.8%
Mewbourne Oil, Ltd. 1978B(4)(9)................. 135.8%(6) 82.9% 218.7%
Mewbourne Oil, Ltd. 1979(4)(5).................. 304%(6) 67.5% 371.5%
Mewbourne Oil, Ltd. 1980(4)(5)(7)............... 0.0%(6) 58.9% 58.9%
Mewbourne Development Partners 92 GP(10)........ 56.9%(6) 27.0% 83.8%
Mewbourne Development Partners 93-A, L.P.(10)... 37.5%(6) 25.5% 63.1%
Mewbourne Development Partners 93-B, L.P.(10)... 46.6%(6) 26.7% 73.3%
Mewbourne Development Partners 94-A, L.P.(10)... 53.2%(6) 28.8% 82.1%
Mewbourne Partners 94-B, L.P.(10)............... 66.9%(6) 29.2% 96.0%
Mewbourne Development Partners 94-C, L.P.(10)... 67.8%(6) 28.5% 96.3%
Mewbourne Energy Partners 1994 Private L.P.(10). 35.4%(6) 31.3% 66.6%
Mewbourne Energy Partners 95-A, L.P.(10)........ 96.7%(6) 23.2% 119.9%
Mewbourne Energy Partners 95-B, L.P.(10)........ 16.0%(6) 29.1% 45.0%
Mewbourne Energy Partners 96-A, L.P.(10)........ 29.9%(6) 24.9% 54.8%
Mewbourne Energy Partners 97-A, L.P.(10)........ 28.8%(6) 28.6% 57.4%
Mewbourne Energy Partners 98-A, L.P.(8)(10)..... 0.0% 11.4% 11.4%
- ----------------
(1) Represents total cash distributions made to partners divided by total
funds invested by partners.
(2) Total tax benefits divided by total funds invested by partners. This
table assumes investors were able to fully utilize all tax benefits at
the maximum marginal federal rate.
(3) Sum of (1) and (2).
(4) The sharing of the partnership revenues and costs between the managing
partner and the investors was significantly different than the sharing
of the revenues and costs between the managing partner and the general
and limited partners in the partnership.
(5) This partnership was terminated on November 30, 1994.
(6) The 1977 partnership retained $553,549 of distributable operating cash
flow to reinvest in additional drilling. The 1978A, 1978B, 1979 and
1980 partnerships retained $1,836,329, $3,580,177, $2,326,134 and
$223,343 of distributable operating cash flow to reinvest in additional
drilling, respectively, and $5,391,821, $30,072, $125,133 and $732,939
of distributable operating cash flow was used to repay borrowings of
the partnership, respectively. The 92 GP, 93-A, 93-B, 94-A, 94-B, 94-C
and MEP 94-Private partnerships retained $65,165, $24,614, $76,838,
$82,864, $124,975, $111,208, and $25,852, respectively of distributable
operating cash flow to complete drilling operations.
(7) The activities of this partnership consisted solely of exploratory
drilling.
(8) As of December 31, 1998, this partnership was engaged in drilling and
completion activities.
(9) This partnership was terminated on September 1, 1996.
(10) This partnership is currently operating.
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RESERVES AND FUTURE NET REVENUES OF PRIOR PROGRAMS
The following table summarizes as of December 31, 1998, the estimates
of the proved developed producing and proved developed non-producing reserves of
Mewbourne Development Partners 92 GP, Mewbourne Development Partners 93-A, L.P.,
Mewbourne Development Partners 93-B, L.P., Mewbourne Development Partners 94-A,
L.P., Mewbourne Development Partners 94-B, L.P., Mewbourne Development Partners
94-C, L.P., Mewbourne Energy Partners 95-A, L.P. Mewbourne Energy Partners 95-B,
L.P., Mewbourne Energy Partners 96-A, L.P., Mewbourne Energy Partners 97-A, L.P.
and Mewbourne Energy Partners 94 Private, the future net revenues attributable
to such reserves, and the present value of such future net revenues based on a
constant unescalated price of oil and gas and discounted at 10% per annum. The
following table also summarizes as of December 31, 1998, the estimates of the
proved undeveloped reserves of Mewbourne Energy Partners 95-B, L.P., and
Mewbourne Energy Partners 96-A, L.P., the future net revenues attributable to
such reserves, and the present value of such future net revenues based on a
constant unescalated price of oil and gas and discounted at 10% per annum. Such
information was prepared, as of December 31, 1998, by Forrest A. Garb &
Associates, Inc., the partnerships' independent expert. Current reserve
information is not maintained by the managing partner or its affiliates for the
five private limited partnerships sponsored during the years 1977 through 1980
and therefore the reserves of such partnerships is not included in the following
table. Likewise, insufficient reserve information currently exists for Mewbourne
Energy Partners 98-A, L.P., which is currently engaged in drilling and
completion activities, for the reserves of that partnership to be included in
the following table.
THE RESULTS OF PRIOR OPERATIONS SHOULD NOT BE CONSTRUED AS BEING
INDICATIVE OF THE RESULTS TO BE EXPECTED FROM AN INVESTMENT IN A PARTNERSHIP OR
QUANTITIES OF OIL AND GAS WHICH MAY BE DERIVED FROM WELLS TO BE DRILLED BY A
PARTNERSHIP, BUT MERELY SERVE AS ESTIMATES OF PROVED RESERVES FOR A PRIOR
PROGRAM, THE ESTIMATED FUTURE NET REVENUES OF SUCH PROGRAM BASED ON SUCH
RESERVES AND THE PRESENT VALUE OF THE ESTIMATED DISCOUNTED FUTURE NET REVENUES
OF SUCH PROGRAM.
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PRIOR PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS
Proved Reserves and Future Net Revenues
as of December 31, 1998
- --------------------------------------------------------------------------------
Present
Value
Net Oil Net Gas Estimated Discounted
Category of Proved Reserves Reserves Future Net at 10% Per
Partnership Reserves (BBLS) (MCF) Revenues Annum
- --------------------------------------- ------------------ ----------- ----------- ----------- ----------
Mewbourne Development Partners 92 GP (1)............. Proved Developed 545 56,804 77,150 63,533
Mewbourne Development Partners 93-A, L.P. (1)........ Proved Developed 4,024 359,468 314,028 200,005
Mewbourne Development Partners 93-B, L.P. (1)........ Proved Developed 17,397 433,334 502,773 292,210
Mewbourne Development Partners 94-A, L.P. (1)........ Proved Developed 30,447 388,938 536,534 300,175
Mewbourne Development Partners 94-B, L.P. (1)........ Proved Developed 49,047 431,003 586,378 372,033
Mewbourne Development Partners 94-C, L.P. (1)........ Proved Developed 40,217 493,714 695,282 445,356
Mewbourne Energy Partners 94 Private L.P. (1)........ Proved Developed 13,310 893,841 895,357 480,801
Mewbourne Energy Partners 95-A, L.P. (2)............. Proved Developed 31,089 783,195 889,994 547,661
Mewbourne Energy Partners 95-B, L.P. (2)............. Proved Developed 6,940 490,956 546,545 329,717
Proved Undeveloped 244 40,858 66,693 39,483
Total Proved (3) 7,184 531,814 613,238 369,200
Mewbourne Energy Partners 96-A, L.P. (2)............. Proved Developed 27,952 2,552,765 3,415,599 2,075,210
Proved Undeveloped 1,741 289,982 359,333 194,882
Total Proved(3) 29,693 2,842,747 3,774,932 2,270,092
Mewbourne Energy Partners 97-A, L.P. (2)............. Proved Developed 9,725 2,965,142 4,286,668 2,359,442
Total Proved(3) 9,725 2,965,142 4,287,000 2,359,442
- ----------
(1) Includes the partnership's 80.808081% ownership interest and the
managing partner's 19.191919% ownership interest arising under drilling
program agreement between the managing partner and such partnership.
(2) Includes the partnership's 87.878788% ownership interest and the
managing partner's 12.121212% ownership interest arising under the
drilling program agreement between the managing partner and such
partnership.
(3) Total proved reserves is the sum of proved developed reserves and
proved undeveloped reserves.
Reserve estimates and future net cash flow attributable to such
reserves were prepared using an unescalated price for oil and gas. The price
used was the price being received as of December 31, 1998 which on a weighted
average basis was $9.66 per barrel of oil and $2.04 per mcf of gas. In arriving
at estimated future net revenues, lease operating costs (including overhead
charges under operating agreements), transportation costs, costs of producing,
severance taxes, ad valorem taxes and estimated future capital expenditures were
deducted from revenue anticipated to be received and were not increased to
reflect the anticipated effects of inflation. No deduction was made for
partnership or program overhead expenses, federal income taxes, depletion,
depreciation or amortization or other indirect costs.
There are numerous uncertainties inherent in estimating quantities of
proved reserves and in projecting the future rates of production and the timing
of development expenditures. The reserve data represents estimates
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only. Estimates of economically recoverable oil and gas reserves and of the
future net revenues from such reserves are based on a number of factors and
assumptions, such as historical production of the properties as compared with
similar producing properties, the assumed effects of regulation by governmental
agencies, taxes, development costs and workover and remedial costs, all of which
may vary considerably from actual results.
FOR THE FOREGOING REASONS, ESTIMATES OF THE ECONOMICALLY RECOVERABLE
RESERVES OF OIL AND GAS ATTRIBUTABLE TO ANY PARTICULAR GROUP OF PROPERTIES, THE
CLASSIFICATION OF SUCH RESERVES AND ESTIMATES OF THE FUTURE NET REVENUES
EXPECTED THEREFROM, PREPARED AT DIFFERENT TIMES OR PREPARED BY DIFFERENT
ENGINEERS, MAY VARY CONSIDERABLY. THE FUTURE NET REVENUES SHOWN ON THE TABLE SET
FORTH ABOVE SHOULD NOT BE TAKEN AS THE FAIR MARKET VALUE OF THE ESTIMATED OIL
AND GAS RESERVES.
TAX ASPECTS
The following discussion is a general summary only of the United States
federal income and various other tax aspects of partnerships engaged in oil and
gas operations and the tax effects on their partners. It is impractical to
comment on all of the tax consequences of an investment in a partnership or of
the contemplated operations of the partnerships and the drilling programs. Such
consequences may vary depending on an investor partner's particular
circumstances. The discussion is directed primarily to individuals who are
citizens of the United States. Persons who are not individual U.S. citizens,
such as partnerships, corporations, trusts, estates, or tax-exempt entities,
including a pension, profit-sharing, or stock bonus plan, Keogh plan, IRA, or
other qualified employee benefit plan, or ERISA plan, may have federal income
tax consequences substantially different from those discussed below. A
particular investor may be subject to various facts and circumstances that are
applicable only to him and that may give rise to additional considerations. The
following discussion generally does not address any of those additional
considerations. In addition, an investment in interests may have state and local
tax consequences to a particular investor that are not discussed below.
Accordingly, each potential investor is urged to consult his tax advisor prior
to purchasing interests, with specific reference to the effect of his particular
facts and circumstances on the matters discussed in this prospectus. See "--
General Tax Provisions" and "Terms of the Offering -- Suitability Standards."
The tax considerations and opinions of counsel discussed herein are
based on existing provisions of the Internal Revenue Code, existing Treasury
Regulations, published interpretations of the Internal Revenue Code and such
regulations by the IRS and existing court decisions, any of which could be
changed or become inapplicable at any time. Any new legislation, judicial
decisions, regulations, or other pronouncements may apply retroactively to
transactions prior to the date of such changes and could significantly modify
the statements made and tax considerations discussed in this prospectus.
A portion of the following discussion focuses on the characterization
of income or losses under various rules as ordinary income or loss or capital
gain or loss. At the present time, the marginal rate of federal income tax
applicable to long-term capital gains may be significantly more favorable for an
individual taxpayer, depending upon income level, than the rate on ordinary
income. Corporations, on the other hand, are taxable at the same rate on
ordinary income and capital gains.
OPINION OF COUNSEL
Vinson & Elkins L.L.P., counsel to the managing partner, has rendered
an opinion that addresses the material federal income tax consequences of an
investment in interests from the perspective of an individual investor who is a
U.S. citizen. The opinion of counsel states the following conclusions:
o At the time of its formation, a partnership and the related
drilling program will each be classified as a partnership for
federal income tax purposes.
o A partnership will not be classified as a corporation pursuant
to the "publicly traded partnership" rules of Section 7704 of
the Code.
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o Except as noted below, the allocation of income, gains,
losses, and deductions between the general and limited
partners and the managing partner under the partnership
agreement, and between a partnership and the managing partner
as participants in the related drilling program and Mewbourne
Oil Company as drilling program manager under the drilling
program agreement, will be respected for federal income tax
purposes.
o The allocation provisions of the partnership agreement and the
program agreement should be in compliance with Section 704(c)
of the Code with respect to property contributed to a drilling
program by the managing partner.
o The passive activity loss limitations of Section 469 of the
Code will not limit deductions available to a general partner
in a partnership, prior to any conversion of his general
partner interest in the partnership to a limited partner
interest, in respect of the partnership's drilling and
operation of wells pursuant to working interests.
o A partnership will not be treated as a "publicly traded
partnership" for purposes of the application of the passive
activity loss limitations of Section 469 of the Code.
o The conversion of a general partner interest to a limited
partner interest will be nontaxable, provided, however, that
any reduction in a partner's share of partnership debt
resulting from such conversion will be treated as a cash
distribution which could result in recognition of income.
For the reasons hereinafter described, counsel is unable to render an
opinion with respect to the following specific federal income tax issues:
o The validity of any special allocation of an item that is
dependent on a partner's basis in an oil and gas property (see
"-- Partnership Taxation -- Allocations").
o The amount, if any, of the organization and offering expenses
that will be deductible or amortizable (see "-- Partnership
Taxation -- Organization and Offering Expenses Sale
Commissions and Due Diligence Fees").
o The amount, if any, of the initial administrative costs that
will be deductible or amortizable (see "--Partnership Taxation
-- Management Fee," --Partnership Taxation -- Administrative
Costs").
o The deductibility in a given year of any intangible drilling
costs incurred in a year prior to the drilling of the wells to
which such costs relate (see "--Special Features of Oil and
Gas Taxation --Intangible Drilling Costs").
o The availability or extent of percentage depletion deductions
to the partners (see "-- Special Features of Oil and Gas
Taxation -- Depletion").
o Whether interests will be considered "publicly offered
securities" for purposes of ERISA (see "--General Tax
Provisions -- Investment by Tax-Exempt Entities").
Although counsel is unable to render an opinion as to the issues
described above, the discussion of federal income tax consequences set forth in
this prospectus under the headings "Risk Factors -- Tax Risks" and "Tax Aspects"
has been reviewed by counsel and, to the extent such discussion involves matters
of law, counsel is of the opinion that such discussion is accurate in all
material respects under the Code, the Treasury Regulations promulgated
thereunder and existing interpretations of such regulations and addresses fairly
the principal aspects of each material federal income tax issue relating to an
investment in interests by an individual citizen of the United States. Finally,
in light of the various opinions and assumptions described above, but subject to
the qualifications and limitations placed thereon, counsel is of the opinion
that the material federal income tax benefits of an investment in
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interests, in the aggregate, more likely than not will be realized in
substantial part by an investor partner who acquires his interests for profit,
provided that an investor partner who acquires limited partner interests either
is not subject to the passive activity loss limitations of Section 469 of the
Code or has sufficient passive income against which he can deduct his share of
any partnership deductions and losses. For a discussion of the timing of the
realization of such tax benefits, see "-- Special Features of Oil and Gas
Taxation -- Basis and At Risk Limitations."
The opinion of counsel is based on the facts described in this
prospectus and on representations made by the managing partner, which
representations are described in the following discussion. Any alterations of
the facts or representations may adversely affect the opinion rendered. An
opinion of counsel is not binding on the IRS. No rulings will be requested from
the IRS with respect to the tax consequences of ownership of interests in a
partnership, and no assurance can be given that the opinion expressed by counsel
herein would, if challenged, be sustained by a court, or that legislation,
judicial decision or administrative interpretation may not significantly modify
the conclusions expressed in such opinions.
Counsel has expressed no opinion with respect to the amount of
allowable deductions or losses that may be generated by a partnership, the
actual amount of an investor partner's share of allowable deductions or losses
from the activities of a partnership, the amount, if any, of taxable income that
may be generated by a partnership or the relationship between any such taxable
income and any distributions which may be made by a partnership.
EACH PROSPECTIVE INVESTOR PARTNER IS ADVISED TO CONSULT HIS TAX ADVISOR
WITH RESPECT TO THE UNITED STATES FEDERAL AND STATE INCOME TAX CONSEQUENCES OF
PARTICIPATION IN A PARTNERSHIP.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, THE FOLLOWING DISCUSSION
RELATES TO THE PARTNERSHIPS AND THE DRILLING PROGRAMS SEPARATELY.
PARTNERSHIP TAXATION
General. A partnership is not a taxable entity under federal income tax
laws. Instead, each partner reports on his federal income tax return for the
taxable year in which the partnership's taxable year ends his distributive share
of the income, gains, losses, deductions, and credits of the partnership,
irrespective of any actual cash distributions made to such partner during his
taxable year. For example, a partner will be required to report his share of
partnership income as determined under the partnership's method of accounting,
notwithstanding that the revenues resulting in such income are retained in whole
or in part by the partnership for payment of any partnership expenses or debt
service or for working capital. A partner's share of any partnership losses in a
taxable year may be applied against his income from other sources only to the
extent of the tax basis of his interest in the partnership and to the extent
permitted under the "passive activity" and "at risk" limitations. See "--Special
Features of Oil and Gas Taxation --Passive Activity Loss Limitations" and "--
Special Features of Oil and Gas Taxation -- Basis and At Risk Limitations."
Partnership Classification. Each partnership will invest in the related
drilling program, which will be a joint operation of that partnership, the
managing partner and the drilling program manager. Each drilling program is
intended to constitute a partnership for tax purposes only; it is not intended
to be a partnership under state law and will not be subject to state law
provisions comparable to those applicable to the partnerships. Expected tax
consequences resulting from an investment in interests are dependent upon the
classification of the partnerships and the drilling programs as partnerships for
federal income tax purposes. The expenditures made and income received by a
drilling program will, if the drilling program is classified as a partnership
for federal income tax purposes, flow through to the related partnership and, if
the partnership is classified as a partnership for federal income tax purposes,
ultimately to the partners in amounts equal to their respective distributive
shares of income, gain, loss, deduction and credit. In order for the anticipated
tax consequences of an investment in interests to materialize, however, the
partnerships and the drilling programs must be classified as partnerships for
federal income tax purposes and not as associations or "publicly traded
partnerships" taxable as corporations. Any references in the following
discussion to partnerships relate only to organizations treated as partnerships
for federal income tax purposes and do not imply that the drilling program is a
partnership for any other purpose.
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Treasury Regulations under Section 7701 of the Code provide that a
domestic business entity other than a "corporation," including a "publicly
traded partnership," may elect whether to be treated as a partnership or an
association (taxable at a corporation) for federal income tax purposes. Treasury
Regulation Section 301.7701-2 defines "corporations" to include corporations
denominated as such under applicable law, associations, joint stock companies,
insurance companies and other entities distinguishable from the partnerships and
the drilling programs. Under a default rule in the Treasury Regulations,
partnerships formed under a state statute, such as the partnerships, and joint
ventures, such as the drilling programs, are treated as partnerships for federal
income tax purposes, unless such entities affirmatively elect to be treated as
associations taxable as corporations. The partnerships and the drilling programs
will not elect to be treated as associations taxable as corporations for federal
income tax purposes.
Counsel to the managing partner is of the opinion that, at the time of
formation, each partnership and each drilling program will be treated as a
partnership for federal income tax purposes. Such opinion is based on the
following representations made by the managing partner:
o A partnership will be organized and operated in accordance
with all applicable state statutes and the partnership
agreement and the related drilling program will be organized
and operated in accordance with all applicable state statutes
and the drilling program agreement.
o No participant in a drilling program will elect to be excluded
from the provisions of Subchapter K of Chapter 1 of Subtitle A
of the Internal Revenue Code.
o The partnerships and the drilling programs will not elect to
be treated as corporations under the Section 7701 Treasury
Regulations.
No assurance can be given that a partnership or a drilling program will
not lose partnership status as a result of future changes in the law, or other
facts upon which the opinion of counsel is based.
The classification of a partnership or a drilling program as an
association taxable as a corporation for federal income tax purposes would have
a material adverse effect on the general and limited partners. If a drilling
program were determined to be taxable as a corporation, its income, deductions,
and credits would be reported by the drilling program and not its participants,
including the partnership, and the drilling program would be taxed directly on
its taxable income. Distributions by that drilling program to the related
partnership would be treated as taxable dividends to the extent of current and
accumulated earnings and profits of the drilling program. If a partnership were
determined to be taxable as a corporation, its income, deductions, and credits
would be reported by the partnership and not by its general and limited
partners, the partnership would be taxed directly on any net income, and
distributions to its general and limited partners would be treated as taxable
dividends to the extent of current and accumulated earnings and profits of the
partnership. Thus, any tax benefits anticipated from investment in a partnership
would be adversely affected or eliminated if either the partnership or the
related drilling program were treated as a corporation.
Section 7704 of the Internal Revenue Code treats certain "publicly
traded partnerships" as corporations for federal income tax purposes. Section
7704 defines a publicly traded partnership as a partnership in which the
partnership interests are traded on an established securities market or are
readily tradable on a secondary market or the substantial equivalent of a
secondary market. The rule taxing publicly traded partnerships as corporations,
however, is specifically inapplicable to a partnership for any year if at least
90% of the partnership gross income for such year and all preceding years
consists of, among other things, interest or income from the exploration,
development, production, processing, refining, transportation, or marketing of
oil and gas and gains from the sale of assets used to generate that income.
Counsel to the managing partner is of the opinion that neither partnership will
be taxable as a corporation pursuant to the "publicly traded partnership" rules
of Section 7704 of the Internal Revenue Code. Such opinion is based on the
following representations made by the managing partner:
o At least 90% of the gross income of each partnership in each
taxable year will consist of interest or income from the
exploration, development, production, processing, refining,
transportation, or marketing of oil and gas or gains from the
sale of assets used to generate that income.
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o The managing partner does not plan to list interests with, or
trade interests on, an established securities exchange or to
itself make a secondary market in interests.
o The sum of the percentage interests in the capital or profits
of a partnership sold or otherwise disposed of, including
redemptions or repurchases other than repurchases made
pursuant to the right of presentment, during any taxable year
will not exceed 2% of the total interests in the partnership's
capital or profits.
o The managing partner is not aware of any current public or
secondary market, or substantial equivalent of such a market,
for interests and does not anticipate that any such market
will develop.
o The managing partner will enforce the restriction on transfers
in the partnership agreement to prevent the partnership from
qualifying as a "publicly traded partnership."
Such opinion is not binding on the IRS, and there can be no assurance that the
IRS will not assert that a partnership is a "publicly traded partnership"
subject to treatment as a corporation pursuant to Section 7704 of the Internal
Revenue Code.
THE FOLLOWING DISCUSSION IS PREDICATED ON THE ASSUMPTION THAT THE
PARTNERSHIPS AND THE DRILLING PROGRAMS WILL BE CLASSIFIED AS PARTNERSHIPS FOR
FEDERAL INCOME TAX PURPOSES AND WILL NOT BE CLASSIFIED AS "PUBLICLY TRADED
PARTNERSHIPS."
Taxation of Partners. For each taxable year, each investor partner will
be required to report on his individual federal income tax return his share of
partnership income, gain, loss, deduction, and credit for such taxable year.
Each investor partner is required to take his share into account in computing
his federal income tax liability regardless of whether he has received or will
receive any cash distributions from a partnership. Therefore, he may be required
to report and pay tax on income that the partnership has earned but that has not
been distributed to him. This may occur, for example, when a partnership uses
revenues to repay partnership borrowings or to pay nondeductible expenditures.
A distribution of cash to an investor partner generally is not taxable
to such investor partner unless the amount of the distribution exceeds the
investor partner's basis in his interests. Any such excess generally should be
taxable as capital gain, assuming those interests are held as a capital asset.
If, however, any portion of the distribution is considered to be in exchange for
the investor partner's interest in ordinary income items, including potential
recapture of intangible drilling cost, depletion, and depreciation deductions,
that portion will be taxed as ordinary income even if the amount of the
distribution did not exceed the investor partner's tax basis in his interests.
In addition, an investor partner could recognize income if cash distributions
made to him cause his at risk amount to be reduced below zero. See "Tax Aspects
- -- Special Features of Oil & Gas Taxation -- Basis and At Risk Limitations."
The partnerships and the drilling programs will use the calendar year
and the accrual method of accounting for federal income tax purposes. The IRS,
however, could require a partnership or a drilling program to treat particular
items of income, gain, loss, or deduction under a different method of accounting
if it determines that the use of the accrual method with respect to that item
does not clearly reflect income. A change in the method of accounting could
defer deductions or accelerate income.
Allocations. Pursuant to the partnership agreement, all items of
partnership income, gain, loss, deduction, and credit are allocated 100% to the
general and limited partners and 0% to the managing partner.
Each partnership and the related drilling program will maintain a
capital account for each partner or participant in the drilling program which
will be credited (increased) by his or its contributions to the partnership or
drilling program and all items of income and gain allocated to such partner or
participant. Such capital account will be debited (reduced) by all distributions
and all deductions and losses allocated to such partner or participant. On
dissolution and liquidation of a partnership or drilling program, each partner
or participant will be entitled, after
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payment or provision for debts and liabilities and adjustment of the partners'
or participants' capital accounts for any unrealized gain or loss in properties
to be distributed in kind, to receive assets equal in value to his or its
respective positive capital account balance, if any, as so adjusted.
Partners are not obligated to restore deficit capital account balances
following the liquidation of their respective interests in a partnership. As
discussed under "Participation in Costs and Revenues," the partnership agreement
provides for modifications in the allocations described above if necessary to
prevent or eliminate any deficit capital account balance for any partner,
taking into account reasonably expected deductions and distributions in
subsequent years.
The manner in which the drilling program agreement allocates among the
participants therein items of cost and revenue and items of income, gain, loss,
deduction, and credit for income tax purposes is discussed under "Participation
in Costs and Revenues." The drilling program agreement requires any participant
with a deficit capital account balance following the distribution of liquidation
proceeds to restore such deficit to the drilling program.
Partnership allocations of income, gain, loss, deduction, and credit
among partners are governed generally by Section 704(b) of the Internal Revenue
Code. Section 704(b) provides that partnership allocations will be recognized
for federal income tax purposes if such allocations either have "substantial
economic effect" or are made, or deemed made, in accordance with the partners'
respective interests in the partnership, determined by taking into account all
relevant facts and circumstances. If an allocation of an item does not have
substantial economic effect, such item will be reallocated among the partners in
accordance with their interests in the partnership.
Treasury Regulations section 1.704-1(b) indicates that allocations will
have economic effect if, throughout the term of the partnership:
(a) they are reflected in the partners' capital accounts,
(b) such capital accounts are respected upon liquidation of
the partnership, and
(c) a partner with a deficit in his capital account following
the distribution of liquidation proceeds is required to restore the
amount of such deficit to the partnership.
If requirements (a) and (b) are satisfied, but requirement (c) is not,
an allocation may nevertheless be considered to have economic effect if the
allocation does not cause or increase a deficit in the recipient partner's
capital account balance, determined after taking into account certain
reasonably anticipated deductions and distributions, and the partnership
agreement contains a "qualified income offset" which provides that a partner who
unexpectedly receives an adjustment, allocation or distribution which causes or
increases a deficit balance will be allocated items of income and gain in an
amount and manner sufficient to eliminate such deficit balance as quickly as
possible. Since:
o the allocations of items of income, gain, loss, and deduction
under the partnership agreement and the drilling program
agreement are reflected in the partners' and participants'
capital accounts,
o those capital accounts will be recognized upon liquidation of
a partnership,
o the drilling program agreement requires a participant with a
deficit capital account balance after the distribution of
liquidation proceeds to restore the amount of such deficit to
the drilling program,
o the partnership agreement contains a "qualified income offset"
provision, and
o the allocations in the partnership agreement and the program
agreement should have economic effect under Section 704(b).
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The economic effect of an allocation will be "substantial" if there is
a reasonable possibility that the allocation will substantially affect the
dollar amounts to be received by the partners from the partnership, independent
of tax consequences.
Although the determination of whether economic effect is "substantial"
is a question of fact which may depend in part on the timing of income and
deductions and on consideration of the partners' and participants'
nonpartnership tax attributes, under present facts and circumstances, and except
as noted below, the economic effect of the allocations under the partnership
agreement and the drilling program agreement should be considered to be
substantial under Section 704(b) and regulations promulgated thereunder.
Counsel to the managing partner is of the opinion that, except as
discussed in the previous paragraph and below, the allocation of income, gains,
losses, and deductions between the general and limited partners and the managing
partner under the partnership agreement and between a partnership and as
participants under the drilling program agreement will be recognized for federal
income tax purposes.
Under Section 704(c) of the Internal Revenue Code, income, gain, loss,
and deduction with respect to property contributed to a partnership by a partner
must be shared among its partners in a manner that takes into account the
variation between the partnership's adjusted tax basis in such property and the
fair market value of the property at the time of contribution. It is not
expected that property will be contributed to a partnership by an investor
partner but property will be contributed to the drilling program by the managing
partner. Under the drilling program agreement, the adjusted tax basis with
respect to such contributed property will be allocated to the managing partner
and only the managing partner will be entitled to claim cost depletion with
respect to such property. Accordingly, counsel to the managing partner is of the
opinion that the allocation provisions of the partnership agreement and the
drilling program agreement should be in compliance with Section 704(c) with
respect to property contributed or deemed contributed to a partnership or a
drilling program.
Elections and Returns. Each partnership and each drilling program will
be subject to the partnership provisions of the Internal Revenue Code and to
similar provisions of any applicable state income tax laws. Each partnership and
each drilling program will adopt the accrual method of accounting and calendar
year as its taxable year for income tax purposes. By March 15 of each year or as
soon thereafter as reasonably possible, each investor partner will receive a
report showing his distributive share of items of income, gain, loss, deduction,
and credit for the preceding year.
While no federal income tax is required to be paid by an organization
classified as a partnership for federal income tax purposes, a partnership must
file federal income tax information returns which are subject to audit by the
IRS. Any such audit may lead to adjustments, in which event the general and
limited partners may be required to file amended personal federal income tax
returns. Any such audit also may lead to an audit of an investor partner's
individual tax return and adjustments to items unrelated to an investment in
interests.
Determinations of Partnership Items at Partnership Level. For purposes
of reporting, audit, and assessment of additional federal income tax, the tax
treatment of "partnership items" is determined at the partnership level. Each
partner must report such items on his individual tax return in a manner
consistent with the partnership determination. The IRS generally cannot initiate
deficiency proceedings against an individual partner with respect to partnership
items without first conducting an administrative proceeding at the partnership
level as to the correctness of the partnership's treatment of the item. An
individual partner may not file suit for a credit or a refund arising out of a
partnership item without first filing a request for an administrative proceeding
by the IRS at the partnership level. Individual partners are entitled to notice
of such administrative proceedings and decisions made at such proceedings,
except in the case of partners with less than a 1% profits interest in a
partnership having more than 100 partners. If a group of partners having an
aggregate profits interest of 5% or more in such a partnership so requests,
however, the IRS also must mail notices to a partner appointed by that group to
receive notice. All general and limited partners, whether or not entitled to
notice, are entitled to participate in the administrative proceedings at the
partnership level, although the partnership agreement provides for waiver of
certain of these rights by the general and limited partners. All general and
limited partners in a partnership, including those not entitled to notice, may
be
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bound by a settlement reached by the partnership's "tax matters partner," which
will be the managing partner. If a proposed tax deficiency is contested in any
court by any investor partner of a partnership or by the managing partner, all
general and limited partners of that partnership may be deemed parties to such
litigation and bound by the result reached therein.
Administrative Costs. The managing partner intends generally to take
the position that administrative costs reimbursed to the managing partner or the
drilling program manager by a partnership are deductible in the year of payment.
To the extent that administrative costs are determined to constitute an
organization or syndication cost or some other nondeductible cost, such amount
will not give rise to any deduction in the year of payment but, rather, will be
deductible (if at all) only over some period of time. The determination of the
portion (if any) of the Administrative Cost that is deductible and the timing of
any such deduction are factual issues. Therefore, counsel to the managing
partner is unable to render any opinion as to the amount, if any, of the
Administrative Cost reimbursement that will be deductible or amortizable.
Conversion of General Partner Interests. As discussed under "Terms of
the Offering -- Conversion of General Partner Interests," the general partner
interests in a partnership may be converted to limited partner interests
following the completion of the partnership's drilling activities. Such
conversion will not constitute a sale or exchange. Accordingly, a partner will
not recognize any gain or loss as a result of a conversion of a general partner
interest in a partnership into a limited partner interest in the partnership,
unless the converting general partner's relative share of any partnership
liabilities is reduced as a result of such conversion. Such a reduction would be
treated as a constructive distribution of cash to that general partner, which
would reduce the basis of his interests and would be taxable to the extent it
exceeds his basis or at risk amount. See "Tax Aspects -- Special Features of
Partnership Taxation -- Basis and At Risk Limitations."
A partnership will constructively terminate for federal income tax
purposes if 50% or more of the interests in profits and capital of the
partnership are sold or exchanged in any consecutive 12-month period. The IRS
has ruled that a conversion of a general partner interest to a limited partner
interest in the same partnership does not result in a deemed sale or exchange of
the converted interests and therefore is not taken into account in determining
whether a constructive termination has occurred. Assuming this ruling is not
revoked or modified, constructive termination of a partnership or a drilling
program is unlikely to occur by reason of the conversion of the interests held
by general partners to limited partner interests.
If a constructive termination of a partnership or a drilling program
occurred, the partnership or the drilling program would be treated as
transferring all of its assets and liabilities to a new partnership in exchange
for an interest in the new partnership and, immediately thereafter, the
partnership or the drilling program would be treated as distributing its
interest in the new partnership to the partners or the participants in
liquidation of the partnership or the drilling program. Such a constructive
termination could have adverse federal income tax consequences, such as the
bunching of taxable income within one taxable period with respect to any
investor partner whose taxable year differs from the partnership's, the
recognition of taxable income by any investor partner who is deemed to receive a
constructive distribution of cash in excess of his basis in interests or his "at
risk" amount at the time of the constructive termination, or the loss of
elections made by the partnership. For additional discussion of the tax
consequences of the conversion, see "-- Special Features of Oil and Gas Taxation
- -- Passive Activity Loss Limitations."
SPECIAL FEATURES OF OIL AND GAS TAXATION
Following is a summary of some of the principal features of United
States federal income taxation of oil and gas operations which may apply to the
partnerships and the drilling programs.
Lease Acquisition Costs. The cost of acquiring oil and gas leasehold or
similar property interests is a capital expenditure which must be recovered
through depletion deductions if the lease is productive. See "-- Special
Features of Oil and Gas Taxation -- Depletion" below. If a lease is proved
worthless and abandoned, the cost of acquisition less any depletion claimed may
be deducted as an ordinary loss in the year the lease becomes worthless. See
"--Special Features of Oil and Gas Taxation -- Depreciation" below.
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Geophysical Costs. The cost of geophysical exploration must be
capitalized as a lease acquisition cost if a property is (or may be) acquired or
retained on the basis of data from such exploration. Otherwise, such costs
generally may be deducted as ordinary expenses.
Operating and Administrative Costs. Amounts paid for operating a
producing well are deductible as ordinary business expenses, as are
administrative costs to the extent they constitute ordinary and necessary
business expenses which are reasonable in amount.
Intangible Drilling Costs. Owners of working interests in oil and gas
properties may elect to deduct intangible drilling costs they incur, such as
expenditures for drilling, labor, wages, hauling, fuel, supplies, and other
costs incident to and necessary for the drilling and preparation of wells for
production. The partnerships and the drilling programs will elect to deduct all
intangible drilling costs. Assuming proper elections, each investor partner will
be entitled to deduct his distributive share of the intangible drilling costs
incurred by or allocable to a partnership, subject to the basis, at risk and
passive activity loss limitations discussed below. See "-- Special Features of
Oil and Gas Taxation -- Basis and At Risk Limitations" and "-- Special Features
of Oil and Gas Taxation -- Passive Activity Loss Limitations." Any intangible
drilling costs allocable to a partnership which are incurred prior to the
formation of the partnership are not deductible by the partners even if paid by
the partnership. Such costs must be capitalized as lease acquisition costs. See
"-- Special Features of Oil and Gas Taxation -- Lease Acquisition Costs."
Some capital contributions to a partnership may be expended through the
related drilling program in one year as required under drilling contracts for
services to be performed in the following year. A partnership may deduct such
expenses in the year incurred only if "economic performance" with respect to
such partnership occurs in such year or, subject to limitations, within 90 days
after the close of such year, and all other requirements for deductions by
accrual basis taxpayers are met. In the case of the drilling of an oil and gas
well by an entity such as a partnership, "economic performance" is generally
deemed to occur when the well is spudded (i.e., boring is commenced). Even if
all of these requirements are met, general and limited partners will be entitled
to deduct their share of any such prepayments only to the extent of the "cash
basis" of their interests, determined without regard to any liability of the
partnership and any amount borrowed by an investor partner with respect to the
partnership. If any of these requirements are not satisfied in the year the
expense is incurred, any deductions attributable to such expense would be
deferred to the subsequent year in which the contract to which such expense
relates is performed and subject to tax law in effect at such time. The
deductibility of any intangible drilling costs by a partnership in the year
incurred is an inherently factual determination predicated largely on future
events. Accordingly, counsel to the managing partner is unable to express any
opinion as to the deductibility in a given year of any intangible drilling costs
paid or incurred in a year prior to the performance of the drilling activities
to which such costs relate. If general and limited partners are admitted to a
partnership late in a calendar year and the partnership expends a substantial
portion of its capital or contracts for required prepayments in such year which
do not meet the requirements discussed above, a significant portion of any
material tax benefits associated with an investment in that partnership that
would otherwise be realized in the year of admission would be deferred to a
subsequent year or years and subject to the tax law in effect at such time.
Subject to the limitations discussed above, an investor partner who
qualifies as an "independent producer" (see -- Special Features of Oil and Gas
Taxation --Depletion) will be entitled to deduct his full share of domestic
intangible drilling costs for federal income tax purposes. An investor partner
who does not qualify as an "independent producer" may currently deduct 70% of
the intangible drilling costs and may amortize the remaining 30% of such costs
over a period of 60 months, except that all costs of dry holes may be deducted
in the year the drilling is completed.
Previously deducted intangible drilling costs will be recaptured as
ordinary income upon the disposition by a partnership of property to which such
deductions relate (to the extent of the gain recognized) or upon the disposition
by an investor partner of interests. See "-- Special Features of Oil and Gas
Taxation --Sale of Gas Property" and "--Special Features of Oil and Gas Taxation
- -- Sale of interests."
Depreciation. The cost of equipment such as casing, tubing, tanks,
pumping units, and other similar property may not be deducted currently. Such
costs must be capitalized and recovered through depreciation. The
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depreciation deduction for most equipment used in domestic oil and gas
exploration and production is calculated using an accelerated recovery method
and a seven-year recovery period. Each investor partner will be entitled to his
distributive share of a partnership's depreciation deductions, subject to the
general restrictions discussed in this prospectus.
Depletion. Except as discussed below, an investor partner may deduct
for percentage depletion with respect to each oil and gas property of a
partnership. General and limited partners must compute their own depletion
allowance and maintain records of the adjusted basis of property for depletion
and other purposes. While a partnership will furnish its general and limited
partners with information relating to this computation, these requirements may
impose an administrative burden on an investor partner.
Percentage depletion is calculated by the owner of an economic interest
in an oil or gas property, or a partner in a partnership (such as the
partnerships and the drilling programs) which holds such an economic interest as
an amount equal to 15% (and in the case of marginal production an additional 1%,
subject to a maximum increase of 10%, for each whole dollar by which $20 exceeds
the average domestic wellhead price for crude oil for the immediately preceding
fiscal year) of his gross income from the depletable property for the taxable
year. The percentage depletion deduction in respect of any property is limited,
however, to 100% of the taxable income of the owner, or partner, from the
property for each taxable year, computed without the depletion allowance. See
"--General Tax Provisions -- Alternative Minimum Tax."
Percentage depletion is generally available only with respect to
domestic oil and gas production of certain "independent producers," which, in
general, are persons not directly or indirectly involved in the retail sale of
oil, natural gas, or derivative products or the operation of a major refinery.
An independent producer may deduct percentage depletion only to the
extent his average daily production of domestic crude oil, or the natural gas
equivalent, does not exceed 1,000 barrels. This depletable amount may be
allocated between crude oil and natural gas production, with 6,000 cubic feet of
domestic natural gas production regarded as equivalent to one barrel of crude
oil. The 1,000 barrel limitation must be allocated among the independent
producer and controlled or related persons and family members in proportion to
the respective production by such persons during the period in question.
In addition to the foregoing limitation, the percentage depletion
deduction otherwise available is limited to 65% of the taxpayer's total taxable
income for the year. Any percentage depletion deduction disallowed because of
the 65% limitation may be deducted in the following taxable year if the
percentage depletion deduction for such year plus the deduction carryover does
not exceed 65% of the taxpayer's total taxable income for that year. The
carryover period resulting from the 65% net income limitation is indefinite.
All or a portion of any gain recognized on the disposition of a
depletable property or of interests may be taxed as ordinary income to the
extent of recapture of depletion deductions, except for percentage depletion
deductions in excess of the basis of the property. See "-- Special Features of
Oil and Gas Taxation -- Sale of Property" and "-- Special Features of Oil and
Gas Taxation -- Sale of interests."
Because depletion will be computed separately by each investor partner
and not at the partnership level, no assurance can be given, and counsel to the
managing partner is unable to express any opinion, as to the availability or
extent of percentage depletion deductions to the general and limited partners.
Each prospective investor partner should consult his personal tax advisor to
determine whether percentage depletion would be available to him.
Passive Activity Loss Limitations. Generally, a taxpayer can deduct
losses from "passive activities" only against income from passive activities and
can utilize passive activity tax credits only to offset the tax attributable to
passive activity income. The taxpayer cannot use passive activity losses to
offset personal earnings, active business income, or investment or portfolio
income, such as interest, dividends, royalties, or gains from the sale of
assets that generate investment or portfolio income, and cannot reduce his tax
liability attributable to those items with passive activity credits.
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A passive activity is generally defined as any activity that involves
the conduct of a trade or business in which the taxpayer does not materially
participate. Ownership of limited partner interests will be a passive activity
and a limited partner will be subject to the passive activity loss limitations
with respect to his share of partnership losses and deductions. Consequently, a
limited partner's share of partnership losses and deductions may be deducted
only to the extent of his share of partnership income and any income from other
passive activities. Passive activity losses that may not be utilized because of
the passive activity loss limitations may be carried forward to offset passive
activity income in subsequent years.
Interest income, including interest from any production payments
treated as loans for federal income tax purposes and interest from the
investment of a partnership's working capital or other funds, and royalty
income are treated as portfolio income under the passive activity rules and are
not considered to be income from a passive activity. The Treasury Department
also has the authority to prescribe regulations "requiring net income or gain
from a limited partnership or other passive activity to be treated as not from a
passive activity." No such regulations have been issued to date, and the
Treasury Department has indicated that any subsequent regulations on this
subject would be prospective only. No assurance can be given, however, that
subsequent regulations will not retroactively characterize various items of
partnership income as non-passive.
When a limited partnership disposes of an activity, the limited
partners can deduct their suspended passive activity losses attributable to that
activity. Although unclear, each oil or gas property may constitute a separate
activity for purposes of the passive activity rules. Assuming that each oil or
gas property is a separate activity, whenever a partnership sells an oil or gas
property to an unrelated party or abandons it, each limited partner in that
partnership will then be able to deduct any suspended passive activity losses
attributable to that property. If a partnership disposes of only part of its
interest in a property, however, limited partners will be able to offset only
their suspended passive activity losses attributable to that property against
the gain on the disposition. Any remaining suspended passive activity losses
will remain suspended. Notwithstanding whether an oil and gas property is a
separate activity, when a limited partner sells all his interests, and has no
further interest in the partnership, he will be able to deduct all his
suspended passive activity losses attributable to that partnership.
A taxpayer's interest in an oil or gas well drilled or operated
pursuant to a working interest does not constitute a passive activity so long as
the taxpayer owns the working interest directly or through an entity that does
not limit the taxpayer's liability with respect to such drilling or operation.
In general, an entity will be considered to limit the liability of the taxpayer
with respect to the drilling or operation of a well only if, under applicable
state law, the taxpayer's potential liability is limited to a determinable fixed
amount. Indemnification agreements, insurance, stop loss arrangements, or other
similar arrangements are not taken into account in determining whether a
taxpayer holds a working interest through an entity that limits the taxpayer's
liability. Counsel to the managing partner is of the opinion that the passive
activity loss limitations will not apply to general partners in a partnership,
prior to any conversion of their general partner interests to limited partner
interests, to the extent that the partnership drills or operates wells pursuant
to working interests. Consequently, each general partner should be entitled to
deduct currently his share of intangible drilling costs and other deductible
expenses allocable to the drilling or operation of wells pursuant to working
interests without regard to the passive activity loss limitations, but subject
to the basis and at risk limitations discussed below. A general partner's share
of partnership income will be non-passive income, however, that may not be
offset by losses from any passive activities. As discussed below, this rule
continues to apply to income attributable to a general partner's interests that
have been converted. The exception for working interests would not be applicable
to any operations of a partnership other than the drilling and operation of
wells pursuant to working interests. Therefore, if a partnership acquires an
interest or participates in other activities, such activities will be treated as
passive activities to the general partners of that partnership and any losses
derived by those general partners with respect to such activities will be
passive activity losses allowable only to the extent discussed above.
It should be noted that if a general partner is an S corporation, a
limited partnership, a limited liability company, or a trust, the working
interest exception will not apply to the shareholders, limited partners, or
beneficiaries thereof because that form of ownership limits the liability of the
ultimate owners.
As discussed under "Terms of the Offering -- Conversion of General
Partner Interests," the general partner interests in a partnership may be
converted to limited partner interests following the completion of the
partnership's
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drilling activities. So long as such conversion does not occur until that time,
the interests of the general partners will not be treated as a passive activity
during the drilling period. If, however, a general partner claims any loss that
is treated as an active loss under the working interest exception, any net
income in succeeding taxable years attributable to the working interest, and
any other properties the value of which is enhanced by drilling, logging,
seismic testing, or other activities any part of the costs of which were borne
by the taxpayer as a result of owning such working interest, will be treated as
active income. Thus, if a partnership incurs net losses during its initial
taxable years, any subsequent net income from the partnership will generally be
treated as active income to an investor partner who acquires general partner
interests even after those interests have been converted to limited partner
interests.
If the general partners of a partnership deduct losses under the
working interest exception and their interests are then converted to limited
partner interests during a taxable year, deductions with respect to net loss
wells that are incurred in the year of conversion but after the date of the
conversion are considered passive activity deductions, even if the converted
partners have net income for the taxable year. If the general partner interests
in a partnership are converted to limited partner interests during a taxable
year, this rule may increase both the active income and the passive loss
allocable for such year to the general and limited partners holding those
interests. If the conversion occurs at the beginning of a taxable year, any net
losses of the converted partners for such year will be passive.
The passive activity rules do not apply to corporations, other than S
corporations, personal service corporations, and closely held C corporations. A
closely held C corporation is a corporation in which not more than five
individuals own, directly or indirectly, more than 50% of the value of the
outstanding stock during the last half of the year. An additional exception from
the passive activity rules applies to closely held C corporations that are not
personal service corporations. Such closely held C corporations may deduct
passive activity losses against all of their income except portfolio income.
A special provision of the passive activity rules applies to publicly
traded partnerships. If this special provision were to apply to a partnership,
additional limitations would apply, the most significant of which is that a
limited partner could only deduct his share of partnership losses and deductions
against his share of passive activity income from the partnership. The
definition of "publicly traded partnership" for purposes of this special
provision is the same as the definition of "publicly traded partnership" in
section 7704 of the Internal Revenue Code, except that this special provision
does not include the 90% gross income exception. See "Tax Aspects -- Partnership
Taxation --Partnership Classification." Based on representations of the managing
partner concerning the anticipated lack of public trading or public markets for
the interests, counsel to the managing partner is of the opinion that the
partnership will not be treated as "publicly traded partnership" for purposes of
the application of the passive activity loss limitations.
Limitations on Interest Deductions. Generally, a taxpayer may deduct
"investment interest" only to the extent of his "net investment income." The
taxpayer may carry forward any unused investment interest to later years when he
has additional net investment income. Investment interest is interest paid on
debt incurred or continued to acquire or carry property held for investment. Net
investment income includes gross income and gains from property held for
investment reduced by any expenses directly connected with the production of
such income and gains. To the extent that interest is attributable to a passive
activity, it is treated as a passive activity deduction and is subject to
limitation under the passive activity rules and not under the investment
interest limitation rules.
Consequently, if a general partner borrows money to purchase interests,
the investment interest limitation may apply to the interest on the debt. In
addition, a general partner's share of partnership income and losses will be
considered investment income and losses for purposes of the investment interest
limitation, and his share of partnership losses will therefore reduce his net
investment income and may affect the deductibility of his other investment
interest, whether or not he borrows to purchase interests.
Interest expense on debt used by a taxpayer to purchase or carry an
interest in a passive activity will be taken into account in computing the
taxpayer's income or loss from the passive activity. There are detailed tracing
and allocation rules with respect to the allocation of interest expense to
specific expenditures. As a result, the deductibility of interest expense by a
limited partner will depend upon such limited partner's personal tax situation.
Potential investors who contemplate using borrowed funds to purchase limited
partner interests are urged to consult
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with their tax advisors with respect to the application and interaction of the
investment interest and passive activity limitations.
It is unclear at present whether, after any conversion of the general
partner interests in a partnership to limited partner interests, interest on
debt incurred by a general partner to purchase his interests will be treated as
investment interest or will be taken into account in computing such partner's
income or loss as a limited partner.
Interest on indebtedness incurred or continued to purchase or carry
tax-exempt securities is not deductible. Investors who currently own or
anticipate acquiring tax-exempt securities and contemplate purchasing interests
with borrowed funds are urged to consult their tax advisors.
Because the deductibility of any interest expense by an investor
partner will depend on such investor partner's personal tax situation, counsel
to the managing partner is unable to express any opinion regarding the federal
income tax treatment of interest expense on indebtedness incurred by an investor
partner to acquire his interests.
For Profit Limitation. In addition to the passive activity limitations
discussed above, an individual who engages in an activity without the intent to
make an economic profit therefrom aside from federal income tax benefits may not
take deductions attributable to such activity in excess of the gross income he
derives from the activity, except for deductions allowable without regard to
profit motive. Thus, in any taxable year in which the deductions of a
partnership exceed its gross income, any investor partner who invested in the
partnership without the requisite economic profit motive may be unable to deduct
substantially all of his distributive share of such excess.
Basis and At Risk Limitations. A partner may not deduct in any year any
amount attributable to his share of partnership losses, if any, which is in
excess of his adjusted tax basis in his interest in the partnership at the end
of the partnership tax year. An investor partner's initial adjusted tax basis in
his interest in a partnership will equal his cash contributions to the
partnership. It will be increased by any additional cash contributions when
made, by his distributive share of partnership income and gain and by his share
of certain borrowings of the partnership. It will be decreased, but not below
zero, by distributions from the partnership, his distributive share of
partnership losses, depletion deductions on his share of partnership oil and gas
income and any decrease in his share of borrowings of the partnership. Decreases
in an investor partner's share of liabilities that have given rise to a basis
increase will be treated as distributions of cash and, thus, will reduce basis.
In addition to the limitation of losses to an investor partner's
adjusted tax basis, losses allocable to such investor partner in excess of
allocable income during a taxable year may be deducted only to the extent of the
amount with respect to which such investor partner is "at risk" at the close of
the taxable year. An investor partner will be at risk as to the amount of money
contributed, assuming such investor partner uses his personal funds to make such
contribution or borrows the funds on a recourse basis from a lender unrelated to
the partnership, and amounts borrowed for use in the partnership for which the
investor partner is personally liable. The at risk amount will be increased by
such investor partner's share of partnership income and gains and the amount by
which such investor partner's percentage depletion deductions with respect to
partnership property exceed such investor partner's share of the basis of such
property. An investor partner will not be at risk with respect to amounts
protected against loss through nonrecourse financings, guarantees, stop loss
agreements, or "other similar arrangements" (which would include the managing
partner's indemnification obligation to general partners for liabilities in
excess of their capital contributions) or with respect to amounts borrowed from
other parties having an interest in the partnership, family members or other
related parties. The at risk amount is reduced by the amount of the allowable
losses for the taxable year, the amount of distributions made to the investor
partner and such investor partner's depletion deductions, and the reduced amount
determines the extent to which losses sustained in future years will be
deductible. Any loss disallowed as a result of the application of the at risk
provisions may be deducted in future years to the extent the taxpayer increases
his amount at risk. Losses deducted in a year are subject to recapture in a
later year at ordinary income rates in the event, and to the extent, a
taxpayer's adjusted amount at risk falls below zero.
The at risk limitation applies on an activity-by-activity basis, and in
the case of oil and gas properties, each property is treated as a separate
activity. Thus, an investor's interest in each oil or gas property is treated
separately so that a loss from any one property is limited to the at risk amount
for that property and not the at risk amount for all
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the investor's oil and gas properties. It is uncertain how this rule is
implemented in the case of multiple oil and gas properties owned by a single
partnership. However, for taxable years ending on or before the date on which
further guidance is published, the IRS will permit aggregation of properties
owned by a partnership in computing a partner's at risk limitation with respect
to such partnership. If an investor partner must compute his at risk amount
separately with respect to each property owned by the partnership, he may not be
allowed to utilize his share of losses or deductions attributable to a
particular property even though he has a positive at risk amount with respect to
the partnership as a whole.
Sale of Property. When a partnership sells property, it will recognize
gain to the extent that the amount realized on the sale exceeds its basis in the
property and will recognize loss to the extent that its basis exceeds the amount
realized. In the case of a sale of an oil or gas property, each investor partner
will compute his gain or loss individually based on his share of the amount
realized, as allocated to him pursuant to the partnership agreement and the
drilling program agreement, and his share of the basis in such property. The
amount realized will include the amount of money received and the fair market
value of any other property received. If the purchaser assumes a liability in
connection with the sale or takes the property subject to a liability, the
amount realized will include the amount of such liability.
If gain is recognized on such sale, the portion of the gain that is
treated as recapture of intangible drilling cost, depletion, or depreciation
deductions will be treated as ordinary income and the remainder generally will
constitute "Section 1231 gain." If loss is recognized on such sale, such loss
generally will constitute "Section 1231 loss."
Each investor partner will be required to report his share of the
portion of the gain that constitutes recapture as ordinary income and must also
take into account his share of the Section 1231 gains and losses along with his
Section 1231 gains and losses from other sources. The characterization of the
investor partner's share of the Section 1231 gains and Section 1231 losses
attributable to partnership properties as either ordinary or capital will depend
on the total amount of the investor partner's Section 1231 gains and the total
amount of his Section 1231 losses from all sources for the year. Generally, if
the total amount of the gains exceeds the total amount of the losses, all such
gains and losses will be treated as capital gains and losses, and if the total
amount of the losses exceeds the total amount of the gains, all such gains and
losses will be treated as ordinary income and losses. An investor partner's net
Section 1231 gains, however, will be treated as ordinary income to the extent of
the investor partner's net Section 1231 losses during the immediately preceding
five years, reduced by the Section 1231 losses previously recaptured under this
rule.
Termination of a Partnership. When a partnership is terminated, each
investor partner in that partnership will be taxable, in the taxable year in
which the termination occurs, on his share of partnership income, gain, loss,
and deduction arising prior to the date of termination. General and limited
partners must also take into account their shares of gains or losses resulting
from the sale or other disposition of partnership assets in liquidation of the
partnership.
Upon the termination of a partnership, each investor partner in the
partnership will be required to recognize gain to the extent that the amount of
money distributed to him exceeds the basis of his interests or his amount at
risk with respect to the partnership. See "Tax Aspects -- Special Features of
Oil & Gas Taxation --Basis and At Risk Limitations." An investor partner will
recognize no loss unless he receives only money, unrealized receivables, and
inventory. In such a case, the investor partner could recognize loss to the
extent that the basis of his interests exceeds the aggregate of the money and
the partnership basis of the property received. If, however, an investor partner
receives more or less than his share of ordinary income items, including
potential recapture of intangible drilling cost, depletion, and depreciation
deductions, the investor partner will be required to recognize ordinary income
or loss to that extent.
An investor partner's basis in any distributed property will be equal
to the basis of his interests, reduced by any money received. The investor
partner's basis will first be allocated to ordinary income assets in an amount
equal to the partnership basis in such assets, which generally will be zero.
Any remaining basis will be allocated, in general, to other properties to the
extent of the partnership's basis in those properties subject to reallocation
among properties designed to reduce basis - value disparities to the extent
possible. Thus, basis increases are allocated
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to properties with unrealized appreciation and basis decreases are allocated to
properties with unrealized depreciation. Any basis adjustment remaining after
the partnership's basis has been fully carried over and reallocated is first
allocated among those properties with unrealized appreciation to the full extent
of each property's unrealized appreciation. To the extent that the increase is
not fully allocated at this point, it is allocated in proportion to the
properties' respective fair market values.
Sale of Interests. When an investor partner sells an interest,
including pursuant to the right of presentment, he will recognize gain or loss
measured by the difference between the amount realized on the sale and his basis
in the interest sold. The investor partner's amount realized will be the selling
price plus his share of any liabilities that increased his basis in such
interest. For a discussion of the computation of the tax basis in interests, see
"Tax Aspects -- Special Features of Oil & Gas Taxation -- Basis and At Risk
Limitations."
To the extent that the portion of the amount realized attributable to
ordinary income items, including potential recapture of intangible drilling
cost, depletion, and depreciation deductions) exceeds the portion of the basis
allocable to such items, which generally will be zero, the gain will be
ordinary income. Therefore, a substantial portion of any gain realized upon the
sale of interests may constitute ordinary income. So long as the investor
partner holds his interests as a capital asset, generally, an asset held as an
investment, the remainder of the gain will be capital gain and any loss will be
capital loss. The investor partner will be required to recognize the full amount
of the ordinary income portion even if it exceeds the overall gain on the sale
(in which event the investor partner will also recognize capital loss to the
extent the ordinary income exceeds the overall gain) or there is an overall loss
on the sale (in which event the investor partner will recognize an offsetting
capital loss equal to the ordinary income portion and an additional capital loss
equal to the overall loss on the sale). Gain or loss realized by a general
partner upon the sale of interests will generally constitute active income or
loss, while gain or loss realized by a limited partner upon such a sale will
constitute passive income or loss, which passive loss may be used to offset
active income only upon a complete disposition of interests, except in
circumstances where a limited partner has received his interest in a conversion.
See "Tax Aspects -- Special Features of Oil & Gas Taxation -- Passive Activity
Loss Limitations."
Net capital gains of individual taxpayers currently are taxed at a
minimum statutory rate (generally 20% for capital assets held for more than 12
months) which is less than the maximum statutory rate applicable to other income
(39.6%). Net capital gains means the excess of net long-term capital gain over
net short-term capital loss.
Generally, the sale of an interest in a partnership has no effect on
the partnership's basis in its assets. If, however, the partnership has made an
election under Section 754 of the Internal Revenue Code, the partnership's basis
in its assets is adjusted for the benefit of the purchase to reflect the gain or
loss realized by a partner upon the sale of an interest in the partnership. As a
result of the tax accounting complexities inherent in, and the substantial
expense attendant to, the election to adjust the tax basis of partnership
property upon sales of interests, the managing partner does not currently intend
to make this election on behalf of either partnership. Under the partnership
agreement, such election may be made only with the consent of the managing
partner. The absence of any such election and of the power to compel the making
of such an election may reduce the value of interests to a potential transferee
and may be an additional impediment to the transferability of interests.
An investor partner who sells interests must notify that partnership of
the transaction and must attach a statement to his federal income tax return
reciting certain facts regarding the sale. Such notice must be given in writing
within 30 days of the sale, or, if earlier, by January 15 of the year following
the year in which the sale occurs, and must include the names and addresses of
the buyer and seller, the taxpayer identification numbers of the buyer and
seller, if known, and the date of the sale. An investor partner who fails to
furnish the relevant information to the partnership may be penalized $50 for
each such failure, unless it is shown that such failure was due to reasonable
cause and not willful neglect. In addition, the partnership will be required to
notify the IRS of any sale of an interest of which it has notice or knowledge
and to report the names, addresses, and taxpayer identification numbers of the
buyer and seller, along with other required information. The partnership is also
required to provide copies of the information it provides to the IRS to the
buyer and seller.
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Section 1060 of the Internal Revenue Code may also require both the
buyer and seller of an interest to file statements with their federal income tax
returns stating their agreement, if any, concerning the allocation of the
purchase price among assets.
Farmouts and Backin Interests. One of the various ways in which a
partnership, through the drilling program, may acquire an oil and gas lease is
through a farmout, discussed above under "Proposed Activities --Farmouts." Some
farmouts may be characterized for tax purposes as partnerships entered into by
the related drilling program and the other party to the farmout. The manner in
which the parties to these farmouts agree to allocate income, gain, loss,
deduction, and credit, or any item of income, gain, loss, deduction and for
credit, may be disallowed under Section 704 of the Internal Revenue Code. See
"-- Partnership Taxation --Allocations." If the farmout creates a co-ownership
arrangement, the drilling program may be required to capitalize a portion of the
intangible drilling costs paid in excess of its fractional share of the working
interest acquired pursuant to the agreement. If the farmout creates an
arrangement that is classified as an association taxable as a corporation for
federal income tax purposes, the tax benefits of investing in that partnership
would be adversely affected, or eliminated See -- "Partnership Taxation --
Partnership Classification." One type of farmout in which a drilling program
might be involved is a transaction in which, in exchange for the drilling of a
well on a particular drill site, the drilling party becomes entitled to an
assignment of 100% of the leasehold interest in the drill site acreage, until
such time as his or its drilling, completion and production costs are recovered
out of production therefrom, with a lesser percentage thereafter, and a lesser
fractional interest in the portion of the tract exclusive of the drill site
acreage. The IRS has ruled, in Revenue Ruling 77-176, 1977-1 C.B. 77, that any
transfer of rights in property other than the drill site acreage in this type of
transaction would be deemed a sale of such other property by the party
transferring the property on which gain or loss is realized. The IRS further
ruled that, while the party receiving the acreage and incurring the cost of
drilling the well on the drill site may elect to deduct such costs as intangible
drilling and development costs, such party would realize ordinary income equal
to the value of the acreage earned exclusive of the drill site acreage.
The managing partner will attempt to structure any farmout or similar
transaction in a way which either eliminates or minimizes to the fullest extent
possible the tax consequences set forth in this ruling and the other adverse tax
consequences described above. Nonetheless, the ruling may have adverse tax
implications for a drilling program and the related partnership if and when a
drilling program enters into such farmouts, since such drilling program may
recognize gain or loss upon the transfer or receipt of an interest in the
property.
GENERAL TAX PROVISIONS
Following is a brief summary of some additional federal income tax laws which
may impact upon an investor partner.
OTHER TAX CONSEQUENCES
Alternative Minimum Tax. The individual alternative minimum tax is
imposed at graduated rates of 26% and 28% on "alternative minimum taxable
income" in excess of exemption amounts. The tax thus computed is reduced by the
taxpayer's regular tax liability.
Alternative minimum taxable income is computed by increasing regular
taxable income by tax preference items and recomputing certain items. For an
individual taxpayer, adjustments include such items as the difference between
accelerated depreciation deductions and depreciation deductions under the
alternative system of Section 168(g) of the Internal Revenue Code using the 150
percent declining balance method with respect to tangible personal property and
the straight-line method with respect to real property.
The passive activity limitations also apply for purposes of computing
alternative minimum taxable income, although tax preference items taken into
account for purposes of the passive activity rules are not taken into account in
computing alternative minimum taxable income.
Corporations are subject to an alternative minimum tax of 20% of
alternative minimum taxable income to the extent that such amount exceeds the
greater of (a) the corporation's federal income tax liability or (b) certain
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exemption amounts. Corporate items of tax preference include items similar to
those described above for individuals, and a number of additional items.
Because an investor partner's liability for the alternative minimum tax
is computed by taking into account his regular income tax liability, the extent
to which any tax preference items directly or indirectly resulting from an
investment in interests would be subject to the alternative minimum tax will
depend on the facts of his particular situation. For a taxpayer with substantial
tax preference items, the alternative minimum tax could reduce the after-tax
economic benefit of his investment in interests. Each potential investor should
consult his tax advisor concerning the impact of the alternative minimum tax on
his investment in interests.
Tax Shelter Registration. An organizer of a "tax shelter" must register
the tax shelter with the Secretary of the Treasury and obtain an identification
number which must be included on the tax returns of investors in the shelter.
Any person who organizes any "potentially abusive tax shelter" must maintain
lists of investors therein and make such information available to the Secretary
of the Treasury upon request.
In view of the expansive definition of the term "tax shelter" under
temporary regulations, the tax shelter registration provisions could be
interpreted to apply to the partnerships. The managing partner will apply for
and obtain a tax shelter registration number with respect to each partnership.
The registration number of a partnership will be furnished to its general and
limited partners, who must include the number on their tax returns for any year
in which any deduction, loss, credit, other tax benefit or any income
attributable to the partnership is claimed or reported, and must furnish the
number to any transferee of their interests, together with other required
information. The managing partner also must maintain lists of investors in the
partnerships and make such lists available to the IRS on request.
ISSUANCE OF A REGISTRATION NUMBER DOES NOT INDICATE THAT THIS
INVESTMENT OR THE CLAIMED TAX BENEFITS HAVE BEEN REVIEWED, EXAMINED OR APPROVED
BY THE INTERNAL REVENUE SERVICE.
Changes in Federal Income Tax Laws. Significant and fundamental changes
in the nation's federal income tax laws have been made in recent years and
additional changes are likely. Any such change may affect the partnerships and
the general and limited partners. Moreover, judicial decisions, regulations or
administrative pronouncements could unfavorably affect the tax consequences of
an investment in a partnership. See "Tax Aspects -- Other Tax Consequences --
Changes in Federal Income Tax Laws."
Compliance Provisions. Taxpayers are subject to several penalties and
other provisions which encourage compliance with the federal income tax laws,
including an addition to tax of 20% of a "substantial understatement" of federal
income tax. This addition is imposed if an understatement of tax exceeds the
greater of (a) 10% of the tax required to be shown on the return or (b) $5,000
($10,000 for a corporation other than an S corporation or a personal holding
company).
Except in the case of understatements attributable to "tax shelter"
items, an item of understatement will not give rise to the penalty if (a) there
is or was "substantial authority" for the taxpayer's treatment of the item or
(b) all facts relevant to the tax treatment of the item are disclosed on the
return or on a statement attached to the return. In the case of partnerships,
the disclosure is to be made on the return of the partnership. However, an
individual partner may make adequate disclosure with respect to partnership
items if specific conditions are met.
In the case of understatements attributable to "tax shelter" items, the
substantial understatement penalty may be avoided only if the taxpayer
establishes that, in addition to having substantial authority for his position,
he reasonably believed the treatment claimed was more likely than not the proper
treatment of the item. A "tax shelter" item is one that arises from a
partnership, or other form of investment, a significant purpose of which is
the avoidance or evasion of federal income tax. An entity should not be
considered to have a significant purpose of avoidance or evasion of federal
income tax merely because it avails itself of percentage depletion allowances,
intangible drilling cost deductions, or certain other deductions. The managing
partner does not believe that tax avoidance is a significant purpose of either
partnership and does not anticipate that these provisions would apply to any
understatement attributable to the disallowance of a partnership item. Investors
are cautioned, however, to consult their tax advisors with respect to the
possible application of the substantial understatement penalty.
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Consistency Requirements. General and limited partners must generally
treat partnership items on their federal income tax returns consistently with
the treatment of such items on the partnership information return, unless an
investor partner files a statement with the IRS identifying the inconsistency or
otherwise satisfies the requirements for waiver of the consistency requirement.
Failure to satisfy this requirement will result in an adjustment to conform the
investor partner's treatment of the item with the treatment of the item on the
partnership return. Intentional or negligent disregard of the consistency
requirement may subject an investor partner to substantial penalties.
Nominees. A person who holds a partnership interest as a nominee for
another person must furnish to the partnership the name and address of the
beneficial owner, along with any other information prescribed by form or
regulations. A notice issued by the IRS requires the nominee to furnish to the
partnership the nominee's name, address, and taxpayer identification number, the
taxpayer identification number of the beneficial owner and information
concerning the partnership interests held, acquired, and disposed of by the
nominee on behalf of others during the partnership taxable year. The nominee
also must provide certain information to the beneficial owner of the interest,
and the partnership must furnish certain information to the nominee. Regulations
to be issued may impose additional requirements. Any prospective investor who is
acting as a nominee for another person should consult his tax advisor regarding
these requirements.
Social Security Benefits; Self-Employment Tax. A general partner's
share of any income or loss attributable to interests will constitute "net
earnings from self-employment" for both social security and self-employment tax
purposes, while a limited partner's share of such items will not constitute net
earnings from self-employment. Thus, no quarters of coverage or increased
benefits under the Social Security Act will be earned by limited partners. If a
general partner is receiving Social Security benefits, his taxable income
attributable to his investment in interests may be taken into account in
determining any reduction in benefits because of "excess earnings."
Investment by Tax-Exempt Entities. Net income derived from the conduct
of a trade or business regularly carried on by many tax-exempt entities,
including charitable or other exempt organizations, pension, profit-sharing or
stock bonus plans, Keogh plans, IRAs, and other employee benefit plans, may
constitute unrelated business taxable income on which federal income tax is
imposed. Unrelated business taxable income in excess of $1,000 of a tax-exempt
entity which is a corporation is generally taxed at marginal corporate rates.
Where the tax-exempt entity is a trust, unrelated business taxable income in
excess of $1,000 is taxed at marginal trust rates. Ownership of a working or
operating interest in oil or gas properties has been held to constitute income
derived from the conduct of a trade or business, even where an unrelated third
party is hired to operate the property and ownership is in the form of a
partnership. To the extent a partnership borrows funds to acquire or improve a
property or a tax-exempt entity borrows funds to acquire interests, a portion of
the income from such "debt financed property" may be unrelated business taxable
income even if otherwise excludable. For these reasons, it is expected that
substantially all the income of the partnerships will constitute unrelated
business taxable income. An otherwise tax-exempt investor partner may be
required to file a tax return even if such investor does not realize net taxable
income from a partnership exceeding $1,000.
Fiduciaries of pension, profit sharing or stock bonus plans, Keogh
plans, IRAs, other qualified employee benefit plans, and other plans or
arrangements subject to ERISA, or to Section 4975 of the Internal Revenue Code,
must determine whether an investment in interests will satisfy required
standards, including, among other things:
o the exclusive purpose rule of Section 404(a)(1)(A) of ERISA,
o the prudence requirements of Section 404(a)(1)(B) of ERISA,
o the diversification requirements of Section 404(a)(1)(C) of
ERISA, and
o the requirement of Section 404(a)(1)(D) of ERISA that the
investment be in accordance with the governing instrument of
the plan or arrangement.
A fiduciary of an employee benefit plan or other arrangement is
prohibited from engaging in certain transactions involving "plan assets" with
parties which are "parties in interest" under ERISA or "disqualified persons"
under the Internal Revenue Code. The United States Department of Labor has
issued final regulations defining
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"plan assets" for these purposes. Under certain circumstances, the final
regulations treat a portion of the underlying assets of an entity in which such
a plan or arrangement invests as assets of the plan or arrangement. These
regulations could apply to a partnership, unless the partnership satisfies one
of the exceptions set forth in such regulations. It is anticipated that each
partnership will qualify for the "publicly offered security" exception and that
the underlying assets of a partnership should not be considered "plan assets"
for purposes of these regulations. Such issue involves questions of fact,
however, and counsel to the managing partner is not rendering any opinion as to
whether interests will be considered "publicly offered securities" for purposes
of ERISA. Each prospective investor which is or may be subject to ERISA or to
Section 4975 of the Internal Revenue Code should consult with its advisors
concerning the effect of its ownership of interests under these rules.
State Law Tax Aspects. A partnership, through the related drilling
program, will operate in states and localities which impose taxes on the
partnership's assets or income or on each investor partner based upon his share
of any income derived from partnership activities in such jurisdictions.
Depending upon the location of the partnership's properties and applicable state
and local laws, deductions or credits available to an investor partner for
federal income tax purposes may not be available for state or local income tax
purposes.
It is anticipated that a significant portion of the partnerships'
activities will be in Texas, which imposes a franchise tax on corporations and
limited liability companies "doing business" in that state. General partners
which are corporations or limited liability companies not otherwise considered
to be doing business in Texas which invest through a partnership may be deemed
to be doing business in Texas for purposes of this tax.
To the extent a partnership operates in certain jurisdictions, estate
or inheritance taxes may be payable therein upon the death of an investor
partner. Therefore, an investor partner may be subject to income taxes, estate
or inheritance taxes or both in states or localities in which the partnership
does business as well as in his own state and domicile.
ANTICIPATED FEDERAL INCOME TAX DEDUCTIONS
The managing partner expects that approximately 75% to 85% of an
investor partner's capital contribution to a partnership will be deductible or
eligible for deduction for federal tax purposes either in the tax year in which
such capital contribution is made or in the subsequent tax year. Due to the
application of the passive activity loss limitations, the percentages of capital
contributions of limited partners that will be deductible will depend largely
upon each such limited partner's tax situation independent of his investment in
interests, and are thus impossible to estimate. These estimates are based upon
the managing partner's assumptions concerning the offering termination dates for
the partnerships and the managing partner's previous experience concerning the
deductibility of the costs of drilling and completing wells and current federal
income tax law. Further, the estimates are based upon a number of factual
assumptions, including an assumption that contracts calling for the expenditure
of a substantial portion of the capital of each partnership will be entered into
in such year and that such expenditures will meet applicable statutory and
judicial requirements for deductibility in that year. See "Risk Factors -- Tax
Risks -- Current Tax Deductions." ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT
THESE ESTIMATED PERCENTAGES OF CAPITAL CONTRIBUTIONS WILL BE DEDUCTIBLE OR
ELIGIBLE FOR DEDUCTIBILITY IN THE YEAR IN WHICH THE CAPITAL CONTRIBUTION IS
MADE.
INDIVIDUAL TAX ADVICE SHOULD BE SOUGHT
THE TAX CONSIDERATIONS ATTENDANT TO AN INVESTMENT IN A PARTNERSHIP ARE
COMPLEX AND VARY WITH INDIVIDUAL CIRCUMSTANCES. EACH PROSPECTIVE INVESTOR
PARTNER SHOULD REVIEW SUCH TAX CONSEQUENCES WITH HIS TAX ADVISOR.
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COMPETITION, MARKETS AND REGULATION
COMPETITION
There are a large number of companies and individuals engaged in
exploration for oil and gas and development of oil and gas properties.
Accordingly, the partnerships will encounter strong competition from independent
operators and major oil companies in acquiring oil and gas leases suitable for
development by the partnerships and the related drilling programs. Many of the
companies so engaged have financial resources and staffs considerably larger
than those available to the partnerships.
MARKETS FOR SALE OF PRODUCTION
The ability of a partnership to market oil and natural gas found and
produced, if any, will depend on numerous factors beyond the control of the
partnership, the effect of which factors cannot be accurately predicted or
anticipated. Some of these factors include, without limitation the availability
of other domestic and foreign production, the marketing of competitive fuels,
the proximity and capacity of pipelines, fluctuations in supply and demand, the
availability of a ready market, the effect of United States federal and state
regulation of production, refining, transportation and sales and general
national and worldwide economic conditions. At the present time worldwide oil
production capacity and gas production capacity in certain areas of the United
States exceed demand. This has resulted in a substantial decline in the price of
oil and natural gas in the United States. Although future levels of production
by members of OPEC or the degree to which oil prices will be affected thereby
cannot be predicted, it is possible that prices for any oil and gas produced
from a program well will be lower than those currently available. There is no
assurance that a partnership will be able to market any oil or natural gas
produced by it, or, if such oil or natural gas is marketed, that favorable
prices can be obtained by the partnership. See "Risk Factors -- General Risks
Relating to Oil and Natural Gas -- Dependence on Future Prices, Supply and
Demand for Oil and Gas."
The United States natural gas market has undergone several significant
changes over the past few years. The majority of federal price ceilings were
removed in 1985 and the remainder were lifted by the Natural Gas Wellhead
Decontrol Act of 1989. Thus for the first time in many years, the United States
natural gas market is operating in a free market environment in which the
contracts between the seller and buyer determine the price of gas.
At the same time, the domestic natural gas industry has also seen a
dramatic change in the manner in which gas is bought, sold, and transported.
Newly developed supplies of natural gas are, in most cases, no longer sold to a
pipeline company. Instead, the pipeline company now serves the role of
transporter primarily, and gas producers are free to sell their product to
marketers, local distribution companies, end users, or a combination thereof.
This process, which began with the issuance of the Federal Energy Regulatory
Commission ("FERC") open access transportation program, often known as Order No.
436, and culminated with the implementation of FERC Order No. 636 - the
restructuring rule, has greatly enhanced a producer's ability to avoid shut-ins
or curtailments because in the new gas environment, a producer now has a
multitude of buyers to choose from.
Recent trends indicate substantial improvement in the price received
for natural gas. Many analysts believe that the industry is finally experiencing
the combined effects of declining deliverability, reduced reserve replacement
and increased demand for natural gas as a fuel of choice. While this trend is
expected to continue, natural gas prices will still probably remain somewhat
seasonal in nature and, for this reason, it is particularly difficult to
estimate accurately future prices of gas, and any assumptions concerning future
prices may prove incorrect. See "Competition, Markets and Regulation".
The United States average daily production of oil declined from 9.0
million barrels in 1985 to approximately 6.4 million barrels in 1998. The
reduced production level is in part the result of decreased drilling activity in
the United States. Drilling activity is measured by the United States rig count.
The United States rig count hit an historical high in 1981 of over 4,500 rigs
and was 621 rigs as of the end of 1998. Another factor
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contributing to the reduction of United States oil production is the plugging
and abandoning of wells which are uneconomical due to the significant decrease
in the price of oil.
The United States import levels for oil have increased significantly
since 1985. In 1985, imports of foreign oil represented 27% of the United
States' demand. During the year 1998 imports averaged approximately 55% of the
United States' consumption.
In view of the many uncertainties affecting the supply and demand for
oil, gas, and refined petroleum products, the managing partner is unable to
predict future oil and gas prices or the overall effect, if any, that the
decline in demand for and the oversupply of such products will have on a
partnership.
REGULATION OF PRODUCTION
The production of oil and gas found by a drilling program, if any, will
be subject to United States federal and state laws and regulations, and orders
of regulatory bodies pursuant to such laws and regulations, governing a wide
variety of matters, including the drilling and spacing of wells on producing
acreage, allowable rates of production, marketing, prevention of waste and
pollution, and protection of the environment. Such laws, regulations, and orders
may restrict the rate of oil and gas production below the rate which would
otherwise exist in the absence of such laws, regulations, and orders, and may
restrict the number of wells which may be drilled on a particular oil and gas
lease.
NATURAL GAS PRICES
The Natural Gas Wellhead Decontrol Act of 1989 was enacted on July 26,
1989, and provides that all gas prices are decontrolled at the wellhead
effective January 1, 1993. Accordingly, sales of natural gas by a partnership
generally will not be subject to the maximum lawful price ceilings set by the
Natural Gas Policy Act of 1978, as amended. Thus, market conditions will
determine the prices that a partnership receives from the sale of natural gas
produced from program wells.
OIL AND LIQUID HYDROCARBON PRICE CONTROLS
There are currently no federal price controls on oil production, and
sales of oil, condensate, and natural gas liquids by a partnership can be made
at uncontrolled market prices. However, there can be no assurance that Congress
will not enact controls at any time.
State statutory provisions relating to oil and gas generally require
permits for the drilling of wells and also cover the spacing of wells, the
prevention of waste, the rate of production, the prevention and clean-up of
pollution, and other matters. For example, the Railroad Commission of Texas
determines the amount of gas producers can produce and purchasers can take from
oil and gas leases located within the State of Texas.
POSSIBLE LEGISLATION
Currently there are many legislative proposals pertaining to regulation
of the oil and gas industry, which proposals may directly or indirectly affect
the activities of a partnership. No prediction can be made as to what additional
energy legislation may be proposed, if any, nor which bills may be enacted nor
when any such bills, if enacted, would become effective.
REGULATION OF THE ENVIRONMENT
The exploration, development, and production of oil and gas is subject
to various federal and state laws and regulations to protect the environment.
Various states and governmental agencies are considering, and some have adopted,
other laws and regulations regarding environmental control which could adversely
affect the business of a partnership. Compliance with such legislation and
regulations, together with any penalties resulting from noncompliance therewith,
will increase the cost of oil and gas development and production. All or a
portion of these costs may ultimately be borne by a partnership.
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The preceding discussion of regulation of the oil and gas industry is
necessarily brief, and is not intended to constitute a complete discussion of
the various statutes, rules, regulations, or governmental orders to which the
partnerships' and the drilling programs' operations may be subject.
LIABILITY OF GENERAL AND LIMITED PARTNERS
GENERAL PARTNERS
By law, each general partner in a partnership is liable for all of the
liabilities and recourse obligations of the partnership. Accordingly, a single
general partner legally could be held responsible for the liabilities and
obligations of an entire partnership. Furthermore, under some circumstances,
joint working interest owners may be jointly and severally liable for
obligations arising in connection with the development and operation of the oil
and gas lease in which they jointly own an interest. See "Risk Factors --
Particular Risks Relating to the Interests -- Liability of Joint Working
Interest Owners." Because a partnership will own a working interest in leases in
which the participants in the drilling program, and likely others, own working
interests, the partnership, and therefore the general partners of that
partnership, could be liable for obligations of all such joint working interest
owners.
Pursuant to the terms of the partnership agreements, the general
partners and the managing partner of each partnership will agree that, as among
themselves, each general partner and the managing partner will be responsible
only to pay his pro rata share of that partnership's liabilities and
obligations, and will be entitled to contribution from other general partners
and the managing partner of a partnership if he incurs liability in excess of
his pro rata share. Furthermore, the managing partner will indemnify each
general partner of the partnership. The managing partner will undertake to
indemnify each general partner for any and all partnership-related obligations
and liabilities otherwise allocable to or paid by such general partner which are
in excess of such general partner's share of the partnership's undistributed
assets. However, such contribution rights and indemnity do not legally negate a
general partner's liability for a partnership's obligations, and a general
partner still could be subject to liability in excess of the amount of his
capital contribution if the managing partner should become bankrupt or for any
other reason are unable to meet the financial commitments of the indemnity. This
liability could result in the necessity for a general partner to make additional
payments to the partnership. Due to the uncertain nature of any such liability,
it is not possible to determine the amount of any such liability.
The managing partner will conduct the operations of each partnership in
a manner designed to reduce the risk that a general partner could be required to
make such additional payments. See "Insurance."
LIMITED PARTNERS
Under Delaware law, a limited partner is not liable for the obligations
of a limited partnership unless he is also a general partner or, in addition to
the exercise of his rights and powers as a limited partner, he participates in
the control of the partnership's business, and then only to persons who transact
business with the limited partnership reasonably believing, based upon the
limited partner's conduct, that the limited partner is a general partner.
Delaware law provides that certain acts, including the exercise of the right to
vote on matters specified in the partnership agreement, do not constitute
participation by a limited partner in the control of a limited partnership's
business. Assuming that a limited partner does not take part in the control of a
partnership's business and that he otherwise acts in conformity with the
provisions of the partnership agreement, his liability under Delaware law will
be limited, subject to possible exceptions, generally to the amount of capital
he has contributed to the partnership. Under Delaware law (i) a limited partner
is obligated to a partnership to perform any promise to contribute cash or
property or perform services, even if he is unable to perform because of death,
disability, or other reason, and such obligation may be enforced by a third
party creditor of the partnership and (ii) a limited partner may be liable to
the extent of prohibited distributions (as described below) made to the limited
partner, if he knew, at the time of the distribution, that it was prohibited. A
limited partner's liability for the return of any distribution terminates,
however, after the expiration of three years from the date of the distribution.
Under Delaware law, a limited partner may not receive a distribution from a
partnership to the extent that at the time of and after giving effect to the
distribution, all liabilities of the partnership, other than liabilities to
limited partners on account of their interests, exceed the fair value of the
partnership's assets. Under Delaware law, an assignee who becomes a substituted
limited partner of a partnership is
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liable for the obligation of his assignor to make capital contributions, except
that the assignee is not obligated for liabilities unknown to him at the time he
became a limited partner and that could not be ascertained from the partnership
agreement.
It is currently anticipated that the partnerships will conduct
substantially all of their business in the states of Texas, Oklahoma, Kansas and
New Mexico, where each partnership will register to do business as a foreign
limited partnership. A partnership may also be deemed to be conducting business
in various states, other than Texas, Oklahoma, Kansas and New Mexico, in which
the partnership acquires and operates properties. The applicability of state
laws to limited partners of a limited partnership such as a partnership in such
a situation and limitations of the liability of limited partners for the
obligations of the limited partnership have not been clearly established in many
jurisdictions. If it were determined that the right or exercise of the right by
the limited partners as a group to remove or replace the managing partner, to
make certain amendments to the partnership agreement, or to take other action
pursuant to the partnership agreement, constitute "control" of a partnership's
business for the purposes of the statutes of any relevant jurisdiction, a
limited partner might be held personally liable for a partnership's obligations
under the laws of such jurisdiction. Further, under the laws of certain
jurisdictions, a limited partner might be liable for other amounts, such as the
amount of any undistributed profits to which such limited partner is entitled,
with interest, or interest on the amount of capital contributions rightfully
returned to him. Maintenance of limited liability will require compliance with
legal requirements in such jurisdictions. The partnerships and the drilling
programs will operate in such a manner as its managing partner deems reasonable,
necessary and appropriate to preserve the limited liability of limited partners.
The following table summarizes the key differences in the treatment
afforded limited partners, general partners and the managing partner under
Delaware law.
- ----------------------------------------------------------------------------------------------------------------------
limited partners general partners managing partner
- ----------------------------------------------------------------------------------------------------------------------
General liability for all of the No Yes Yes
obligations of a partnership
- ----------------------------------------------------------------------------------------------------------------------
Limited liability for the Yes Yes Yes
obligations of a partnership to
the extent of capital
contributions
- ----------------------------------------------------------------------------------------------------------------------
Right to indemnification by us Not Applicable Yes Yes
for any amounts due in excess of
capital contributions to the
partnership
- ----------------------------------------------------------------------------------------------------------------------
Right to participate in the No No Yes
management and operations of (delegated
the partnership to managing
partner)
- ----------------------------------------------------------------------------------------------------------------------
Right to deduct intangible Yes (but limited to deductions Yes (not limited to Yes (not limited to
drilling costs against income from passive deductions against deductions against
activities) income from passive income from passive
activities but activities but
subject to "At subject to "At
Risk" and basis Risk" and basis
limitations) limitations)
- ----------------------------------------------------------------------------------------------------------------------
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SUMMARY OF PARTNERSHIP AGREEMENT AND DRILLING PROGRAM AGREEMENT
The following is a summary of the provisions of the partnership
agreements and the drilling program agreements. This summary is qualified in all
respects by reference to the full text of the Form of Partnership Agreement,
which appears as Exhibit A to this prospectus; and the Form of Drilling Program
Agreement, which appears as Exhibit B to this prospectus. Each prospective
purchaser is urged to review, and be advised with respect to the effect of, the
provisions of the partnership agreement and the drilling program agreement.
TERM
Each partnership will be organized under the Delaware Revised Uniform
Limited Partnership Act. Each drilling program will be a partnership for income
tax purposes only and, for all other purposes, is intended to be an agreement
among Mewbourne Oil Company, as drilling program manager, and the managing
partner and a partnership as joint owners or tenants-in-common of undivided
working interests in the drilling program's oil and gas properties. Each
partnership and the related drilling program will continue until terminated as
provided for in the partnership agreement and the drilling program agreement.
See "-- Dissolution, Liquidation and Termination" below.
RIGHTS AND POWERS OF PARTNERS
General and Limited Partners. Pursuant to the terms of the partnership
agreements, general and limited partners will have the following rights and
powers with respect to their respective partnership:
(a) to share all charges, credits, and distributions in
accordance with the partnership agreement and share all charges,
credits, and distributions of the related drilling program through the
partnership as discussed under "Participation in Costs and Revenues",
(b) to inspect at their expense books and records relating to
the activities of the partnership through the drilling program, upon
adequate notice and at all reasonable times, other than geophysical,
geological and other similar data and information and studies, maps,
evaluations, and reports derived therefrom which for a reasonable
period of time may be kept confidential because the managing partner
has agreed to keep such matters confidential or has determined in good
faith that such matters should be kept confidential considering the
interests of the partnership and each of its partners, and upon written
request at their expense to have a copy of a list of names and
addresses of all partners mailed to them,
(c) to have on demand true and full information of all
activities of the partnership, through the drilling program, and a
formal account of affairs whenever circumstances render it just and
reasonable,
(d) to have dissolution and winding up of the partnership by
decree of court as provided under Delaware law,
(e) to reconstitute the partnership with a new managing
partner upon the withdrawal or retirement of the managing partner from
the partnership, directly or as a result of a bankruptcy, dissolution,
or similar event that would dissolve the partnership, which causes the
dissolution of the partnership upon the election of a majority in
interest of the general and limited partners,
(f) to terminate any contract between the partnership and the
managing partner or any affiliate of the managing partner by a vote or
written consent of a majority in interest of the general and limited
partners, without penalty upon 60 days' written notice,
(g) to approve the sale of all or substantially all of the
assets of the partnership, except upon liquidation of the partnership,
by the affirmative vote of a majority in interest of the general and
limited partners, except in connection with a roll-up transaction which
requires the affirmative vote of at least 66% in interest of the
general and limited partners,
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(h) to dissolve the partnership at any time upon the election
of a majority in interest of the general and limited partners,
(i) to permit the assignment by the partnership or the
managing partner of their obligations under the drilling program
agreement, if such permission is required under the drilling program
agreement, by the affirmative vote of a majority in interest of the
general and limited partners,
(j) to agree to the termination or amendment, except for
certain conformatory amendments and amendments necessary to conform to
the Internal Revenue Code or that do not adversely affect the general
and limited partners, of the drilling program agreement or the waiver
of any rights of the partnership under the drilling program agreement
by the affirmative vote of a majority in interest of the general and
limited partners,
(k) to remove the managing partner and substitute a new
managing partner to operate and carry on the business of the
partnership or, to remove the drilling program manager and substitute a
successor to act in such capacity by the affirmative vote of a majority
in interest of the general and limited partners, and
(l) to propose and vote on certain matters affecting the
partnership as provided in the partnership agreement.
Limited Partners. Limited partners of a partnership will take no part
in the control of the business or affairs of the partnership or the related
drilling program and will have no voice in the management or operations of that
partnership or drilling program. This lack of management and control is
necessary to insulate the limited partners from liability in excess of their
investment in the partnership and their share of undistributed profits from the
partnership. See "Risk Factors -- Particular Risks Relating to the Interests --
Liability of Limited Partners" and "Liability of General and Limited Partners --
Limited Partners." Notwithstanding the foregoing, limited partners shall:
o have the rights described in paragraphs (a) through (l) under
the caption "general and limited partners" above, and
o have their liability for operations of the partnership and the
drilling program limited to the amount of their capital
contributions and to their shares of partnership capital and
undistributed net revenues of the partnership, if any;
provided, however, that under Delaware law the limited
partners may under certain circumstances be required to repay
the partnership amounts previously distributed to them by the
partnership if the partnership does not have sufficient other
assets to satisfy the claims of creditors.
General Partners. The general partners will delegate to the managing
partner the responsibility for the day-to-day operations of the partnerships. In
addition, the general partners will covenant not to exercise the following
rights granted to them under Delaware law:
o the right to withdraw from the partnership,
o the right to act as agent of the partnership or to execute
documents on behalf of the partnership, and
o the right to act other than together with other general
partners constituting a majority in interest of the general
and limited partners to cause the managing partner on behalf
of the partnership to convey partnership property or take any
other action binding on the partnership.
A general partner who violates such covenants is obligated to indemnify the
partnership and the other partners for any loss or liability caused by such
violation. Furthermore, in the event of a dissolution caused by a withdrawing
general partner, upon reconstitution of the partnership, the withdrawing general
partner shall remain subject as a general partner to any liabilities or
obligations of the partnership arising prior to such withdrawal. Upon withdrawal
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from the partnership, a general partner is entitled to continue to receive any
distributions to which he is otherwise entitled under the partnership agreement
for the period prior to his withdrawal; however, such general partner shall not
be entitled to receive the fair value of his interest in the partnership as of
the date of such withdrawal based upon his right to share in distributions from
the partnership, and neither the partnership nor the managing partner has any
obligation to repurchase any interest in the partnership from the withdrawing
general partner. The withdrawing general partner will no longer be entitled to
receive any distributions nor shall such general partner have any rights as an
investor partner under the partnership agreement. The sharing ratios will be
recalculated among the general and limited partners without regard to the
withdrawing general partner's capital contribution. See "-- Reconstitution of
the Partnership" below.
RIGHTS AND POWERS OF THE MANAGING PARTNER
The managing partner has full and exclusive power, except as limited by
the partnership agreement and applicable law, to manage, control, administer,
and operate the properties, business, and affairs of a partnership. The managing
partner has the authority to enter into a drilling program agreement on behalf
of a partnership. Under the drilling program agreements, Mewbourne Oil Company
as drilling program manager will have the power and authority to act on behalf
of a partnership with respect to the management, control, and administration of
the business and affairs of the related drilling program and the properties
subject to the drilling program agreement.
Under the partnership agreements, the managing partner is required to
devote only such time and effort to the business of the partnership as may be
necessary to promote adequately the interests of that partnership and the mutual
interests of the partners. The managing partner is permitted to engage in any
other business ventures, including the ownership and management of oil and gas
properties and the organization and management of other drilling programs. See
"Conflicts of Interest."
INDEMNIFICATION OF THE MANAGING PARTNER AND ITS AFFILIATES
The partnership agreements provides that neither the managing partner
nor any of its affiliates shall be liable to a partnership or the general and
limited partners for any loss suffered by the partnership which arises out of
any action or inaction performed or omitted by the managing partner or such
affiliate, if the managing partner in good faith has determined, as of the time
of the conduct or omission, that the course of conduct or omission was in the
best interest of the partnership, the managing partner or such affiliate was
acting on behalf of or performing services for the partnership, and that such
conduct or omission did not constitute negligence or misconduct. The drilling
program manager and its affiliates, under the drilling program agreement, have
similar liability.
The partnership agreements also provide that the managing partner and
its affiliates shall be indemnified by a partnership, only from the tangible net
assets of the partnership and not from other assets of the partners, from and
against all losses, judgments, liabilities, expenses, and settlements sustained
by them in connection with acts performed or omitted by the managing partner or
affiliates acting on behalf of or performing services for that partnership or
the related drilling program; provided that, unless otherwise ordered by a
court, the managing partner has determined in good faith, as of time of the
conduct or omission, that the course of conduct or omission was in the best
interests of the partnership and that the conduct or omission did not constitute
negligence or misconduct. Each partnership is authorized to purchase insurance
against liabilities asserted against and expenses incurred by such persons in
connection with the partnership's activities, provided that the partnership will
not bear the cost of that portion of any insurance, other than insurance
customary for the partnership's business, which insures the managing partner for
any liability for which the managing partner may not be indemnified as discussed
above. The drilling program manager has similar rights with respect to
insurance, and the drilling program manager and its affiliates are entitled to
similar indemnification under the drilling program agreement.
The partnership agreements further limit indemnification of the
managing partner by providing that the managing partner, its affiliates and any
person acting as a broker-dealer will not be indemnified for any losses,
liabilities or expenses arising from or out of a violation of federal or state
securities laws unless:
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o there has been a successful adjudication on the merits of each
count involving alleged securities law violations as to the
particular indemnitee and the court approves indemnification
of the litigation costs,
o such claims have been dismissed with prejudice on the merits
by a court of competent jurisdiction as to the particular
indemnitee and the court approves indemnification of the
litigation costs, or
o a court of competent jurisdiction approves a settlement of the
claims against a particular indemnitee and finds that
indemnification of the settlement and related costs should be
made.
Insofar as indemnification for liabilities under the Securities Act of
1933 may be permitted to the managing partner by a partnership agreement, the
partnership has been advised that in the opinion of the Securities and Exchange
Commission and certain state securities authorities such indemnification is
against public policy as expressed in the Securities Act of 1933, and is
therefore unenforceable.
RIGHT OF PRESENTMENT
Each investor partner in a partnership may request that the managing
partner purchase for cash all, but not less than all, of that investor partner's
interests subject to certain limitations. The managing partner may also cause
its affiliate to fulfill its obligation to purchase such investor's interests.
Partners in a partnership formed in 1999 may make such requests in each of the
years 2003 through 2008 and partners in a partnership formed in 2000 may make
such request in each of the years 2004 through 2008. If the interests are
subsequently listed on a national securities exchange or are traded through the
National Association of Securities Dealer's Automated Quotation System or in the
over-the-counter market, the right of presentment may be terminated at the
option of the managing partner. Any such listing could have an adverse effect on
the tax consequences of an investment in interests. See "Tax Aspects
- -Classification of a Partnership for Tax Purposes" and "Tax Aspects - General
Features of Partnership Taxation -Passive Activity Loss Limitations." If the
obligation of the managing partner or its purchaser designee to purchase
interests from general and limited partners is determined to violate any
existing or future laws, such obligation will be eliminated or modified
appropriately. See "Terms of the Offering -- Right of Presentment."
ASSIGNABILITY OF INTERESTS
Assignability of interests is limited. Except by gift or operation of
law or when consented to by the managing partner, an investor partner in a
partnership may assign only whole interests unless the investor partner owns
less than a whole interest and transfers all his interests to one person or
unless such assignment is to the partnership, the managing partner, an affiliate
of the managing partner, or a third person specified by the managing partner,
and an investor partner must retain at least a whole interest in the event fewer
than all of his interests are assigned to any person other than the partnership,
the managing partner, an affiliate of the managing partner, or a third person
specified by the managing partner. In addition, general and limited partners who
are residents of either the State of California, Iowa, or Minnesota are subject
to additional restrictions concerning the amount of their interests that may be
transferred. See "Terms of the Offering - Additional Requirements." interests
may only be assigned to a person otherwise qualified to become a substituted
general partner or a limited partner, as the case may be. In no event may any
assignment be made which, in the opinion of counsel to that partnership, would
result in the partnership being considered to have been terminated for purposes
of Section 708 of the Internal Revenue Code or might result in a change in the
status of the partnership to a "publicly traded partnership" within the meaning
of Section 7704 of the Internal Revenue Code, unless the managing partner
consents to such an assignment, or which, in the opinion of counsel to the
partnership, may not be effected without registration under the Securities Act
or 1933 or would result in the violation of any applicable state securities
laws. A partnership will not be required to recognize any assignment until the
instrument of assignment has been delivered to the managing partner. In the case
of a mere assignee of interests, the transferring general partner or limited
partner retains all rights other than the right to receive distributions as a
general partner or limited partner. However, an assignee of interests may become
a substituted general partner or limited partner, as the case may be, and thus
be entitled to all of the rights of a general partner or limited partner, only
upon meeting certain conditions, including:
o obtaining the consent of the assignor and the
managing partner to such substitution,
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o paying all costs and expenses incurred in connection
with such substitution,
o making certain representations to the managing
partner, and
o executing appropriate documents to evidence its
agreement to be bound by all of the terms and
provisions of the applicable partnership agreement.
A partnership will amend its records at least once each calendar
quarter to effect the substitution of substituted partners. In the case of
assignments, where the assignee does not become a substituted partner, a
partnership shall recognize the assignment not later than the last day of the
calendar month following receipt of notice of assignment and required
documentation. The restrictions on transfer contained in the partnership
agreement of a partnership may have the effect of reducing interest in the
partnership as a potential acquisition target or encouraging persons considering
an acquisition or takeover of the partnership to negotiate with the
partnership's managing partner rather than pursue non-negotiated acquisition or
takeover attempts, although no assurance can be given that they will have that
effect.
The interest of the managing partner in a partnership may not be
assigned except in limited circumstances set forth in the partnership agreement,
including without limitation assignments to affiliates of the managing partner
that agree to assume a proportionate share of the obligations of the assigning
managing partner, dispositions arising out of the merger, consolidation,
reorganization, or similar transaction of the managing partner, and any pledge
by the managing partner. The rights and obligations of the managing partner and
its affiliates with respect to a drilling program under the drilling program
agreement may be assigned to affiliates and successors in interest by reason of
merger, consolidation, reorganization, or similar transaction, without the
consent of a majority in interest of the general and limited partners of the
partnership, subject to limitations set forth in the drilling program agreement,
and the managing partner and its affiliates will have the right at any time to
mortgage or pledge its interest in properties of the drilling program.
REMOVAL OR WITHDRAWAL
A majority in interest of the general and limited partners shall have
the right to remove the managing partner and to elect and substitute a new
managing partner. In such event, the removed managing partner shall be required
to offer to sell a minimum of 20% of, and shall have the right to offer to sell
the remaining 80% of such managing partner's interest in the partnership to the
new managing partner at a price and method of payment mutually agreeable to the
removed managing partner and the new managing partner. If the new managing
partner and the removed managing partner are unable to agree within 10 days on
the purchase price of such interest, the new managing partner and the removed
managing partner shall select a mutually agreeable independent expert to
determine such purchase price. In addition, a majority in interest of the
general and limited partners shall have the right to remove Mewbourne Oil
Company as the drilling program manager. In such event, Mewbourne Oil Company
and its affiliates shall have the right to offer to sell up to 100% of their
collective ownership interests in oil and gas leases subject to the drilling
program agreement to the new drilling program manager. The method of payment for
the removed managing partner's and Mewbourne Oil Company's interest must be fair
and must protect the solvency and liquidity of the partnership.
In the event the managing partner withdraws or retires from a
partnership and such withdrawal or retirement causes dissolution of the
partnership, a majority in interest of the general and limited partners shall be
entitled to reconstitute the partnership and elect and substitute a new managing
partner. Such new managing partner shall be entitled to acquire the partnership
interest of the retiring managing partner on the same basis and in the same
manner as set forth above. The managing partner may not voluntarily withdraw
from a partnership prior to the later to occur of:
o the completion of the partnership's primary drilling
activities under the related drilling program, and
o the fifth anniversary of the date that general and limited
partners were admitted to the partnership.
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In order to exercise its right of withdrawal, the managing partner must
give the general and limited partners at least 120 days' advance written notice.
DISSOLUTION, LIQUIDATION AND TERMINATION
A partnership shall be dissolved upon:
o the occurrence of December 31, 2049,
o the vote or consent in writing of a majority in
interest of the general and limited partners at any
time,
o the sale, disposition, or termination of all or
substantially all of the oil and gas leases then
owned by the partnership,
o the withdrawal, bankruptcy, insolvency, or
dissolution in certain circumstances of the managing
partner, the occurrence of any other event which
would permit a trustee or receiver to acquire control
of the property or affairs of the managing partner or
any other event of withdrawal from the partnership by
the managing partner as provided for by law; provided
that neither the dissolution of the managing partner
as a consequence of merger, consolidation,
recapitalization, or other corporate reorganization
effected under the partnership agreement shall cause
dissolution of the partnership,
o the adjudication of insolvency or bankruptcy of the
partnership, or an assignment by the partnership for
the benefit of creditors,
o the withdrawal or retirement of the managing partner,
or
o the occurrence of any other event which, under
applicable law, causes the dissolution of the
partnership.
If dissolution of a partnership occurs due to the withdrawal or
bankruptcy of a general partner, the partnership shall not be terminated but
shall automatically be reconstituted. Upon dissolution of a partnership for any
reason other than bankruptcy or withdrawal of a general partner, unless it is
reconstituted as provided under "-- Rights and Powers of Partners" above, the
managing partner or a liquidator appointed by the managing partner shall wind up
the affairs of the partnership and make final distribution of its assets. In the
event the managing partner is unable to serve as liquidator, the liquidator
shall be appointed by a majority in interest of the general and limited
partners.
After making a proper accounting and paying or making provision for the
payment of existing and contingent liabilities, the liquidator of a partnership
shall sell all remaining assets of the partnership for cash at the best price
available therefor and distribute the proceeds of such sales to the partners. In
the case of a sale in liquidation, the liquidator shall adjust the capital
accounts of the partners pursuant to the partnership agreement to account for
all gain and loss on such sales and shall distribute the proceeds of such sales
to the partners in accordance with their respective capital account balances, as
so adjusted. partners in a partnership will not be obligated to restore any
negative balance in their capital accounts after the liquidation of their
interests in a partnership. The distribution of cash or properties to the
partners will constitute a complete distribution to the partners of their
respective interests in that partnership and its property.
In the event of a dissolution and liquidation of a partnership pursuant
to an exchange or tender offer, the liquidator may assume the sale of all
remaining assets of the partnership for cash at the respective fair market
values of such assets and then debit or credit each partner's capital account
with its respective share of the hypothetical gains or losses resulting from
such assumed sales in the same manner as such capital account would be debited
or credited on the actual sales of such assets. If such exchange or tender offer
is conducted pursuant to a sale of all or substantially all of the assets of a
partnership or is otherwise binding on the partners, the liquidator shall
distribute all
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securities or other assets received from the sale of the partnership assets to
the partners proportionately based on the partners' positive capital account
balances, as so adjusted. In the event of an exchange offer that is not binding
upon all partners, the liquidator shall then exchange for securities offered in
the exchange or tender offer partnership oil and gas properties having a fair
market value equal to the sum of the positive balances in the capital accounts,
as so adjusted, of the partners who elect to accept the exchange or tender
offer. The liquidator shall distribute such securities to such accepting
partners on a basis reflecting the partners' respective positive capital account
balances, adjusted as provided above.
RECONSTITUTION OF A PARTNERSHIP
In the event the managing partner of a partnership withdraws or retires
from the partnership, directly or as a result of a bankruptcy, dissolution, or
similar event that would dissolve the partnership, a majority in interest of
general and limited partners, acting at a meeting to be held within 90 days
following receipt of written notice of such event from the managing partner,
shall be entitled to reconstitute the partnership and elect and substitute a new
managing partner, which may be the retiring managing partner.
In the event a majority in interest but less than all of the general
and limited partners in a partnership elect to reconstitute the partnership, the
partners' capital accounts shall be adjusted by assuming the sale of all assets
of the partnership for cash at the respective fair market values of such assets
as of the date of dissolution of the partnership and debiting or crediting each
partner's capital account with its respective share of the hypothetical gains or
losses resulting from such assumed sales in the same manner as such capital
account would be debited or credited on the actual sales of such assets.
The new managing partner shall then sell for cash partnership oil and
gas properties having a fair market value equal to the fair market value of all
partnership oil and gas properties times the ratio of the aggregate of the
positive balances in the capital accounts, as so adjusted, of the general and
limited partners that have not elected to reconstitute the partnership and the
retiring managing partner, to the extent the retiring managing partner's
aggregate partnership interest was not purchased by the new managing partner, to
the positive balances of all partners. The new managing partner shall then
distribute such cash to the general and limited partners that have elected not
to reconstitute the partnership and to the managing partner, to such extent, in
proportion to the positive balances of their respective capital accounts.
The new managing partner, on behalf of the partners that have elected
not to form the reconstituted partnership, shall retain for the benefit of the
reconstituted partnership an undivided interest in all oil and gas properties of
the partnership remaining after the distributions provided for above.
The retiring managing partner shall have the right to elect to receive
a distribution in kind of an undivided interest in partnership oil and gas
properties having a fair market value equal to the fair market value of all
partnership oil and gas properties times the ratio of the positive balance in
the retiring managing partner's capital account to the positive balances of all
partners.
Each general partner of a partnership will covenant not to cause a
dissolution of that partnership by voluntary withdrawal or other voluntary act.
In the event of such a dissolution, however, upon reconstitution of the
partnership, the withdrawing general partner shall remain subject as a general
partner with respect to any liabilities or obligations of the partnership
arising prior to such withdrawal. Upon withdrawal from the partnership, a
general partner is entitled to continue to receive any distributions to which he
is otherwise entitled under the partnership agreement for the period prior to
his withdrawal; however, such general partner shall not be entitled to receive
the fair value of his interest in the partnership as of the date of such
withdrawal based upon his right to share in distributions from the partnership,
and neither the partnership nor the managing partner has any obligation to
repurchase any interest in the partnership from the withdrawing general partner.
The withdrawing general partner will not be entitled to receive any
distributions for the period subsequent to his withdrawal nor shall such general
partner have any rights as an investor partner under the partnership agreement.
The sharing ratios will be recalculated among the general and limited partners
without regard to the withdrawing general partner's capital contribution. If the
partnership is reconstituted due to the bankruptcy of a general partner, the
trustee, receiver, or
100
108
other successor in interest of the bankrupt general partner shall become liable
for all of the debts and obligations of the bankrupt general partner.
AMENDMENTS
A majority in interest of the general and limited partners of a
partnership may require the amendment of the partnership agreement without the
consent of the managing partner, except that any amendment which would increase
the liability or duties of any partner, change the contributions required of a
partner, provide for the reallocation of profits, losses, or deductions to the
detriment of a partner, establish any new priority in one or more partners as to
the return of capital contributions or as to profits, losses, deductions, or
distributions to the detriment of a partner or cause the partnership to be taxed
as a corporation, must be approved by such partner before it will be binding
upon him. Minor and conformatory amendments and amendments that do not adversely
affect the general and limited partners in any material respect may be made by
the managing partner without the consent of the general and limited partners.
REPORTS TO PARTNERS
The managing partner will furnish to the general and limited partners
of each partnership semi-annual and annual reports which will contain financial
statements, including a balance sheet and statements of income, partners' equity
and cash flows, all of which shall be prepared in accordance with generally
accepted accounting principles, which statements at fiscal year end will be
audited by an independent certified public accountant. Financial statements
furnished in a partnership's semi-annual reports will not be audited.
Semi-annually, all general and limited partners will also receive a summary
itemization of the transactions between the managing partner or any affiliate of
the managing partner and the partnership showing all items of compensation
received by the managing partner and its affiliates, including without
limitation the average price paid by any affiliate of the managing partner
during the two most recent calendar quarters for oil and gas produced by program
wells purchased by such affiliate and the highest average price paid by any
other substantial purchaser of comparable oil or gas produced in the field where
such program wells are located. Annually beginning with the fiscal year ending
December 31, 2000, as to a partnership formed in 1999, and ending December 2001,
as to a partnership formed in 2000, oil and gas reserve estimates prepared by an
independent petroleum engineer will also be furnished to the general and limited
partners. Annual reports will be provided to the general and limited partners
within 120 days after the close of the partnership fiscal year, and semi-annual
reports will be provided within 75 days after the close of the first six months
of the partnership fiscal year. In addition, the general and limited partners in
a partnership shall receive on a monthly basis while the partnership is
participating in the drilling and completion activities of a drilling program,
reports containing a description of the partnership's acquisition of interests
in prospects, including farmins and farmouts, and the drilling, completion and
abandonment of wells thereon. All general and limited partners will receive a
report containing information necessary for the preparation of their federal
income tax returns and any required state income tax returns by March 15 of each
calendar year or as soon as practicable thereafter. The managing partner will
furnish to the general and limited partners information regarding differences
between tax basis of accounting and the basis of generally accepted accounting
principles in accordance with generally accepted accounting principles. In
addition, the information specified by Form 10-Q, if such report is required to
be filed with the Securities and Exchange Commission, will be furnished to the
general and limited partners within 45 days after the close of each quarterly
fiscal period. General and limited partners in a partnership will also receive
in such monthly reports a summary of the status of wells drilled by the
partnership. The managing partner may provide such other reports and financial
statements as it deems necessary or desirable.
ACCESS TO LIST OF GENERAL AND LIMITED PARTNERS
An alphabetical list of the investor's names, addresses and business
telephone numbers of the general and limited partners in a partnership
identified as general partners or limited partners along with the number of
interests held by each of them will be maintained as a part of the books and
records of the partnership and will be available for inspection by any general
and limited partners or his or her designated agent at the principal office of
the partnership upon the request of an investor partner. The investor list will
be updated at least quarterly to reflect changes in the information contained in
such list. A copy of the investor list for a partnership will be mailed to any
investor partner in the partnership requesting the investor list within ten (10)
days of the request. The copy of
101
109
the investor list will be printed in alphabetical order, on white paper, and in
a readily readable type size, in no event smaller than 10-point type. A
reasonable charge for copy work may be charged by the partnership. The purposes
for which an investor partner may request a copy of the investor list include,
without limitation, matters relating to general and limited partners' voting
rights under the partnership agreement and the exercise of general and limited
partners' rights under federal proxy laws. If the managing partner neglects or
refuses to exhibit, produce, or mail a copy of the investor list as requested,
the managing partner will be liable to any investor partner requesting the list
for the costs, including attorneys fees, incurred by that investor partner for
compelling the production of the investor list, and for actual damages suffered
by any investor partner by reason of such refusal or neglect. It shall be a
defense that the actual purpose and reason for the requests for inspection or
for a copy of the investor list is to secure the list of general and limited
partners or other information for the purpose of selling such list or
information or copies of such list, or of using the same for a commercial
purpose other than in the interest of the applicant as an investor partner
relative to the affairs of the partnership. The managing partner may require the
investor partner requesting the investor list to represent that the list is not
requested for a commercial purpose unrelated to the investor partner's interest
in the partnership. The above remedies in favor of an investor partner
requesting copies of the investor list are in addition to, and shall not in any
way limit, other remedies available to general and limited partners under
federal law, or the laws of any state.
POWER OF ATTORNEY
In signing the special subscription instructions and the subscription
agreement in the form attached as Exhibit C and Exhibit D to this prospectus,
each investor adopts the terms and provisions of the partnership agreement for
the partnership to which such investor is admitted, including representations
and warranties contained in the partnership agreement, and makes the power of
attorney set forth in Section 10.3 of the partnership agreement. Pursuant to the
partnership agreement, each investor partner of a partnership will appoint the
managing partner as his attorney-in-fact, on his behalf and in his name, to
execute, swear to and file all documents or instruments necessary or desirable:
o to comply with the laws of any state in which the
partnership does business,
o to amend the partnership agreement to admit a new or
substituted general partner or limited partner or
make changes required by amendments thereto adopted
by the general and limited partners,
o to amend the partnership agreement to effect the
conversion of the general partners to limited
partners,
o to conduct the business and affairs of the
partnership,
o to reflect the agreement of all of the general and
limited partners if the required majority in interest
of the general and limited partners has approved any
action under the partnership agreement and amendments
to the partnership agreement to implement such
action, and
o to perform other ministerial acts in connection with
the partnership and its operations, all subject to
compliance with the partnership agreement.
Such appointment shall constitute a power coupled with an interest,
shall not be revocable and shall be effectuated pursuant to Section 10.3 of the
partnership agreement by an investor partner's execution of such special
subscription instructions and subscription agreement.
LEGAL OPINIONS
The validity of the interests offered by this prospectus and federal
income tax matters as discussed under "Tax Aspects" in this prospectus has been
passed upon by Vinson & Elkins L.L.P., 3700 Trammel Crow Center, 2001 Ross
Avenue, Dallas, Texas 75201-2975.
102
110
EXPERTS
The balance sheet of Mewbourne Development Corporation as of June 30,
1998 and the balance sheet of Mewbourne Energy Partners 99-A, L.P. as of April
9, 1999, included in this Registration Statement on Form S-1, have been included
in reliance on the reports of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
The information included in this Registration Statement on Form S-1
regarding the summary of the reserve report as of January 1, 1999, for Mewbourne
Development Partners 92 GP, Mewbourne Development Partners 93-A, L.P., Mewbourne
Development Partners 93-B, L.P., Mewbourne Development Partners 94-A, L.P.,
Mewbourne Development Partners 94-B, L.P. Mewbourne Development Partners 94-C,
L.P., Mewbourne Energy Partners 94 Private L.P., Mewbourne Energy Partners 95-A,
L.P., Mewbourne Energy Partners 95-B, L.P., Mewbourne Energy Partners 96-A, L.P.
and Mewbourne Energy Partners 97-A, L.P. was audited by Forrest A. Garb &
Associates, Inc. and is included in this prospectus in reliance upon the report
of such firm as experts with respect to the matters covered by its report and
the giving of its report.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on behalf of the partnerships
with the Securities and Exchange Commission under the Securities Act of 1933
relating to the interests being offered by this prospectus. This prospectus does
not contain all of the information set forth in the registration statement,
certain portions of which have been omitted pursuant to the rules and
regulations of the Securities and Exchange Commission.
For further information about us, the partnerships and the interests
being offered, please review the registration statement, including the exhibits
that are filed with it. Statements made in the registration statement that
describe documents may not necessarily be complete. We recommend that you also
review the documents that we have filed with the registration statement to
obtain a more complete understanding of those documents. A copy of the
registration statement is available for inspection without charge at the public
reference facilities maintained by the Securities and Exchange Commission at 450
Fifth Street, N.W., Washington, D.C., 20549, 75 Park Place, New York, New York
10007 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60604. The registration statement may also be obtained from
the Web site maintained by the Securities and Exchange Commission at
http://www.sec.gov. Copies of any materials filed as a part of the registration
statement may be obtained for a fee from the Public Reference Section of the
Securities and Exchange Commission at 450 Fifth Street, N.W., Washington, D.C.,
20549.
The delivery of this prospectus at any time does not imply that the
information contained in this prospectus is correct as of any time subsequent to
the date of this prospectus.
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111
INDEX TO FINANCIAL STATEMENTS
Financial Statement of Mewbourne Development Corporation:
Report of Independent Accountants............................................................ F1-1
Balance Sheet as of June 30, 1998............................................................ F1-2
Notes to Balance Sheet....................................................................... F1-3
Unaudited Financial Statement of Mewbourne Development Corporation:
Unaudited Balance Sheet as of May 31, 1999................................................... F2-1
Notes to Unaudited Balance Sheet............................................................. F2-2
Financial Statement of Mewbourne Energy Partners 99-A, L.P.:
Report of Independent Accounts............................................................... F3-1
Balance Sheet as of April 9, 1999............................................................ F3-2
Note to Balance Sheet........................................................................ F3-3
THE FOLLOWING FINANCIAL STATEMENTS INCLUDE THOSE OF THE MANAGING
PARTNER, MEWBOURNE DEVELOPMENT CORPORATION, IN WHICH THE GENERAL AND LIMITED
PARTNERS WILL ACQUIRE NO INTEREST.
112
MEWBOURNE DEVELOPMENT CORPORATION
BALANCE SHEET WITH REPORT
OF INDEPENDENT ACCOUNTANTS
JUNE 30, 1998
113
REPORT OF INDEPENDENT ACCOUNTANTS
September 3, 1998
To the Board of Directors
of Mewbourne Development Corporation
In our opinion, the accompanying balance sheet presents fairly, in all material
respects, the financial position of Mewbourne Development Corporation as of June
30, 1998 in conformity with generally accepted accounting principles. This
balance sheet is the responsibility of the Company's management; our
responsibility is to express an opinion on this balance sheet based on our
audit. We conducted our audit of this balance sheet in accordance with generally
accepted auditing standards which require that we plan and perform the audit to
obtain reasonable assurance about whether the balance sheet is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the balance sheet, assessing the accounting
principles used and significant estimates made by management, and evaluating the
overall balance sheet presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Dallas, Texas
F1 - 1
114
MEWBOURNE DEVELOPMENT CORPORATION
BALANCE SHEET
JUNE 30, 1998
ASSETS
Current assets:
Cash and cash equivalents $ 1,935,421
Accounts receivable, related party 369,831
------------
Total current assets 2,305,252
Marketable securities available for sale 1,267,181
Investments in partnerships 124,007
Oil and gas properties - full-cost method, net 3,381,179
------------
Total assets $ 7,077,619
============
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable, related party $ 68,718
------------
Deferred income taxes 1,059,882
------------
Stockholder's equity:
Common stock, $1 par value, 1,000 shares authorized,
issued and outstanding 1,000
Paid-in capital in excess of par value of common stock 1,190,262
Retained earnings 4,546,947
Net unrealized gain on marketable securities available for sale 210,810
------------
Total stockholder's equity 5,949,019
------------
Total liabilities and stockholder's equity $ 7,077,619
============
The accompanying notes are an integral part of this balance sheet
F1 - 2
115
MEWBOURNE DEVELOPMENT CORPORATION
NOTES TO BALANCE SHEET
1. SIGNIFICANT ACCOUNTING POLICIES
FINANCIAL STATEMENT PRESENTATION
Mewbourne Development Corporation (the "Company") is a wholly-owned
subsidiary of Mewbourne Holdings, Inc. (the "Stockholder"). The Company
is principally involved in the exploration and production of oil and gas
in Texas, Oklahoma and New Mexico.
The Company follows the full-cost method of accounting for its oil and
gas activities, all of which are located in the Continental United
States. Under the full-cost method, all productive and nonproductive
costs incurred in the acquisition, exploration and development of oil and
gas properties are capitalized. All such costs are directly identified
with acquisition, exploration and development activities and do not
include any costs related to production, general corporate overhead, or
similar activities. Depreciation, depletion and amortization of oil and
gas properties is computed on the units-of-production method, using the
proved reserves underlying the oil and gas properties. At June 30, 1998,
all capitalized costs were subject to amortization. Gains and losses on
the sale or other disposition of properties are not recognized unless
such adjustments would significantly alter the relationship between
capitalized costs and proved reserves of oil and gas.
Capitalized costs are subject to a ceiling test that limits such costs to
the aggregate of the present value of future net revenues of proved
reserves discounted at 10%, based on oil and gas prices and operating
conditions at the balance sheet date, and the lower of cost or fair value
of unproved properties.
REVENUE RECOGNITION
Revenue is normally recognized from jointly owned properties as oil and
gas is produced and sold for the Company's account, although the various
interest owners may take more or less than their proportionate ownership
of the production. The Company uses the entitlements method of accounting
for imbalances. There are no material imbalances at June 30, 1998.
MANAGEMENT ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments, those with original
maturities of three months or less at the date of acquisition, to be cash
equivalents.
A substantial portion of the Company's cash and cash equivalents is
maintained in one financial institution.
F1 - 3
116
MEWBOURNE DEVELOPMENT CORPORATION
NOTES TO BALANCE SHEET
1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
SECURITIES
All securities are intended to be held for investment purposes and are
therefore classified as "available for sale" which requires that such
securities be carried at fair value with unrealized holding gains or
losses, net of related income tax effects, recorded as a separate
component of stockholder's equity. Realized gains and losses on sales of
securities are determined utilizing the specific identification method.
INVESTMENTS IN PARTNERSHIPS
The Company is managing partner of several oil and gas partnerships. The
Company accounts for its investment in partnerships using the equity
method of accounting.
2. MARKETABLE SECURITIES
Reconciliation of cost to market value as of June 30, 1998 is as follows:
Gross Unrealized
------------------------------ Market
Cost Gains Losses Value
------------- ------------- ------------- -------------
U.S. Treasury Bonds $ 908,613 $ 328,447 $ - $ 1,237,060
Equity Securities 18,552 11,569 - 30,121
------------- ------------- ------------- -------------
$ 927,165 $ 340,016 $ - $ 1,267,181
============= ============= ============= =============
As of June 30, 1998, the cost of U.S. Treasury Bonds includes $501,614 of
accrued interest income.
Included in the Company's securities portfolio as of June 30, 1998 are
debt securities with a market value of $1,237,060 with scheduled
maturities as follows:
Six to ten years $ 684,850
More than ten years 552,210
-------------
$ 1,237,060
=============
F1 - 4
117
MEWBOURNE DEVELOPMENT CORPORATION
NOTES TO BALANCE SHEET
3. OIL AND GAS PROPERTIES
Oil and gas properties consist of the following as of June 30, 1998:
Proved oil and gas properties $ 6,652,618
Accumulated depreciation, depletion and amortization (3,271,439)
-------------
Net proved oil and gas properties $ 3,381,179
=============
4. INCOME TAXES
Federal income tax expense is calculated on a current basis at the
Stockholder (consolidated) level and is allocated to its subsidiaries
based on their respective taxable income or loss, and a payable or
receivable is established with the Stockholder. As of June 30, 1998,
federal income tax payable to the Stockholder was $3,692.
In accordance with Statement of Financial Accounting Standards No. 109,
Accounting for Income Taxes, the Company calculates its deferred tax
liability as if it were a separate tax paying entity. Deferred income
taxes are recognized for the tax consequences in future years of
differences between the tax basis of assets and liabilities and their
financial reporting amounts at the balance sheet date based on enacted
tax laws and statutory tax rates applicable to the periods in which the
differences are expected to affect taxable income. Valuation allowances
are established when necessary to reduce deferred tax assets to the
amount expected to be realized.
The deferred tax liability is comprised of the following temporary
differences as of June 30, 1998:
Oil and gas properties $ 930,676
Unrealized gain on marketable securities 129,206
-------------
$ 1,059,882
=============
5. RELATED PARTY TRANSACTIONS
Under the terms of an operating agreement, substantially all services and
charges relating to the oil and gas properties in which the Company
invests are billed by and paid to a wholly-owned subsidiary of the
Stockholder as operator of the oil and gas properties.
6. SUPPLEMENTAL OIL AND GAS INFORMATION (UNAUDITED)
The estimates of proved oil and gas reserves utilized in the preparation
of these financial statements were estimated in accordance with
guidelines established by the Securities and Exchange Commission and the
Financial Accounting Standards Board, which require that reserve reports
be prepared using oil and gas prices and operating conditions at the
balance sheet date with no provision for price and cost escalation except
by contractual agreement. Proved oil and gas reserves are defined as
estimated quantities of crude oil, natural gas, and natural gas liquids
which geological and engineering data demonstrate with reasonable
certainty to be recoverable in future years from known reservoirs under
existing economic and operating conditions. These estimates may change as
future information becomes available. All of the Company's reserves are
located onshore in the Continental United States.
F1 - 5
118
MEWBOURNE DEVELOPMENT CORPORATION
NOTES TO BALANCE SHEET
6. SUPPLEMENTAL OIL AND GAS INFORMATION (UNAUDITED) (continued)
As of June 30, 1998, the Company had proved oil reserves of 67,279
barrels, and proved gas reserves of 3,621,738 thousand cubic feet (mcf).
Future net cash flows from these reserves are as follows as of June 30,
1998:
Future cash inflows $ 9,239,128
Future production costs (3,608,739)
Future development costs (83,051)
Future income tax expense (1,194,189)
-------------
4,353,149
Discount at 10% (1,475,969)
-------------
Standard measure of discounted future net cash flows from estimated
production of proved oil and gas reserves after
income taxes $ 2,877,180
=============
F1 - 6
119
MEWBOURNE DEVELOPMENT CORPORATION
BALANCE SHEET (UNAUDITED)
May 31, 1999
120
MEWBOURNE DEVELOPMENT CORPORATION
BALANCE SHEET
(UNAUDITED)
May 31, 1999
ASSETS
Current assets:
Cash and cash equivalents $1,807,500
Total current assets 1,807,500
Marketable securities available for sale 1,246,470
Investment in partnerships 113,048
Oil and gas properties-full-cost method, net 4,038,403
----------
Total assets $7,205,421
==========
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Accounts payable, related party $ 58,376
----------
Deferred income taxes 1,019,259
Stockholder's equity:
Common stock, $1.00 par value, 1,000 shares authorized, 1,000
issued and outstanding
Paid-in capital in excess of par value of common stock 1,190,262
Retained earnings 4,772,786
Net unrealized gain on marketable securities available for sale 163,738
----------
Total stockholder's equity 6,127,786
----------
Total liabilities and stockholder's equity $7,205,421
==========
The accompanying notes are an integral part of this balance sheet.
F2 - 1
121
MEWBOURNE DEVELOPMENT CORPORATION
NOTES TO UNAUDITED BALANCE SHEET
----------
1. SIGNIFICANT ACCOUNTING POLICIES
FINANCIAL STATEMENT PRESENTATION
Mewbourne Development Corporation (the "Company"), is a wholly-owned
subsidiary of Mewbourne Holdings, Inc. (the "Stockholder"). The Company
is principally involved in the exploration and production of oil and
gas in Texas, Oklahoma, and New Mexico.
The Company follows the full-cost method of accounting for its oil and
gas activities, all of which are located in the Continental United
States. Under the full-cost method, all productive and nonproductive
costs incurred in the acquisition, exploration and development of oil
and gas properties are capitalized. All such costs are directly
identified with acquisition, exploration and development activities and
do not include any costs related to production, general corporate
overhead, or similar activities. Depreciation, depletion, and
amortization of oil and gas properties is computed on the
units-of-production method, using the proved reserves underlying the
oil and gas properties. Capitalized costs in unproved properties are
not amortized until proved reserves associated with the property can be
determined or until impairment occurs. At May 31, 1999, all capitalized
costs were subject to amortization. Gains and losses on the sale or
other disposition of properties are not recognized unless such
adjustments would significantly alter the relationship between
capitalized costs and proved reserves of oil and gas.
Capitalized costs are subject to a ceiling test that limits such costs
to the aggregate of the present value of future net revenues of proved
reserves discounted at 10%, based on oil and gas prices and operating
conditions at the balance sheet date, and the lower of cost or fair
value of unproved properties.
REVENUE RECOGNITION
Revenue is normally recognized from jointly owned properties as oil and
gas is produced and sold for the Company's account, although the
various interest owners may take more or less than their proportionate
ownership of the production. The Company uses the entitlements method
of accounting for imbalances. There are no material imbalances at May
31, 1999.
MANAGEMENT ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could differ
from those estimates.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments, those with
original maturities of three months or less to be cash equivalents. A
substantial portion of the Company's cash and cash equivalents is
maintained in one financial institution.
F2 - 2
122
MEWBOURNE DEVELOPMENT CORPORATION
NOTES TO UNAUDITED BALANCE SHEET
----------
1. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
SECURITIES
All securities are intended to be held for investment purposes and are
therefore classified as "available for sale" which requires that such
securities be carried at fair value with unrealized holding gains or
losses, net of related income tax effects, recorded as a separate
component of stockholder's equity. Realized gains and losses on sales
of securities are determined utilizing the specific identification
method.
INVESTMENTS IN PARTNERSHIPS
The Company is Managing Partner of several oil and gas partnerships and
owns a 1% interest in all revenues and expenses of each partnership.
The Company accounts for its investments in partnerships using the
equity method of accounting.
2. MARKETABLE SECURITIES
Reconciliation of cost to market value as of May 31, 1999 is as
follows:
Gross Unrealized
----------------------------- Market
Cost Gains Losses Value
---------- ---------- ---------- -------------
U.S. Treasury Bonds $982,378 $264,092 $ -- $1,246,470
The cost of U.S. Treasury Bonds includes $575,378 of accrued interest
income. All U.S. Treasury Bonds have maturity dates between five to
twenty years.
3. OIL AND GAS PROPERTIES
Oil and gas properties consist of the following as of May 31, 1999:
Proved oil and gas properties 8,227,653
Accumulated depreciation, depletion, and amortization (4,189,250)
--------------
Net oil and gas properties $ 4,038,403
==============
4. INCOME TAXES
Federal income tax expense calculated on a current basis at the
Stockholder (consolidated) level is allocated to its subsidiaries based
on their respective taxable income. As of May 31, 1999 federal income
tax payable to shareholders was zero.
In accordance with Statement of Financial Accounting Standards No. 109,
Accounting for Income Taxes, the Company calculates its deferred tax
liability as if it were a separate tax paying entity. Deferred income
taxes are recognized for the tax consequences in future years of
differences between the tax basis of assets and liabilities and their
financial reporting amounts at the balance sheet date based on enacted
tax laws and statutory
F2 - 3
123
MEWBOURNE DEVELOPMENT CORPORATION
NOTES TO UNAUDITED BALANCE SHEET
----------
tax rates applicable to the periods in which the differences are
expected to affect taxable income. Valuation allowances are established
when necessary to reduce deferred tax assets to the amount expected to
be realized.
As of May 31, 1999, the Company's deferred tax liability is comprised
of the following temporary differences:
Oil and gas properties $ 918,904
Unrealized gain on marketable securities 100,355
--------------
$ 1,019,259
==============
5. RELATED PARTY TRANSACTIONS
Under the terms of an operating agreement, substantially all services
and charges relating to the oil and gas properties in which the Company
invests are billed by and paid to a wholly-owned subsidiary of the
Stockholder as operator of the oil and gas properties.
6. SUPPLEMENTAL OIL AND GAS INFORMATION
The estimates of proved oil and gas reserves utilized in the
preparation of the balance sheet were estimated in accordance with
guidelines established by the Securities and Exchange Commission and
the Financial Accounting Standards Board, which require that reserve
reports be prepared using oil and gas prices and operating conditions
at the balance sheet date with no provision for price and cost
escalation except by contractual agreement. Proved oil and gas reserves
are defined as estimated quantities of crude oil, natural gas, and
natural gas liquids which geological and engineering data demonstrate
with reasonable certainty to be recoverable in future years from known
reservoirs under existing economic and operating conditions. These
estimates may change as future information becomes available. All of
the Company's reserves are located onshore in the continental United
States.
As of May 31, 1999, the Company had proved oil reserves of 93,557
barrels and proved gas reserves of 4,876,825 thousand cubic feet (mcf).
Future net revenues and the present value of these reserves as of May
31, 1999 are as follows:
Future cash inflows $ 12,188,050
Future production costs (5,437,889)
Future development costs (149,929)
Future income tax expense (1,113,348)
--------------
5,486,884
Discount at 10% (2,165,581)
--------------
Standard measure of discounted future net cash flows
from estimated production of proved oil and gas
reserves after income taxes $ 3,321,303
==============
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124
MEWBOURNE ENERGY
PARTNERS 99-A, L.P.
BALANCE SHEET WITH REPORT OF
INDEPENDENT ACCOUNTANTS
APRIL 9, 1999 (DATE OF INCEPTION)
125
REPORT OF INDEPENDENT ACCOUNTANTS
April 12, 1999
To the Board of Directors
Mewbourne Development Corporation
In our opinion, the accompanying balance sheet presents fairly, in all material
respects, the financial position of Mewbourne Energy Partners 99-A, L.P. as of
April 9, 1999 (date of inception) in conformity with generally accepted
accounting principles. This balance sheet is the responsibility of the Company's
management; our responsibility is to express an opinion on this balance sheet
based on our audit. We conducted our audit in accordance with generally accepted
auditing standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the balance sheet is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the balance sheet, assessing the accounting
principles used and significant estimates made by management, and evaluating the
overall balance sheet presentation. We believe that our audit provides a
reasonable basis for the opinion expressed above.
PricewaterhouseCoopers LLP
Dallas, Texas
F3 - 1
126
MEWBOURNE ENERGY PARTNERS 99-A, L.P.
BALANCE SHEET
APRIL 9, 1999
ASSETS
Cash $ 100
-----------------
Total assets $ 100
-----------------
PARTNER'S CAPITAL
Partner's capital $ 100
-----------------
Total partner's capital $ 100
-----------------
The accompanying note is an integral part of this balance sheet.
F3 - 2
127
MEWBOURNE ENERGY PARTNERS 99-A, L.P.
NOTE TO BALANCE SHEET
1. ORGANIZATION
Mewbourne Energy Partners 99-A, L.P. (the "Partnership") was formed on
April 9, 1999. The Partnership was organized to offer partnership interests
and to participate in a program consisting of the acquisition, drilling and
development of oil and gas prospects. The offering of limited and general
partner interest has not begun; as such, the Partnership's operations have
not commenced. Mewbourne Development Corporation ("MDC") serves as managing
partner.
F3 - 3
128
================================================================================
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO BUY ANY
OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION.
----------
TABLE OF CONTENTS
Page
----
SUMMARY OF OFFERING.................................................1
RISK FACTORS........................................................4
DEFINITIONS........................................................16
TERMS OF THE OFFERING..............................................20
ADDITIONAL FINANCING...............................................27
PLAN OF DISTRIBUTION...............................................28
INVESTMENT OBJECTIVES..............................................28
PROPOSED ACTIVITIES................................................29
APPLICATION OF PROCEEDS............................................39
PARTICIPATION IN COSTS AND REVENUES................................40
COMPENSATION AND REIMBURSEMENT.....................................42
ESTIMATED DRILLING PROGRAM EXPENSES................................45
MANAGEMENT.........................................................46
OWNERSHIP STRUCTURE OF MEWBOURNE COMPANIES.........................47
CONFLICTS OF INTEREST..............................................52
PRIOR ACTIVITIES...................................................58
TAX ASPECTS........................................................71
COMPETITION, MARKETS AND REGULATION................................89
LIABILITY OF GENERAL AND LIMITED PARTNER...........................92
SUMMARY OF PARTNERSHIP AGREEMENT AND DRILLING PROGRAM
AGREEMENT.................................................93
LEGAL OPINIONS....................................................102
EXPERTS...........................................................102
WHERE YOU CAN FIND MORE INFORMATION...............................103
INDEX TO FINANCIAL STATEMENTS.....................................104
Exhibit A: Form of Agreement of Partnership
Exhibit B: Form of Drilling Program Agreement
Exhibit C: Form of Special Subscription Instructions
Exhibit D: Form of Subscription Agreement
----------
UNTIL 90 DAYS AFTER THE DATE OF THIS PROSPECTUS, AS AMENDED OR
SUPPLEMENTED, ALL DEALERS EFFECTING TRANSACTIONS IN THESE SECURITIES, WHETHER OR
NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS
WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
================================================================================
================================================================================
MEWBOURNE
ENERGY 99-00
DRILLING PROGRAMS
(PER PARTNERSHIP MINIMUM OFFERING AMOUNT)
1,000 LIMITED PARTNER INTERESTS
AT $1,000 PER INTEREST
MINIMUM PURCHASE OF
FIVE LIMITED PARTNER INTERESTS
1,000 GENERAL PARTNER INTERESTS
AT $1,000 PER INTEREST
MINIMUM PURCHASE OF
FIVE GENERAL PARTNER INTERESTS
------------------
PROSPECTUS
------------------
, 1999
================================================================================
129
EXHIBIT A
AGREEMENT OF PARTNERSHIP
---------------------
MEWBOURNE ENERGY PARTNERS -A, L.P.
---------------------
---------------------
130
AGREEMENT OF PARTNERSHIP
MEWBOURNE ENERGY PARTNERS -A, L.P.
TABLE OF CONTENTS
Page
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ARTICLE I
FORMATION OF PARTNERSHIP
SECTION 1.1 Formation......................................................................A-1
SECTION 1.2 Name...........................................................................A-1
SECTION 1.3 Business.......................................................................A-1
SECTION 1.4 Principal Office...............................................................A-1
SECTION 1.5 Names and Addresses of Partners................................................A-1
SECTION 1.6 Term...........................................................................A-2
SECTION 1.7 Filings........................................................................A-2
SECTION 1.8 Title to Partnership Property..................................................A-2
SECTION 1.9 Conversion of General Partner Interests into Limited Partner Interests.........A-2
ARTICLE II
DEFINITIONS AND REFERENCES
SECTION 2.1 Defined Terms..................................................................A-3
SECTION 2.2 References and Titles..........................................................A-9
ARTICLE III
CAPITALIZATION
SECTION 3.1 Capital Contributions of Investor Partners.....................................A-9
SECTION 3.2 Contributions of Managing Partner..............................................A-9
SECTION 3.3 Return of Contributions........................................................A-9
SECTION 3.4 Additional Contributions.......................................................A-9
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
SECTION 4.1 Allocation Among Partners.....................................................A-10
SECTION 4.2 Allocations...................................................................A-10
SECTION 4.3 Distributions.................................................................A-11
SECTION 4.4 Allocations on Transfers......................................................A-12
ARTICLE V
MANAGEMENT
SECTION 5.1 Power and Authority of Managing Partner.......................................A-12
SECTION 5.2 Certain Restrictions on Managing Partner's Power and Authority................A-14
SECTION 5.3 Services of Managing Partner..................................................A-15
SECTION 5.4 Liability of Managing Partner and Its Affiliates..............................A-16
SECTION 5.5 Indemnification of Managing Partner and Its Affiliates........................A-16
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Page
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SECTION 5.6 Reporting and Legal Expenses..................................................A-17
SECTION 5.7 Administrative Costs..........................................................A-17
SECTION 5.8 Restrictions on Certain Transactions..........................................A-18
SECTION 5.9 Restriction on Voting Interests Held by Managing Partner......................A-22
SECTION 5.10 Tax Elections.................................................................A-23
SECTION 5.11 Tax Matters Partner...........................................................A-23
ARTICLE VI
RIGHTS AND OBLIGATIONS OF INVESTOR PARTNERS
SECTION 6.1 Rights of Investor Partners...................................................A-23
SECTION 6.2 Access of Investor Partners to Geophysical Data...............................A-23
SECTION 6.3 Return of Capital Contribution................................................A-24
SECTION 6.4 Meetings......................................................................A-24
SECTION 6.5 Voting Rights of Investor Partners............................................A-24
SECTION 6.6 Conduct of Meeting............................................................A-24
SECTION 6.7 General Partners Not Agents...................................................A-24
SECTION 6.8 Liabilities of Partners.......................................................A-25
ARTICLE VII
BOOKS, RECORDS, CAPITAL ACCOUNTS, REPORTS, AND BANK ACCOUNTS
SECTION 7.1 Books, Records, and Capital Accounts..........................................A-25
SECTION 7.2 Reports.......................................................................A-27
SECTION 7.3 Bank Accounts.................................................................A-28
ARTICLE VIII
ASSIGNMENT AND PURCHASE OF INTERESTS;
SUBSTITUTION
SECTION 8.1 Assignments by Investor Partners..............................................A-29
SECTION 8.2 Assignment by Managing Partner................................................A-30
SECTION 8.3 Right of Presentment..........................................................A-31
SECTION 8.4 Notices of and Limitations on Right of Presentment............................A-32
SECTION 8.5 Cessation of Right of Presentment.............................................A-33
SECTION 8.6 Removal of Managing Partner...................................................A-33
ARTICLE IX
DISSOLUTION, RECONSTITUTION, LIQUIDATION, AND TERMINATION
SECTION 9.1 Dissolution...................................................................A-34
SECTION 9.2 Covenant Not to Withdraw......................................................A-35
SECTION 9.3 Reconstitution................................................................A-35
SECTION 9.4 Liquidation and Termination...................................................A-37
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Page
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ARTICLE X
REPRESENTATIONS AND WARRANTIES OF THE MANAGING PARTNER AND POWER OF ATTORNEY
SECTION 10.1 Representations and Warranties of the Managing Partner........................A-39
SECTION 10.2 Power of Attorney.............................................................A-39
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Notices.......................................................................A-40
SECTION 11.2 Amendment.....................................................................A-40
SECTION 11.3 Partition.....................................................................A-41
SECTION 11.4 Entire Agreement..............................................................A-41
SECTION 11.5 Severability..................................................................A-41
SECTION 11.6 No Waiver.....................................................................A-41
SECTION 11.7 Evidence of Interest..........................................................A-41
SECTION 11.8 Applicable Law................................................................A-41
SECTION 11.9 Successors and Assigns........................................................A-41
SECTION 11.10 Counterparts..................................................................A-41
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EXHIBIT A
AGREEMENT OF PARTNERSHIP
MEWBOURNE ENERGY PARTNERS -A, L.P.
THIS AGREEMENT OF PARTNERSHIP (herein called this "Agreement")
dated , , is made by and among Mewbourne Development Corporation, a
Delaware corporation ("MD" and also herein called the "Managing Partner" when
acting in its capacity as Managing Partner of the Partnership), Curtis W.
Mewbourne, a resident of Tyler, Texas (the "Organizational Partner"), and those
persons who execute or adopt this Agreement or counterparts hereof as Investor
Partners and become such (herein called the "Investor Partners"). In
consideration of the mutual covenants and agreements contained herein, the
parties hereto do hereby agree as follows:
ARTICLE I
FORMATION OF PARTNERSHIP
SECTION 1.1 Formation. Subject to the provisions of this Agreement, the
parties hereto do hereby form a limited partnership (herein called the
"Partnership") pursuant to the provisions of the Delaware Act.
SECTION 1.2 Name. The name of the Partnership shall be Mewbourne Energy
Partners__-A, L.P. Subject to all applicable laws, the business of the
Partnership may be conducted under such other name or names (including the name
of the Managing Partner) as the Managing Partner shall determine to be necessary
or desirable. The Managing Partner shall cause to be filed on behalf of the
Partnership such partnership or assumed or fictitious name certificate or
certificates or similar instruments as may from time to time be required by law.
SECTION 1.3 Business. The business of the Partnership shall be the
following: (a) to become a party to the Program Agreement; (b) to acquire Leases
from MOC and its Affiliates and from third parties in accordance with the terms
of the Program Agreement; (c) to explore, drill, develop, operate, and dispose
of such Leases; (d) to produce, collect, store, treat, deliver, market, sell, or
otherwise dispose of oil, gas, and related minerals from such Leases; and (e) to
take all such actions which may be incidental thereto as the Managing Partner
may determine. The Partnership may also purchase or acquire equipment,
processing facilities, and other property associated with such Leases and
acquire interests in and invest in joint ventures and other partnerships
(including affiliated joint ventures or affiliated partnerships) or other
entities (including corporations) that hold or are formed to acquire Leases in
Prospects if, in the judgment of the Managing Partner, such acquisitions or
investments are necessary or desirable to the acquisition by the Partnership of
Leases in Prospects or the drilling and completion of wells thereon. In
addition, the Partnership may participate in any other type of transaction
relating to Leases or Prospects or the drilling and completion of wells thereon
if the economic effect of such transactions is the same as the ownership of such
Leases or Prospects by the Partnership.
SECTION 1.4 Principal Office. The location of the principal place of
business of the Partnership shall be 3901 South Broadway, Tyler, Texas 75701.
The Managing Partner, at any time and from time to time, may change the location
of the Partnership's principal place of business and may establish such
additional place or places of business of the Partnership as the Managing
Partner shall determine to be necessary or desirable, provided notice thereof is
given to the Investor Partners within 30 days of such change or establishment.
The registered office of the Partnership in the State of Delaware shall be at
Corporation Trust Center, 1209 Orange Street, Wilmington, County of Newcastle,
Delaware 19801, and its registered agent for service of process on the
Partnership at such registered office shall be Corporation Trust Corporation.
SECTION 1.5 Names and Addresses of Partners. MD is the sole Managing
Partner of the Partnership and its address is 3901 South Broadway, Tyler, Texas
75701. The Organizational Partner's name is Curtis W. Mewbourne and his address
is 3901 South Broadway, Tyler, Texas 75701. Upon admission of Investor Partners
to the Partnership,
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the Organizational Partner will withdraw from the Partnership and his
contribution to the capital of the Partnership will be returned without
interest. The name and business, residence, or mailing address of each Investor
Partner will be maintained in the Partnership records. The date upon which each
such person became an Investor Partner shall be the date set forth in
Partnership records. The address of each Investor Partner for the purpose of
receiving notices and all other communications hereunder shall be the address
shown in the Subscription Agreement executed by such Investor Partner or such
other address as may be supplied by such Investor Partner to the Managing
Partner in the manner specified in Section 11.1.
SECTION 1.6 Term. The Partnership shall commence upon the completion of
filing for record of an initial Certificate of Limited Partnership for the
Partnership in accordance with the Delaware Act and shall continue until
terminated in accordance with Article IX.
SECTION 1.7 Filings. Upon the request of the Managing Partner, the
parties hereto shall immediately execute and deliver all such certificates and
other instruments conforming hereto as shall be necessary for the Managing
Partner to accomplish all filing, recording, publishing, and other acts
appropriate to comply with all requirements for the formation and operation of a
limited partnership under the laws of the State of Delaware and for the
formation, qualification, and operation of a limited partnership (or a
partnership in which the Investor Partners have limited liability) in all other
jurisdictions where the Partnership shall propose to conduct business.
SECTION 1.8 Title to Partnership Property. All property owned by the
Partnership, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Partnership as an entity, and no Partner, individually, shall
have any ownership of such property. The Partnership shall hold its assets in
its own name, except that its interests in Leases may be held in the name of the
Program Manager as contemplated by the Program Agreement.
SECTION 1.9 Conversion of General Partner Interests into Limited
Partner Interests. As soon as practicable after the completion of the
Partnership's drilling activities, the Interests held by the General Partners
will be converted to Limited Partner Interests. In order to accomplish such
conversion, the Managing Partner will (a) file an amended certificate of limited
partnership with the Secretary of State of the State of Delaware removing the
General Partners as general partners of the Partnership and (b) take such other
actions as are necessary or appropriate to accomplish conversion of the General
Partner Interests held by the General Partners to Limited Partner Interests.
Notwithstanding the foregoing, the Managing Partner shall not be obligated to
cause the conversion of the General Partner Interests held by the General
Partners to Limited Partner Interests, or may delay such conversion, if the
Managing Partner determines that such conversion at that time would not be in
the best interests of the Investor Partners or the Partnership; provided that if
the Managing Partner determines that such conversion would not be in the best
interests of the Investor Partners or the Partnership, the insurance coverage
limits, including umbrella policy limits, will not be reduced unless such
coverage becomes unobtainable or is only available at premiums which are
prohibitively more expensive than the premiums now being paid for such policies.
If conversion is so delayed, the Managing Partner will continue to have the
power and authority to cause such conversion at any time during the term of the
Partnership if the Managing Partner determines that conversion is in the best
interests of the General Partners and the Partnership. Upon filing the amended
certificate of limited partnership reflecting the conversion of the General
Partner Interests held by General Partners to Limited Partner Interests, the
conversion will be effective and thereafter each General Partner will have the
rights and obligations of a Limited Partner and will be entitled to limited
liability to the extent provided by the Delaware Act; provided that those
General Partners will remain liable to the Partnership for their proportionate
shares of Partnership obligations and liabilities arising prior to the
conversion of their General Partner Interests to Limited Partner Interests.
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ARTICLE II
DEFINITIONS AND REFERENCES
SECTION 2.1 Defined Terms. When used in this Agreement and unless the
context otherwise requires, the following terms shall have the respective
meanings set forth below:
"Administrative Costs" shall mean all customary and routine expenses
incurred by the Managing Partner or its Affiliates for the conduct of the
administration of the Partnership or the Drilling Program, including: legal,
finance, accounting, secretarial, travel, office rent, telephone, data
processing, and other items of a similar nature.
"Adjusted Capital Account" shall mean the capital account maintained
for each Partner as provided in Section 7.1(c) as of the end of each fiscal
year, (a) increased by (i) an amount equal to such Partner's allocable share of
the Partnership's Minimum Gain, as computed on the last day of such fiscal year
in accordance with Treasury Regulation 1.704-2(g), and (ii) the amount of
Partnership indebtedness allocable to such Partner under Section 752 of the Code
with respect to which such Partner is personally liable, and (b) reduced by (i)
depletion deductions reasonably expected to be allocated to such Partner in
subsequent years and charged to such Partner's capital account as provided in
Section 7.1(c), (ii) the amount of all losses and deductions reasonably expected
to be allocated to such Partner in subsequent years under Section 704(e)(2) or
706(d) of the Code and Treasury regulation 1.751-1(b)(2)(ii), and (iii) the
amount of all distributions reasonably expected to be made to such Partner to
the extent that they exceed offsetting increases in such Partner's capital
account that are reasonably expected to occur during (or prior to) the year in
which such distributions are reasonably expected to be made.
"Affiliate" shall mean with respect to another person, (a) any person
directly or indirectly owning, controlling, or holding with power to vote 10% or
more of the outstanding voting securities of or equity interests in such other
person; (b) any person 10% or more of whose outstanding voting securities or
equity interests are directly or indirectly owned, controlled, or held with
power to vote by such other person; (c) any person directly or indirectly
controlling, controlled by, or under common control with such other person; (d)
any employee, officer, director, or partner of such other person; and (e) any
company for which any such officer, director, or partner acts in any such
capacity. For purposes of this Agreement an Affiliate of MD shall include
Affiliated Programs.
"Affiliated Program" shall mean a drilling, producing property, income,
royalty, or other program (whether in the form of a partnership, joint venture,
or otherwise) for or of which the Managing Partner or an Affiliate thereof
serves as manager or managing partner or acts in a similar capacity.
"Agreement" shall mean this Agreement of Partnership, as amended from
time to time.
"Base Rate" shall mean an effective rate per annum equal to the lesser
of the following rates of interest (a) the highest rate of interest publicly
announced from time to time by NationsBank Texas, N.A., Dallas, Texas, as its
prime rate for its largest and most credit worthy domestic corporate customers
for 90 day unsecured loans, plus 1%, or (b) the "Maximum Legal Rate." The term
"Maximum Legal Rate" means the maximum rate of interest from time to time
permitted to be contracted for, charged, or collected by the specified recipient
under any laws from time to time applicable to the indebtedness of the payor to
the recipient with respect to the amounts subject to such Base Rate.
"Capital Contribution" shall mean for any particular Partner the total
dollar amount of the contribution to the capital of the Partnership made by such
Partner.
"Capital Contributions" shall mean the aggregate amount of the Capital
Contribution paid by all Partners to the Partnership.
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"Capital Expenditures" shall mean those costs associated with property
acquisition and the drilling and completion of oil and gas wells which are
generally accepted as capital expenditures pursuant to the provisions of the
Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Delaware Act" shall mean the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time, and any successor to such act.
"Direct Costs" shall mean all actual and necessary costs directly
incurred for the benefit of the Drilling Program and generally attributable to
the goods and services provided to the Drilling Program by parties other than
the Managing Partner or its Affiliates. Direct costs shall not include any cost
otherwise classified as Organization and Offering Expenses, Administrative
Costs, Operating Costs, or Lease Acquisition Costs. Direct Costs include
Reporting and Legal Expenses and may include the cost of services provided by
the Managing Partner or its Affiliates if such services are provided pursuant to
written contracts and in compliance with the terms set forth under Section 5.10
hereof.
"Drilling Program" shall mean the drilling program to be conducted by
the Partnership, MOC, and MD pursuant to the Program Agreement and the rights,
interests, and properties of MD and the Partnership under or subject to the
Program Agreement.
A "farmout" shall mean an agreement whereby the owner of the Lease
agrees to assign his interest in certain specific acreage to the assignees,
retaining some interest such as an Overriding Royalty Interest, an oil and gas
payment, offset acreage, or other type of interest, subject to the drilling of
one or more specific wells or other performance as a condition of the
assignment.
"General Partner" shall mean each person who executes or adopts this
Agreement or a counterpart hereof as a General Partner and is accepted by the
Managing Partner as such and any person who becomes a substituted General
Partner in accordance with the terms hereof. General Partner shall not include
the Managing Partner except to the extent that the Managing Partner owns General
Partner Interests.
"General Partner Interest" shall mean a General Partner's unit of
interest in the Partnership representing a $1,000 Capital Contribution.
"Horizon" shall mean a zone of a particular formation; that part of a
formation of sufficient porosity and permeability to form a petroleum reservoir.
"Independent Expert" shall mean a person with no material relationship
to the Managing Partner or its Affiliates who is qualified and who is in the
business of rendering opinions regarding the value of oil and gas properties
based upon the evaluation of all pertinent economic, financial, geologic, and
engineering information available to the Managing Partner.
"Interest" shall mean an Investor Partner's unit of interest in the
Partnership representing a $1,000 Capital Contribution.
"Investor Partners" shall mean the General Partners and the Limited
Partners and shall not include the Managing Partner, except to the extent that
the Managing Partner owns Interests.
"Lease" shall mean an oil and gas lease or an oil, gas, and mineral
lease; a Working Interest; an interest (including certain non-consent interest)
arising under a pooling order or operating agreement; an interest acquired under
a farmout; operating rights under governmental tracts; a mineral interest,
royalty, or other interest in and to oil, gas, and
A-4
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related hydrocarbons (or a contractual right to acquire or earn such an
interest) or an undivided interest therein or portion thereof (including those
covering only certain Horizons or depths), together with all easements, permits,
licenses, servitudes, and rights-of-way situated upon or used or held for future
use in connection with the exploration, development, or operation of such
interest.
"Lease Acquisition Costs" shall mean, when used to describe the costs
of any Lease, the sum of (a) all monetary consideration paid or given for such
Lease to a non-Affiliate of the Managing Partner, including but not limited to
lease bonuses and advance rentals paid to a non-Affiliate of the Managing
Partner, (b) all costs of lease acquisition and title examination, including but
not limited to curing or defending title, title insurance or examination costs,
brokerage commissions, the fees and wages of landmen and lease brokers and their
expenses, filing fees, recording costs, transfer taxes, and like charges paid in
connection with the acquisition of such Lease, (c) all delay rentals and other
similar payments and ad valorem taxes paid with respect to such Lease, (d) such
portion as may be allocated to such Lease in accordance with generally accepted
accounting principles and industry standards of all reasonable, necessary, and
actual costs and expenses of MD or its Affiliates for geological, geophysical,
seismic, land, engineering, drafting, accounting, legal, and other like services
together with related administrative and general overhead costs involved in
lease acquisition and Prospect evaluation including such costs and expenses
which could otherwise be classified hereunder as Administrative Costs, (e) such
portion as may be allocated to such Lease in accordance with generally accepted
accounting principles and industry standards of all costs and expenses incurred
in the acquisition of farmouts, subleases, pooling orders, or other oil and gas
interests, (f) interest and points actually incurred on funds borrowed to pay
any of the costs and expenses described in clauses (a) through (e) above
calculated from the date of their incurrence until the date of their
reimbursement by the Drilling Program at the time a Lease is acquired by the
Drilling Program, and (g) with respect to Leases held on the date hereof by or
acquired thereafter by MD or an Affiliate thereof, in which an interest is
transferred to the Participants pursuant to the Program Agreement, the costs of
such transfer; provided that the expenses described in clauses (c), (d), (e),
and (f) shall have been incurred by MOC or its Affiliates not more than 36
months prior to the acquisition by the Drilling Program of such Lease; and
provided further, that such time limitation shall not be applicable to Leases
having a primary term of five or more years. Lease Acquisition Costs of a Lease
shall not include any costs or expenses otherwise allocable herein to such Lease
and which represent costs or expenses incurred in connection with the past
drilling of wells which are not producers of sufficient quantities of oil or
natural gas to make commercially reasonable their continued operation.
"Limited Partner" shall mean each person who executes or adopts this
Agreement or a counterpart hereof as a Limited Partner and is accepted by the
Managing Partner as such and any person who becomes a substituted Limited
Partner in accordance with the terms hereof. Limited Partner shall not including
the Managing Partner, except to the extent that the Managing Partner owns
Limited Partner Interests.
"Limited Partner Interest" shall mean a Limited Partner's unit of
interest in the Partnership representing a $1,000 Capital Contribution.
"Majority in Interest" shall mean, with respect to any agreement or
vote of the Investor Partners, Investor Partners whose combined Interests, at
the time of determination thereof, exceed 50% of the total Interests held of
record by Investor Partners who are eligible to participate in such agreement or
vote.
"Managing Partner" shall mean MD which will serve as the initial
managing partner of the Partnership, and any person who becomes a substituted
Managing Partner in accordance with the terms hereof.
"Minimum Gain" shall mean the amount of gain that would be realized by
the Partnership if it disposed of (in a taxable transaction) all Partnership
properties which are subject to non-recourse liabilities of the Partnership in
full satisfaction of such liabilities, computed in accordance with the
provisions of Treasury regulation 1.704-2(b)(2).
"MOC" shall mean Mewbourne Oil Company, a Delaware corporation.
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"Operating Agreement" shall mean a Model Form Operating Agreement based
upon the American Association of Petroleum Landmen Form 610-1989 and among the
other attached exhibits thereto, an accounting procedure for joint operations
issued by the Council of Petroleum Accountants Societies of North America, each
of which containing modifications that are customary and usual for the
geographic area in which the Partnership intends to conduct operations.
"Operating Costs" shall mean all expenditures made and costs incurred
in producing and marketing oil and gas from completed wells, including, in
addition to labor, fuel, repairs, hauling, materials, supplies, utility charges,
and other costs incident to or therefrom, ad valorem and severance taxes,
insurance and casualty loss expense, and compensation to well operators or
others for services rendered in conducting such operations.
"Organizational Partner" shall mean Curtis W. Mewbourne, a resident of
Tyler, Texas, who has agreed to serve as an initial limited partner.
"Overriding Royalty Interest" shall mean an interest in the oil and gas
produced pursuant to a specified Lease or Leases, or the proceeds from the sale
thereof, carved out of the Working Interest, to be received free and clear of
all costs of development, operation, or maintenance.
"Partners" shall mean the Managing Partner and the Investor Partners.
"Partnership" shall have the meaning assigned to such term in Section
1.1.
"Partnership Year" shall mean a period of one year with the first
Partnership Year commencing as of the date the Investor Partners are first
admitted to the Partnership and ending immediately prior to the anniversary of
such date and with each succeeding Partnership Year commencing as of the
anniversary of such date and ending immediately prior to the next succeeding
anniversary date.
"person" shall refer to any natural person, partnership, corporation,
association, trust, or other legal entity.
"Production Purchase or Income Program" shall mean any program whose
investment objective is to directly acquire, hold, operate, and/or dispose of
producing oil and gas properties. Such a program may acquire any type of
ownership interest in a producing property, including but not limited to,
Working Interests, royalties, or production payments. A program which spends at
least 90% of Capital Contributions and funds borrowed (excluding Organization
and Offering Expenses) in the above described activities is presumed to be a
Production Purchase or Income Program.
"Program Agreement" shall mean the Program Agreement by and among the
Partnership, MD, and MOC.
"Program Manager" shall mean MOC and any person who becomes the
successor Program Manager in accordance with the Program Agreement.
"Program Well" shall mean any oil and gas well in which the
Participants have an interest pursuant to the Program Agreement.
"Prospect" shall mean an area covering lands which, in the opinion of
the Program Manager, contains subsurface structural or stratigraphic conditions
making it susceptible to the accumulation of oil or gas in commercially
productive quantities at one or more Horizons. The area, which may be different
for different Horizons, shall be designated by the Program Manager in writing
prior to the conduct of Partnership operations and shall be enlarged or
contracted from time to time on the basis of subsequently acquired information
to define the anticipated limits of the associated oil and gas reserves and to
include all acreage encompassed therein. A "Prospect" with respect to a
particular Horizon may be limited to the minimum area permitted by state law or
local practice, whichever is applicable, to protect
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against drainage from adjacent wells if the well to be drilled by the
Partnership is to a Horizon containing Proved Reserves.
"Proved Reserves" shall mean those quantities of crude oil, natural
gas, and natural gas liquids which, upon analysis of geological and engineering
data, appear with reasonable certainty to be recoverable in future years from
known oil and gas reservoirs under existing economic and operating conditions.
Proved Reserves are limited to those quantities of oil and gas which can be
expected, with little doubt, to be recoverable commercially at current prices
and costs, under existing regulatory practices and with existing conventional
equipment and operating methods. Depending upon their status or development,
Proved Reserves will be subdivided into the following classifications and have
the following definitions.
(a) "Proved Developed Reserves" shall mean Proved Reserves which can be
expected to be recovered through existing wells with existing equipment and
operating methods. This classification shall include:
(i) "Proved Developed Producing Reserves," which are Proved
Developed Reserves which are expected to be produced from existing
completion intervals now open for production in existing wells; and
(ii) "Proved Developed Non-Producing Reserves," which are
Proved Developed Reserves which exist behind the casing of existing
wells, or at minor depths below the present bottom of such wells, which
are expected to be produced through these wells in the predictable
future, where the cost of making oil and gas available for production
is relatively small compared to the cost of a new well.
Additional oil and gas expected to be obtained through the
application of improved recovery techniques are included as Proved
Developed Reserves only after testing by a pilot project or after the
operation of an installed program has confirmed through production that
increased recovery will be achieved.
(b) "Proved Undeveloped Reserves" shall mean all reserves which are
expected to be recovered from additional wells on undrilled acreage or from
existing wells where a relatively major expenditure is required for
recompletion. Such reserves on undrilled acreage are limited to those drilling
units offsetting productive units which are reasonably certain of production
when drilled. Proved Reserves for other undrilled units are claimed only where
it can be demonstrated with reasonable certainty, based on accepted geological,
geophysical, and engineering studies and data, that there is continuity of
reservoir from an existing productive formation. No estimates for Proved
Undeveloped Reserves are attributable to any improved recovery technique
contemplated for any acreage, unless the techniques to be employed have been
proved effective by actual tests in the same areas and reservoir.
"Reconstituted Partnership" shall mean the Partnership, as
reconstituted by a Majority in Interest of the Investor Partners pursuant to
Section 9.3.
"Reporting and Legal Expenses" shall mean all third party accounting
fees, costs, and expenses associated with obtaining audits of books and records,
third party engineering fees, costs, and expenses associated with annual reserve
reports and third party attorney's fees and other legal fees, costs, and
expenses associated with matters that are attributable to the Drilling Program's
or the Partnership's business.
"Right of Presentment" shall mean the right of Investor Partners to
request the Managing Partner to purchase for cash all of that Investor Partner's
Interests, subject to certain conditions.
"Roll-Up" shall mean a transaction involving the acquisition, merger,
conversion, or consolidation, either directly or indirectly, of the Partnership
and the issuance of securities of a Roll-Up Entity. Such term does not include a
transaction involving securities of any Partnership that have been listed for at
least 12 months on a national exchange or traded through the National
Association of Securities Dealers Automated Quotation National Market System or
a
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transaction involving the conversion to corporate, trust, or association form
of only the Partnership if, as a consequence of the transaction, there will be
no significant adverse change in any of the following:
(i) voting rights;
(ii) the term of existence of the Partnership;
(iii) Sponsor compensation; or
(iv) the Partnership's investment objectives.
"Roll-Up Entity" shall mean a partnership, trust, corporation, or other
entity that would be created or survive after the successful completion of a
proposed Roll-Up transaction.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sharing Ratio" shall mean for any Partner the proportion obtained by
dividing (i) the amount of such Partner's Capital Contribution to the
Partnership by (ii) the sum of all Capital Contributions paid by the Partners to
the Partnership; provided that in the event of an assignment (voluntarily, by
operation of law or this Agreement, or otherwise) by an Investor Partner of
Interests in the Partnership (other than an assignment solely of an interest in
distributions of Partnership revenues), the Sharing Ratio of such Investor
Partner shall be proportionately reduced, based upon the number of Interests
assigned compared to the total number of Interests owned by such Investor
Partner prior to such assignment, and the assignee of such Interests shall
succeed to a proportionate share of the Sharing Ratio of his assignor that is
attributable to the Interests transferred to such assignee.
"Simulated Basis" shall have the meaning assigned to such term in
Section 7.1(c).
"Simulated Depletion" shall have the meaning assigned to such term in
Section 7.1(c).
"Simulated Gain" shall have the meaning assigned to such term in
Section 7.1(c).
"Simulated Loss" shall have the meaning assigned to such term in
Section 7.1(c).
"Sponsor" shall mean any person directly or indirectly instrumental in
organizing, wholly or in part, the Partnership, or any person who will manage or
is entitled to manage or participate in the management or control of the
Partnership. "Sponsor" includes the Managing Partner and any other person who
actually controls or selects any person who controls 25% or more of the
exploratory, developmental, or producing activities of the Partnership, or any
segment thereof, even if that person had not entered into a contract at the time
of formation of the Partnership. "Sponsor" does not include wholly independent
third parties such as attorneys, accountants, and underwriters whose only
compensation is for professional services rendered in connection with the
offering of the Interests. Whenever the context of this Agreement so requires,
the term "Sponsor" shall be deemed to include Affiliates of the person deemed to
be a Sponsor.
"Subscription Agreement" shall mean, with respect to an Investor
Partner, the subscription agreement executed and delivered by such Investor
Partner in connection with his subscription to purchase Interests and containing
certain representations, warranties, covenants, and agreements of such Investor
Partner.
"Super Majority in Interest" shall mean, with respect to any agreement
or vote of Investor Partners, Investor Partners whose combined Interests, at the
time of the determination thereof, exceed 66% of the total Interests held by
Investor Partners who are eligible to participate in such agreement or vote.
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"Valuation Date" shall mean for purposes of the exercise of the Right
of Presentment granted to Investor Partners pursuant to Section 8.3, December 31
of the year immediately preceding the year in which the Right of Presentment is
being exercised.
"Working Interest" shall mean an interest in an oil and gas leasehold
which is subject to some portion of the costs of development, operation, or
maintenance.
SECTION 2.2 References and Titles. All references in this Agreement to
articles, sections, subsections, and other subdivisions refer to corresponding
articles, sections, subsections, and other subdivisions of this Agreement unless
expressly provided otherwise. Titles appearing at the beginning of any of such
subdivisions are for convenience only and shall not constitute part of such
subdivisions and shall be disregarded in construing the language contained in
such subdivisions. The words "this Agreement," "this instrument," "herein,"
"hereof," "hereby," "hereunder," and words of similar import refer to this
Agreement as a whole and not to any particular subdivision unless expressly so
limited. Pronouns in masculine, feminine, and neuter genders shall be construed
to include any other gender, and words in the singular form shall be construed
to include the plural and vice versa, unless the context otherwise requires.
ARTICLE III
CAPITALIZATION
SECTION 3.1 Capital Contributions of Investor Partners. Each subscriber
shall be accepted as an Investor Partner only after (a) such subscriber has
deposited or has had deposited on its behalf in a segregated escrow account at
NationsBank Texas, N.A., Dallas, Texas, or another federally insured institution
designated by MD, the full amount of the Capital Contribution of such subscriber
in cash and (b) the Managing Partner has approved and accepted the Subscription
Agreement executed by such subscriber. By executing and delivering the
Subscription Agreement, upon its acceptance, each Investor Partner shall be
irrevocably committed to contribute to the capital of the Partnership the amount
stated in such Investor Partner's Subscription Agreement as the Capital
Contribution of such Investor Partner. If the sum of Capital Contributions
committed and accepted at or prior to the end of the subscription period is at
least $1,000,000, the Managing Partner may cause all subscribers who have been
approved by the Managing Partner to be admitted to the Partnership as Limited
Partners or General Partners, and the Capital Contributions shall be paid to the
Partnership. If less than $1,000,000 of Capital Contributions shall have been
committed by the Investor Partners and accepted at the end of the subscription
period, the amount of the Capital Contribution paid by each subscriber shall be
returned with any interest earned thereon.
SECTION 3.2 Contributions of Managing Partner. The Managing Partner
shall not be required to make any contribution to the capital of the
Partnership. Although the Managing Partner is personally liable under applicable
laws for the debts and obligations of the Partnership, all such debts and
obligations shall be paid or discharged first with Partnership assets (including
insurance proceeds) before the Managing Partner shall be obligated to pay or
discharge any such debt or obligation with its personal assets.
SECTION 3.3 Return of Contributions. Except as otherwise provided in
this Agreement, no interest shall accrue on any Capital Contributions to the
Partnership. No Partner shall have the right to withdraw or to be repaid any
capital contributed by such Partner except as otherwise specifically provided in
this Agreement or required by law.
SECTION 3.4 Additional Contributions. No Investor Partner shall be
required or obligated (a) to contribute any capital to the Partnership other
than as provided in Section 3.1 hereof or (b) to lend any funds to the
Partnership. The Interests are nonassessable; however, General Partners are
liable, in addition to their Capital Contributions, for Partnership obligations
and liabilities represented by their ownership of interests as general partners,
in accordance with the Delaware Act.
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ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
SECTION 4.1 Allocation Among Partners. Except as provided in Section
4.2 below, each Partner shall share Partnership items of costs, expenditures,
deductions (other than depletion), credits, income, revenues, gain, loss, and
distributions allocated, charged, or credited to the Partners hereunder in
accordance with the proportion that the Sharing Ratio of such Investor Partner
bears to the aggregate Sharing Ratios of all Partners.
SECTION 4.2 Allocations.
(a) Except as provided in subsections (b) through (f) below, all costs
and revenues (including without limitation, revenues derived by the Partnership
from, and distributed to the Partnership by, the Drilling Program) of the
Partnership and all items of income, gain, amount realized, loss, deduction,
recapture, and credit for purposes of any applicable federal, state, or local
income tax law, rule, or regulation shall be allocated to the Partners in
accordance with their respective Sharing Ratio.
(b) All costs incurred by the Partnership in connection with the
performance of any special services requested by a Partner and any tax
deductions relating thereto shall be allocated 100% to the Partner requesting
such services.
(c) All interest income directly or indirectly resulting from the
investment of the Investor Partners' Capital Contributions following the payment
thereof to the Partnership shall be allocated 100% to the Investor Partners, and
shall be allocated among such Investor Partners proportionately based on each
Investor Partner's respective cash contributions actually paid to the
Partnership.
(d) Cost and percentage depletion deductions and the gain or loss on
the sale or other disposition of property the production from which is or would
be (in the case of nonproducing properties) subject to depletion (herein
sometimes called "depletable property") shall be computed separately by the
Partners rather than the Partnership. For purposes of making such computations
the Partnership's adjusted basis in each depletable property shall be allocated
under Section 613A(c)(7)(D) of the Code to the Partners in accordance with their
respective Sharing Ratio. The amount realized on the sale or other disposition
of each such property shall be allocated to the Partners in proportion to each
Partner's respective share of the revenues from the sale or other disposition of
such property provided for in Section 4.2(a). For purposes of allocating amounts
realized upon any such sale or disposition which are deemed to be received for
federal income tax purposes and which are attributable to Partnership
indebtedness or indebtedness to which the depletable property is subject at the
time of such sale or disposition, such amounts shall be allocated in the same
manner as Partnership revenues used for the repayment of such indebtedness would
have been allocated under Section 4.2(f).
(e) Notwithstanding any other provision of this Section 4.2 to the
contrary, if during any taxable year of the Partnership the allocation of any
loss or deduction (net of any income or gain) to any Partner (the "Deficit
Partner") would cause or increase a deficit balance in the Deficit Partner's
Adjusted Capital Account as of the end of such taxable year, only the amount of
such loss or deduction that reduces the balance to zero shall be allocated to
the Deficit Partner and the remaining loss or deduction shall be allocated to
the Partners whose Adjusted Capital Accounts have positive balances remaining at
such time in proportion to such positive balances. After any such allocation,
any Partnership income or gain (or amount realized in excess of Simulated Basis)
that would otherwise be allocated to the Deficit Partner for any fiscal year
under this Section 4.2 which is in excess of the cash distributions to the
Deficit Partner for such fiscal year shall be allocated instead to the Partners
to whom the Deficit Partner's share of losses and deductions were allocated
under the preceding sentence until the amount of such income or gain (or amount
realized) so allocated equals the amount of loss or deduction previously so
allocated to such other Partner.
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(f) Notwithstanding the foregoing provisions of this Section 4.2, prior
to making any other allocation under this Section 4.2, the Partnership shall
allocate the following items of income to the Partners:
(i) Pursuant to section 1.704-2(f) of the Treasury
Regulations (relating to minimum gain chargebacks), if there is a net decrease
in Minimum Gain for such year (or if there was a net decrease in Minimum Gain
for a prior fiscal year and the Partnership did not have sufficient amounts of
profit during prior years to allocate among the Partners under this Section
4.2(f)(1), then items of Partnership income or revenue shall be allocated,
before any other allocation is made pursuant to the PRECEDING provisions of this
Section 4.2 for such year, to each Partner in an amount equal to such Partner's
share of the net decrease in such minimum gain (as determined under section
1.704-2(g)(2) of the Treasury Regulations).
(ii) Pursuant to section 1.704-1(b)(2)(ii)(d) of the Treasury
Regulations (relating to "qualified income offsets"), items of Partnership
income or revenue shall be allocated, before any other allocation is made
pursuant to the PRECEDING provisions of this Section 4.2 for such year, among
the Partners with deficit balances in their Adjusted Capital Accounts (as
determined, after giving effect to all adjustments attributable to the
allocations provided for in Section 4.2(f)(1) hereof and as increased by any
amounts which such Partner is deemed obligated to restore under sections 1.704-1
and 1.704-2 of the Treasury Regulations but before giving effect to any
adjustment attributable to other allocations provided for in succeeding
provisions of this Section 4.2) in amounts and the manner sufficient to
eliminate such deficit balances as quickly as possible.
SECTION 4.3 Distributions.
(a) All interest earned by the Partnership as the result of the
investment of the Partners' Capital Contributions following the payment thereof
to the Partnership shall be distributed periodically to the Partners at such
time or times as the Managing Partner shall in its discretion determine.
(b) At least quarterly, all cash funds of the Partnership (other than
interest as described in Section 4.3(a) above, borrowed funds, if any, and
Capital Contributions) which the Managing Partner reasonably determines are not
needed for the payment of existing or anticipated Partnership obligations and
expenditures shall be distributed to the Partners. All cash funds of the
Partnership to be distributed to the Partners shall be distributed to the
Partners in the same respective percentages as the revenues from which such cash
funds are derived are allocated to such Partners pursuant to Section 4.2 (after
deducting therefrom the costs charged to such Partners pursuant to Section 4.2).
In addition to restrictions set forth in Section 5.2(a), in no event, shall
funds be advanced or borrowed for purposes of distributions, if the amount of
such distributions would exceed the Partnership's accrued and received revenues
for the previous four quarters, less paid and accrued operating costs with
respect to such revenues. The determinations of such revenues and costs shall be
made in accordance with generally accepted accounting principles consistently
applied. Cash distributions from the Partnership to the Managing Partner shall
only be made in conjunction with distributions to Investor Partners and only out
of funds properly allocated to the Managing Partner's account.
(c) Any distribution in liquidation of a Partner's interest in the
Partnership other than pursuant to Section 8.3, Section 8.6, Section 9.3, or
Section 9.4 shall be in an amount of cash or fair market value of property equal
to the positive capital account balance of such Partner at the time his interest
is liquidated, after such capital account balance has been adjusted in
accordance with Section 7.1(c) and the applicable Treasury Regulations under
Section 704(b) of the Internal Revenue Code and shall be made by the later of
(i) the end of the Partnership taxable year in which such liquidation occurs or
(ii) 90 days after the date of such liquidation. No Partner with a deficit
balance in his or its capital account after a distribution in liquidation of
such Partner's interest in the Partnership shall be liable to the Partnership
for such deficit balance.
(d) In the event an amount of Partnership funds equal to the total
Capital Contributions of the Partners has not been expended or committed for
expenditure within 12 months after the admission of the Investor Partners to
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the Partnership, the Managing Partner shall distribute, as a return of capital,
to the Partners, proportionately in accordance with their respective Sharing
Ratios as of the date of the Investor Partners' admission to the Partnership,
the amount of such unexpended and uncommitted Partnership funds (together with a
proportionate amount of the Management Fees), after deducting therefrom an
amount that the Managing Partner reasonably determines will be equal to the
operating capital to be required by the Partnership that will not be provided by
anticipated revenues from Partnership operations.
SECTION 4.4 Allocations on Transfers. In the event of an assignment of
a Partner's interest in the Partnership pursuant to Article VIII, deductions,
credits, and income of the Partnership for federal, state, and local income tax
purposes shall, unless otherwise required by applicable Treasury Regulations, be
allocated between the assignor and assignee based on the number of days of the
year during which each party owned such interest.
ARTICLE V
MANAGEMENT
SECTION 5.1 Power and Authority of Managing Partner. The Partners
hereby designate MD as the Managing Partner of the Partnership and, except as
provided by Section 5.2 and elsewhere in this Agreement and except as otherwise
provided by applicable law, hereby delegate to the Managing Partner full and
exclusive power and authority on behalf of the Partnership to manage, control,
administer, and operate the properties, business, and affairs of the Partnership
and to do or cause to be done any and all acts deemed by the Managing Partner to
be necessary or appropriate thereto. The scope of such power and authority shall
encompass all matters in any way connected with such business or incident
thereto, including without limitation, the power and authority:
(a) To enter into the Program Agreement and to purchase or otherwise
acquire on behalf of the Partnership Leases as provided in the Program
Agreement;
(b) To purchase or otherwise acquire other real or personal property of
every nature considered necessary or appropriate to carry on and conduct the
business of the Partnership;
(c) To borrow monies for the business of the Partnership and from time
to time to draw, make, execute, and issue promissory notes and other negotiable
or nonnegotiable instruments and evidences of indebtedness; to secure the
payment of the sums so borrowed and to mortgage, pledge, or assign in trust all
or any part of the property of the Partnership; to assign any monies owing or to
be owing to the Partnership; and to engage in any other means of financing
customary in the oil and gas industry; provided that any such financing shall
provide that the lender has recourse only against Partnership assets and not
against any Investor Partner individually;
(d) To enter into any agreement for the sharing of profits, joint
venture, or partnership with any person, firm, corporation, or government or
agency thereof engaged in any business or transaction in which the Partnership
is authorized to engage, or any business or transaction capable of being
conducted, so as to directly or indirectly benefit the Partnership, and to cause
the obligations of the Partnership thereunder to be performed;
(e) To explore and prospect by geological, geophysical, or other
methods for the location of anomalies or other indications favorable to the
accumulation of oil and gas, including specifically the power to contract with
third parties for such purposes;
(f) To maintain, explore, develop, operate, manage, and defend
Partnership property and to drill, test, plug and abandon or complete and equip,
rework, and recomplete any number of wells on Partnership Leases for the
production of oil and gas located thereunder, and to contract with third parties
for such purposes, to carry out a program or programs of secondary recovery on
Partnership property, and to do any and all other things necessary or
appropriate
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to carry out the terms and provisions of this Agreement which would or might be
done by a normal and prudent operator in the exploration, development,
operation, and management of its own property, including without limitation,
making consent or non-consent elections under any applicable joint operating
agreement;
(g) To enter into and execute leases, drilling contracts, farmout
agreements, farmin contracts, dry and bottom hole and acreage contribution
letters, participation agreements, and any other agreements customarily employed
in the oil and gas industry in connection with the acquisition, sale,
exploration, development, or operation of oil and gas properties, agreements as
to rights-of-way and any and all other instruments or documents considered by
the Managing Partner to be necessary or appropriate to carry on and conduct the
business of the Partnership, for such consideration and on such terms as the
Managing Partner in its sole discretion may determine, and to cause the
obligations of the Partnership thereunder to be performed;
(h) To sell the production accruing to the Leases acquired by the
Partnership and to execute gas sales contracts, casinghead gas contracts,
transfer orders, division orders, or any other instruments in connection with
the sale of production from the Partnership's interest in any property;
(i) To farmout, sell, assign, convey, or otherwise dispose of, for such
consideration and upon such terms and conditions as the Managing Partner in its
sole discretion may determine, all or any part of the Partnership property, any
interest therein, or any interest payable therefrom, and in connection therewith
to execute and deliver such deeds, assignments, and conveyances containing such
warranties as the Managing Partner may determine;
(j) To employ on behalf of the Partnership agents, employees, managers,
consultants, accountants, lawyers, geologists, geophysicists, engineers,
landmen, clerical help, and such other assistance and services as the Managing
Partner may deem proper and to pay therefor such remuneration and compensation
as the Managing Partner may deem reasonable and appropriate;
(k) To purchase, lease, rent, or otherwise acquire or obtain the use of
machinery, equipment, tools, materials, and all other kinds and types of real or
personal property that may in any way be deemed necessary, convenient, or
advisable in connection with carrying on the business of the Partnership, and to
incur expenses for travel, telephone, telegraph, insurance, and for such other
things, whether similar or dissimilar, as may be deemed necessary or appropriate
for carrying on and performing the business of the Partnership;
(l) To pay delay rentals, shut-in royalty payments, property taxes, and
any other amounts necessary or appropriate to the maintenance or operation of
any Partnership property;
(m) To make and enter into such agreements and contracts with such
parties and to give such receipts, releases, and discharges with respect to any
and all of the foregoing and any matters incident thereto as the Managing
Partner may deem advisable or appropriate;
(n) To procure and maintain in force such insurance as the Managing
Partner shall deem prudent to serve as protection against liability for loss and
damage which may be occasioned by the activities to be engaged in by the
Partnership and the Managing Partner on behalf of the Partnership; provided,
however, that the Managing Partner shall notify the Investor Partners of any
adverse material reduction in the insurance coverage of the Partnership as soon
as possible after learning of such change and if possible at least 30 days in
advance of the change in insurance coverage, and in the event that the insurance
procured and maintained on behalf of the Investor Partners is materially
reduced, the Partnership will halt all drilling activity until such time as
comparable replacement insurance coverage is obtained;
(o) To pay, extend, renew, modify, adjust, submit to arbitration,
prosecute, defend, or compromise on behalf of the Partnership, upon such terms
as the Managing Partner may determine and upon such evidence as they may
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deem sufficient, any obligation, suit, liability, cause of action, or claim,
including a suit or claim for taxes, in favor of or against the Partnership;
(p) To quitclaim, assign, convey, surrender, release, or abandon any
Partnership property with or without consideration therefor;
(q) To make such classifications, determinations, and allocations as
the Managing Partner may deem advisable, having due regard for any relevant
generally accepted accounting principles;
(r) To enter into soliciting dealer agreements and to perform all of
the Partnership's obligations thereunder, to issue and sell Interests pursuant
to the terms and conditions of this Agreement and the Subscription Agreements,
to accept and execute on behalf of the Partnership Subscription Agreements, and
to admit original and substituted Investor Partners;
(s) To take such action as may be necessary for the safekeeping of all
funds and assets of the partnership, whether or not within the Managing
Partner's control and to employ, or permit another person to employ, such funds
or assets in any manner except for the exclusive benefit of the Partnership; and
(T) To take such other actions, execute and deliver such other
documents, and perform such other acts as may be deemed by the Managing Partner
to be appropriate to carry out the business and affairs of the Partnership.
In accomplishing all of the foregoing and except as otherwise provided
in this Agreement, the Managing Partner may, in its sole discretion, use its own
personnel, properties, and equipment or those of any of its Affiliates (subject
to Section 5.11); or the Managing Partner may hire or rent those of third
parties and may employ on a temporary or continuing basis outside accountants,
attorneys, consultants, and others on such terms as the Managing Partner deems
advisable. No person, firm, or corporation dealing with the Partnership shall be
required to inquire into the authority of the Managing Partner to take any
action or make any decision.
SECTION 5.2 Certain Restrictions on Managing Partner's Power and
Authority. Notwithstanding any other provisions of this Agreement to the
contrary, the Managing Partner shall not have the power or authority to, and
shall not do, perform, or authorize any of the following:
(a) Borrow any money in the name or on behalf of the Partnership or
otherwise do any of the acts or things provided in Section 5.1(c) if the total
amount of the borrowings or financings then outstanding made by the Managing
Partner on behalf of the Partnership (including the amount outstanding under the
Partnership's reimbursement obligation under Section 5.6) would exceed an amount
equal to 20% of the Capital Contributions of the Investor Partners; provided,
however, that the terms of any such financing shall provide that the lender has
recourse only against Partnership assets and not against any Investor Partner
individually; provided further, that the Managing Partner may borrow monies in
the name and on behalf of the Partnership even if the Capital Contributions of
the Partners have not yet been fully expended or committed for expenditure;
(b) Without having first received the prior consent of a Super Majority
in Interest of the Investor Partners, cause the Partnership to participate in a
proposed Roll-Up transaction; provided, however, the participation of the
Partnership in a proposed Roll-Up transaction shall be subject to the
restrictions set forth in Section 5.9(j);
(c) Except for a sale of all or substantially all of the assets of the
Partnership by the Managing Partner acting in its capacity as liquidator made in
connection with the liquidation and termination of the Partnership as such is
contemplated in Section 9.4, without having first received the prior consent of
a Majority in Interest of the Investor Partners, sell all or substantially all
of the assets of the Partnership other than in the ordinary course of business;
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(d) Without having first received the prior consent of a Majority in
Interest of the Investor Partners, assign the rights or obligations of the
Partnership, or, except as otherwise provided in the Program Agreement, consent
to the assignment by the Managing Partner or any Affiliate thereof of its rights
or obligations under the Program Agreement, prior to the substantial completion
of the drilling activities of the Partnership;
(e) Without having first received the prior consent of a Majority in
Interest of the Investor Partners, agree to the termination or amendment of the
Program Agreement or waive any rights of the Partnership thereunder, except for
amendments to the Program Agreement which the Managing Partner believes are
necessary or advisable to ensure that the Program Agreement conforms with any
changes in or modifications to the Code or do not adversely affect the Investor
Partners in any material respect;
(f) Guarantee in the name or on behalf of the Partnership the payment
of money or the performance of any contract or other obligation of any other
person;
(g) Bind or obligate the Partnership with respect to any matter outside
the scope of the Partnership business;
(h) Use the Partnership name, credit, or property for other than
Partnership purposes;
(i) Take any action, or permit any other person to take any action,
with respect to the assets or property of the Partnership which does not
primarily benefit the Partnership, including without limitation, the commitment
of future production or the utilization of funds of the Partnership as
compensating balances for its own benefit;
(j) Benefit from any arrangement for the marketing of oil and gas
production or other relationships affecting the property of the Managing Partner
and the Partnership, unless such benefits are fairly and equitably apportioned
among the Managing Partner and Affiliates thereof and the Partnership;
(k) Invest Partnership funds in the securities of another person except
in the following instances:
(i) investments in working interests or undivided lease
interests made in the ordinary course of the Partnership's business;
(ii) temporary investments made in compliance with Section
7.3;
(iii) investments involving less than 5% of program capital
which are a necessary and incidental part of a property acquisition
transaction; and
(iv) investments in entities established solely to limit the
Partnership's liabilities associated with the ownership or operation of
property or equipment, provided, in such instances duplicative fees and
expenses shall be prohibited; or
(l) Take any action that will:
(i) cause the Partnership to participate in any other
partnership or joint venture that will result in a duplication or
unreasonable increase in the amount of costs and expenses of the
Partnership;
(ii) Substantively alter the fiduciary and contractual
relationship between the Managing Partner and the Investor Partners as
such exists pursuant to this Agreement; or
(iii) diminish the voting rights hereunder of the Investor
Partners.
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SECTION 5.3 Services of Managing Partner. During the existence of the
Partnership, the Managing Partner shall devote such time and effort to the
Partnership business as may be necessary to promote adequately the interests of
the Partnership and the mutual interests of the Partners; however, it is
specifically understood and agreed that the Managing Partner shall not be
required to devote full time to Partnership business, and the Managing Partner
and its Affiliates may at any time and from time to time engage in and possess
interests in other business ventures of any and every type and description,
independently or with others, including without limitation, the acquisition,
ownership, exploration, development, operation, and management of oil and gas
properties for themselves and other persons and the organization and management
of other partnerships and joint ventures similar to the Partnership, and neither
the Partnership nor any Investor Partner shall by virtue of this Agreement or
the law of partnership opportunity have any right, title, or interest in or to
such independent ventures. It is specifically recognized that the Managing
Partner and its Affiliates are currently engaged in the exploration for and
production of oil and gas both for their account and for others, and nothing
herein contained shall be deemed to prevent any of them from continuing such
activities, individually, jointly with others, or as a part of any other
partnership or joint venture to which any of them is or may become a party, in
any locale, and in fields or areas of operation in which the Partnership may
likewise be active, or from dealing with the Partnership as an independent
party, nor as requiring any of them to permit the Partnership to participate in
any such operations in which any of them may be interested and each Investor
Partner hereby waives, relinquishes, and renounces any such right or claim of
participation. However, except as otherwise provided herein, the Managing
Partner and any of its Affiliates may pursue business opportunities that are
consistent with the Partnership's investment objectives for their own account
only after they have determined that such opportunity either cannot be pursued
by the Partnership because of insufficient funds or because it is not
appropriate for the Partnership under the existing circumstances.
SECTION 5.4 Liability of Managing Partner and Its Affiliates. Neither
the Managing Partner nor any of its Affiliates shall have any liability to the
Partnership or to any Partner for any loss suffered by the Partnership which
arises out of any action or inaction performed or omitted by the Managing
Partner or such Affiliate, if the Managing Partner in good faith has determined,
as of the time of the conduct or omission, that the course of conduct or
omission was in the best interests of the Partnership, the Managing Partner or
such Affiliate was acting on behalf of or performing services for the
Partnership, and that such conduct or omission did not constitute negligence or
misconduct.
SECTION 5.5 Indemnification of Managing Partner and Its Affiliates.
(a) The Partnership shall indemnify the Managing Partner and its
Affiliates against any losses, judgments, liabilities, expenses, and settlements
sustained or incurred by the Managing Partner or such Affiliate as a result of
any threatened, pending, or completed claim, action, suit, or proceeding,
whether civil, criminal, administrative, arbitrative, or investigative, any
appeal in such a claim, action, suit, or proceeding, and any inquiry or
investigation that could lead to such a claim, action, suit, or proceeding and
which in any such case relates or which otherwise arises from or is attributable
to any acts, omissions, or operations performed or omitted by the Managing
Partner or its Affiliates acting on behalf of or performing services for the
Partnership that are within the scope of its authority as set forth in this
Agreement or the Program Agreement or which otherwise relates to the activities
and business affairs of the Partnership; provided that the Managing Partner has
determined in good faith, as of the time of the conduct or omission, that the
conduct or omission was in the best interests of the Partnership and that the
conduct or omission did not constitute negligence or misconduct.
(b) Notwithstanding anything to the contrary contained in Sections 5.4
and 5.5(a), neither the Managing Partner, its Affiliates, nor any person acting
as a broker-dealer shall be indemnified by the Partnership for any losses,
liabilities, or expenses arising from or out of an alleged violation of federal
or state securities laws unless (i) there has been a successful adjudication on
the merits of each count involving alleged securities laws violations as to the
particular indemnitee and the court approves indemnification of the litigation
costs, (ii) such claims have been dismissed with prejudice on the merits by a
court of competent jurisdiction as to the particular indemnitee and the court
approves indemnification of the litigation costs, or (iii) a court of competent
jurisdiction approves a settlement of the claims
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against a particular indemnitee and finds that indemnification of the settlement
and related costs should be made, and the court considering the request for
indemnification has been advised of the position of the Securities and Exchange
Commission, and all state securities regulatory authorities in which Interests
in the Partnership were offered or sold as to indemnification for violations of
securities laws.
(c) The Partnership may purchase and maintain insurance on behalf of
the Managing Partner and its Affiliates against any liabilities asserted against
or expenses incurred by the Managing Partner and its Affiliates in connection
with Partnership or Drilling Program activities, provided that the Partnership
shall not incur the cost of that portion of any insurance, which insures the
Managing Partner or its Affiliates against any liability with respect to which
the Managing Partner and its Affiliates are denied indemnification under the
provisions of Sections 5.4 and 5.5; provided, however, that nothing contained
herein shall preclude the Partnership from purchasing and paying for such types
of insurance including extended coverage liability and casualty and workers'
compensation, as would be customary for any person owning comparable assets and
engaged in a similar business, or from naming the Managing Partner and its
Affiliates as additional insured parties thereunder, provided, that the naming
of such additional insured parties does not add to premiums payable by the
Partnership.
(d) The termination of any claim, action, suit, or proceeding by
judgment, order, settlement, conviction, or a plea of nolo contendere or its
equivalent does not alone establish that a person seeking indemnification under
this Section 5.5 is disqualified. Any person who is determined to be not
entitled to indemnification under this Section 5.5 may petition a court of
competent jurisdiction for a determination that in view of all facts and
circumstances that such person is fairly and equitably entitled to indemnity and
the Partnership shall provide such indemnity as may be determined proper by such
court; provided, however, that the court has determined that such person has met
the standard set forth in Section 5.5(a) above.
(e) Legal fees and expenses and other costs incurred as a result of a
claim described in this Section 5.5(a) shall be paid by the Partnership from
time to time in advance of the final disposition of such claim if: (i) the claim
relates to the performance or non-performance of duties or services by the
Managing Partner or its Affiliates on behalf of the Partnership; (ii) the claim
is initiated by a third party who is not an Investor Partner, or the claim is
initiated by an Investor Partner and a court of competent jurisdiction
specifically approves such advancement; and (iii) the Managing Partner or such
Affiliate undertakes to repay the advanced funds to the Partnership, together
with the applicable legal rate of interest thereon, in the event it is later
determined that the Managing Partner or such Affiliate is not entitled to
indemnification under the provisions of this Section 5.5(a).
(f) To the extent that the Managing Partner or its Affiliates are
successful on the merits or in defense of any claim, issue, or matter therein,
the Partnership shall indemnify the Managing Partner or its Affiliates, against
the expenses, including attorneys' fees, actually incurred by the Managing
Partner or such Affiliate in connection therewith.
(g) The indemnification provided by this Section 5.5 shall continue as
to the Managing Partner and its Affiliates in the event it ceases to be a
managing partner of the Partnership with respect to claims relating to the
period in which the Managing Partner was a managing partner of the Partnership
and such indemnification shall inure to the benefit of the successors and
assigns of the Managing Partner and such Affiliates.
(h) The indemnification provided by this Section 5.5 shall be made, and
shall be recoverable by the Managing Partner or its Affiliates, only out of the
tangible net assets of the Partnership and not from the Investor Partners.
SECTION 5.6 Reporting and Legal Expenses. The Partnership shall
reimburse the Program Manager and the Managing Partner and its Affiliates for
its share of the Reporting and Legal Expenses incurred by the Program Manager,
the Managing Partner, or any Affiliate thereof in managing and conducting the
business and affairs of the Drilling Program or of the Partnership, as
applicable. The Reporting and Legal Expenses reimbursed by the Partnership
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shall be determined by the party seeking reimbursement in good faith and as
being reasonable for such party. Such reimbursements shall be made periodically
throughout the term of the Partnership.
SECTION 5.7 Administrative Costs. The Partnership shall reimburse the
Program Manager and the Managing Partner and its Affiliates for all
Administrative Costs and other costs and expenses incurred by the Program
Manager, the Managing Partner, or any Affiliate thereof in managing and
conducting the business and affairs relating to the Partnership's interest in
the Drilling Program or of the Partnership, as applicable, including expenses
incurred in providing or obtaining such professional, technical, administrative,
and other services and advice as the Program Manager, the Managing Partner, or
such Affiliates may deem necessary or desirable. The general, administrative,
and other costs reimbursed by the Partnership shall be determined by the party
seeking reimbursement in good faith and as being reasonable for such party. The
amount of Administrative Costs that are to be reimbursed by the Partnership
shall be determined and allocated to the Partnership and its Drilling Program on
a basis conforming with generally accepted accounting principles and must be
supported in writing as to the application thereof and as to the amount charged.
Such reimbursements shall be made periodically throughout the term of the
Partnership. Such reimbursement obligation shall also apply to all
Administrative Costs incurred by the Program Manager, the Managing Partner or
any of its Affiliates on behalf of the Partnership or the Drilling Program from
the beginning of the calendar year in which the Partnership is formed to the
date of the admission of the Investor Partners. Regardless of the actual amount
of Administrative Costs incurred by the Managing Partner or Program Manager in
connection with the affairs of a Partnership, during any particular calendar
year the total amount of Administrative Costs allocable to the Partnership shall
not exceed the greater of (a) 3.5% of the Partnership's gross revenues from the
sale of oil and natural gas production during such year (calculated without any
deduction for Operating Costs or other costs and expenses) or (b) the sum of
$50,000 plus .25% of the Capital Contributions of the Investor Partners to the
Partnership. The above limitation on Administrative Costs shall not be
applicable to Administrative Costs otherwise allocable to the Partnership which
are extraordinary and non-recurring or to the fixed overhead fee chargeable by
an operator of Program Wells including the fixed overhead fee chargeable under
the Operating Agreement by MOC with respect to the Program Wells operated by the
Program Manager. No portion of the salaries of the directors or of the executive
officers of MOC or MD may be reimbursed as Administrative Costs.
An independent certified public accountant shall provide annually to the
Investor Partners, a written attestation to be included as part of the annual
report required pursuant to Section 7.2 wherein such accountant shall verify
that the method used to make the allocations was consistent with the method
described in this Agreement and that the total amount of costs allocated to the
Investor Partners does not materially exceed amounts actually incurred by the
Managing Partner.
SECTION 5.8 Restrictions on Certain Transactions.
(a) The Partnership may enter into contracts and agreements with the
Managing Partner and its Affiliates for the rendering of services and the sale,
rental, or lease of supplies and equipment, provided that (i) such entity is
engaged, independently of the Drilling Program and as an ordinary and ongoing
business, in the business of rendering such services or selling or leasing such
equipment and supplies to a substantial extent to other persons in the industry
in addition to programs in which the Managing Partner or its Affiliates have an
interest and (ii) the amount of the compensation, price, or rental that can be
charged to the Partnership therefor must be no less favorable to the Partnership
than that generally available (at the time the relevant contract or agreement
was entered into) from unrelated third parties in the area engaged in the
business of rendering comparable services or selling, renting, or leasing
comparable equipment and supplies which could reasonably be made available to
the Partnership. If the Managing Partner or its Affiliate is not engaged in the
business as required by clause (i) of this Section 5.10(a) above, then such
compensation, price, or rental shall be the cost of such services, equipment, or
supplies to such entity, or the competitive rate which could be obtained in the
area, whichever is less. In addition, any drilling services rendered by the
Managing Partner or its Affiliates to the Partnership shall be billed on a per
foot, per day, or per hour rate, or some combination thereof. All services for
which the Managing Partner or its Affiliates are to receive compensation shall
be embodied in written
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contracts which precisely describe the services to be rendered and all
compensation to be paid. Advance payments to the Managing Partner are
prohibited, except where necessary to secure tax benefits of prepaid drilling
costs. All contracts between the Partnership and the Managing Partner or its
Affiliates shall be terminable by the Partnership (by a vote or written consent
of a Majority in Interest of the Investor Partners) without penalty upon 60
days' written notice.
(b) The Partnership may borrow money on a non-recourse basis from the
Managing Partner or any of its Affiliates, provided that on any loans made
available by the Managing Partner or any of its Affiliates to the Partnership,
the Managing Partner or such Affiliate shall not receive interest in excess of
the lesser of (i) the maximum rate permitted by applicable law or (ii) the
effective interest rate then being paid by the Managing Partner or such
Affiliate for similar type borrowings. In no event shall any such loan bear
interest in excess of the amount which would be charged to the Partnership
(without reference to the Managing Partner's financial abilities or guaranties)
by independent third parties for the same purpose. In connection with any loans
to the Partnership by the Managing Partner or its Affiliates, the Managing
Partner or its Affiliates shall not receive points or other financing charges or
fees, regardless of the amount.
(c) The Partnership shall acquire in certain instances interests in
Prospects from the Managing Partner or its Affiliates on the terms and
conditions set forth in the Program Agreement.
(d) No Partnership Leases shall be farmed out by the Partnership unless
the Managing Partner, exercising the standard of care of a normal and prudent
operator in the management of its own property, shall determine that either (i)
the Partnership lacks sufficient funds for the drilling of a well on such Lease
and cannot obtain suitable alternative financing for such drilling, (ii) the
Lease has been downgraded by events occurring after the acquisition thereof by
the Partnership pursuant to the Program Agreement so that the drilling of a well
on such Lease would no longer be desirable for the Partnership, (iii) drilling
on such Lease would result in an excessive concentration of Partnership funds,
creating in the opinion of the Managing Partner undue risk to the Partnership
and the Investor Partners, or (iv) the best interests of the Partnership would
be served by such farmout or other disposition. The Partnership may enter into a
farmout agreement (in the capacity as either farmor or farmee) with the Managing
Partner, any of its Affiliates, provided that the Managing Partner, exercising
the standards of a normal and prudent operator in the management of its own
property, shall determine that the farmout is in the best interests of the
Partnership and that the terms of any such farmout are consistent with and in
any case no less favorable to the Partnership than those utilized in the same
geographic area for similar arrangements. The Partnership's ability to enter
into a farmout agreement with the Managing Partner or an Affiliate thereof is
subject to the same restrictions as its ability to purchase property from or
sell property to the Managing Partner or an Affiliate thereof as provided in
Section 5.8(c) and Section 5.8(f), respectively.
(e) The Partnership shall make no loans to the Managing Partner or its
Affiliates.
(f) The Partnership may sell or transfer its Leases to the Managing
Partner or its Affiliates, including Affiliated Programs, only pursuant to a
transaction which is fair and reasonable to the Partnership and then subject to
the following restrictions:
(i) A sale, transfer, or conveyance, including a farmout, of
an undeveloped Lease (i.e., a Lease not having any Proved Developed
Reserves attributable to it) from the Partnership to the Managing
Partner or any Affiliate thereof, other than an Affiliated Program,
must be made at the higher of the Lease Acquisition Costs or fair
market value.
(ii) A sale, transfer, or conveyance of a developed Lease
(i.e., a property having Proved Developed Reserves attributable to it)
from the Partnership to the Managing Partner or any Affiliate thereof,
other than an Affiliated Program in which the interest of the Managing
General Partner or its Affiliate is substantially similar to or less
than its interest in the Partnership, is not permitted except in
connection with the liquidation of the Partnership and then only at
fair market value.
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(iii) Except in connection with farmouts or joint ventures
made in compliance with the restrictions described in Section 5.8(d), a
transfer of an undeveloped Lease from the Partnership to an Affiliated
Program must be made at fair market value if the Lease has been held
for more than two years; otherwise, if the Managing Partner deems it to
be in the best interests of the Partnership, the transfer may be made
at the Lease Acquisition Costs.
(iv) Except in connection with farmouts or joint ventures
made in compliance with the restrictions described in Section 5.8(d)
above, a transfer of any Lease from the Partnership to an Affiliated
Production Purchase or Income Program must be made at fair market value
if the Lease has been held for more than six months or there have been
significant expenditures made in connection with the Lease; otherwise,
if the Managing Partner deems it to be in the best interests of the
Partnership, the transfer may be made at the Lease Acquisition Costs as
adjusted for intervening operations.
A determination of fair market value as required by this paragraph (f) must be
supported by an appraisal from an Independent Expert. Such opinion and any
associated supporting information will be maintained in the Partnership's
records for at least six years.
(g) No rebates or give-ups may be received by the Managing Partner or
any Affiliate, nor may the Managing Partner or any Affiliate participate in any
reciprocal business arrangements which do not primarily benefit the Partnership.
The Partnership will acquire only Leases that are reasonably required
for the stated purpose of the Partnership, and no Leases will be acquired for
the purpose of subsequent sale or farmout, unless the acquisition of such
property by the Partnership is made after a well has been drilled to a depth
sufficient to indicate that such an acquisition is believed to be in the best
interests of the Partnership.
(h) Neither the Managing Partner, nor any Affiliate thereof, including
an Affiliated Program, shall be permitted to sell, transfer, or convey any Lease
to the Partnership, directly or indirectly, except pursuant to a transaction
which is fair and reasonable to the Partnership and in accordance with the
following restrictions:
(i) The Managing Partner and its Affiliates may only sell a
Lease to the Partnership at a price equal to its Lease Acquisition
Costs unless the transferor has cause to believe that the Lease
Acquisition Costs are materially more than the fair market value of
such Lease, in which case such sale must be made at a price not in
excess of its fair market value; provided, however, that if the sale is
from an Affiliated Program that has held the Lease for more than two
years and in which Affiliated Program the interest of the Managing
Partner or its Affiliate is substantially similar to, or less than, its
interest in the Partnership, the sale may be made at fair market value.
(ii) If the Managing Partner, or an Affiliate thereof, sells
any Lease within a Prospect to the Partnership, it must, at the same
time, sell to the Partnership an equal proportionate interest in all
other Leases that it owns in the same Prospect.
(iii) If at any time within a period of five years from the
creation of the Partnership, the Managing Partner or an Affiliate
thereof proposes to acquire an interest from a non-Affiliated person in
a Prospect in which the Partnership possesses an interest or in a
Prospect in which the Partnership's interest has been terminated
without compensation within one year preceding such proposed
acquisition, the following conditions will apply: (A) if the Managing
Partner or any Affiliate thereof does not currently own property in the
Prospect separately from the Partnership, then neither the Managing
Partner nor any Affiliate thereof will be permitted to purchase an
interest in the Prospect and (B) if the Managing Partner or any
Affiliate thereof currently owns a proportionate interest in the
Prospect separately from the Partnership, then the interest to be
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acquired will be divided between the Partnership and the Managing
Partner, or an Affiliate thereof in the same proportion as is the other
property in the Prospect; provided, however, if cash or financing is
not available to the Partnership to enable it to consummate a purchase
of the additional interest to which it is entitled, then neither the
Managing Partner, nor any Affiliate thereof may purchase any additional
interest in the Prospect during such five year period.
(iv) If the area constituting a Partnership's Prospect is
subsequently enlarged to encompass any area wherein the Managing
Partner or any Affiliate thereof owns a separate Lease, such separate
Lease or a portion thereof must be sold, transferred, or conveyed to
the Partnership, in accordance with the provisions described in this
Section 5.8(h), if the activities of the Partnership were material in
establishing the existence of Proved Undeveloped Reserves which are
attributable to such Lease.
(v) Except for the carried interests created by the Program
Agreement, a sale, transfer, or conveyance to the Partnership of less
than all of the ownership of the Managing Partner or any Affiliate
thereof in any Lease is prohibited unless the interest retained by the
Managing Partner or such Affiliate is a proportionate Working Interest,
the respective obligations of the Managing Partner, or such Affiliate
and the Partnership are substantially the same after the sale of the
interest by the Managing Partner or such Affiliate and its interest in
revenues does not exceed the amount proportionate to its retained
Working Interest. Except for the carried interests created by the
Program Agreement, neither the Managing Partner nor any Affiliate
thereof may retain any Overriding Royalty Interest or other burden on
an interest conveyed to the Partnership.
(vi) For the purposes of the preceding four paragraphs, the
term "Affiliate" does not include an Affiliated Program in which the
interest of the Managing Partner or an Affiliate thereof is
substantially similar to or less than its interest in the Partnership.
(vii) If the Partnership acquires a Lease pursuant to a
farmout or joint venture from an Affiliated Program, the Managing
Partner's, and any Affiliate's thereof aggregate compensation
associated with the property and any direct or indirect ownership
interest in the property may not exceed the lower of the compensation
and ownership interest the Managing Partner, and such Affiliates could
receive if the property were separately owned or retained by either the
Partnership or such other Affiliated Program.
A determination of fair market value as required by this paragraph (h) must be
supported by an appraisal from an Independent Expert. Such opinion and any
associated supporting information will be maintained in the Partnership's
records for at least six years.
(i) If the Partnership participates in other partnerships or joint
ventures (multi-tier arrangements), the terms of any such arrangements shall not
result in the circumvention of any of the requirements or prohibitions contained
in this Partnership Agreement, including the following:
(i) there will be no duplication or increase in the Managing
Partner's compensation, Partnership expenses, or other fees and costs;
(ii) there will be no substantive alteration in the fiduciary
and contractual relationship between the Managing Partner and the
Investor Partners; and
(iii) there will be no diminishment in the voting rights of
the Investor Partners.
(j) In connection with a proposed Roll-Up, the following shall apply:
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(i) An appraisal of all Partnership assets shall be
obtained from a competent Independent Expert. If the appraisal will be
included in a prospectus used to offer the securities of a Roll-Up
Entity, the appraisal shall be filed with the Securities and Exchange
Commission as an exhibit to the registration statement for the
offering. The appraisal shall be based on all relevant information,
including current reserve estimates prepared by an independent
petroleum consultant, and shall indicate the value of the Partnership's
assets assuming an orderly liquidation as of a date immediately prior
to the announcement of the proposed Roll-Up transaction. The appraisal
shall assume an orderly liquidation of Partnership assets over a
12-month period. The terms of the engagement of the Independent Expert
shall clearly state that the engagement is for the benefit of the
Partnership and the Investor Partners. A summary of the independent
appraisal, indicating all material assumptions underlying the
appraisal, shall be included in a report to the Investor Partners in
connection with a proposed Roll-Up.
(ii) In connection with a proposed Roll-up, Investor
Partners who vote "no" on the proposal shall be offered the choice of:
(a) accepting the securities of the Roll-Up Entity;
(b) either (A) remaining as Limited Partner or
General Partner in the Partnership and
preserving his or her interest in the
Partnership on the same terms and conditions as
existed previously, or (B) receiving cash in an
amount equal to his or her pro-rata share of the
appraised value of the net assets of the
Partnership.
(iii) The Partnership shall not participate in any proposed
Roll-Up which, if approved, would result in the diminishment of any
Investor Partner's voting rights under the Roll-Up Entity's chartering
agreement. In no event shall the democracy rights of Investor Partners
in the Roll-Up Entity be less than those provided for under Sections
6.4 and 6.5 of this Agreement. If the Roll-Up Entity is a corporation,
the democracy rights of Investor Partners shall correspond to the
democracy rights provided for in this Agreement to the greatest extent
possible.
(iv) The Partnership shall not participate in any proposed
Roll-Up transaction which includes provisions which would operate to
materially impede or frustrate the accumulation of shares by any
purchaser of the securities of the Roll-Up Entity (except to the
minimum extent necessary to preserve the tax status of the Roll-Up
Entity); nor shall the Partnership participate in any proposed Roll-Up
transaction which would limit the ability of an Investor Partner to
exercise the voting rights of its securities of the Roll-Up Entity on
the basis of the number of Partnership Interests held by that Investor
Partner.
(v) The Partnership shall not participate in a Roll-Up in
which Investor Partners' rights of access to the records of the Roll-Up
Entity will be less than those provided for under Section 7.1(a) and
(b) of this Agreement.
(vi) The Partnership shall not participate in any proposed
Roll-Up transaction in which any of the costs of the transaction would
be borne by the Partnership if less than a Super Majority in Interest
of the Investor Partners vote to approve the proposed Roll-Up.
(vii) The Partnership shall not participate in a Roll-Up
transaction unless the Roll-Up transaction is approved by a Super
Majority in Interest.
To the extent the restrictions set forth above apply to the Managing Partner or
its Affiliates and except as otherwise provided herein, the term "Affiliate"
includes, but is not limited to, MOC in its capacity as Program Manager. Except
as otherwise set forth in this Section 5.8 of the Partnership Agreement, the
Managing Partner and its Affiliates may
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pursue business opportunities that are consistent with the Partnership's
investment objectives for their own account only after they have determined that
such opportunity either cannot be pursued by the Partnership because of
insufficient funds or because it is not appropriate for the Partnership under
the existing circumstances.
SECTION 5.9 Restriction on Voting Interests Held by Managing Partner.
Interests owned by the Managing Partner or its Affiliates shall have full voting
rights under this Agreement, provided that during the time period that MD or an
Affiliate thereof is serving as the Managing Partner of the Partnership any
Interests owned by MD or its Affiliates which in the aggregate represent more
than 20% of the total Interests held by Investor Partners shall not have any
voting rights under this Agreement and shall not be counted for voting purposes
or for purposes of determining a quorum. In addition, none of the Interests
owned by the Managing Partner or its Affiliates shall be counted for voting
purposes or for purposes of determining a quorum or have any voting rights under
this Agreement concerning the removal of the Managing Partner or any transaction
between the Partnership and the Managing Partner or its Affiliates.
SECTION 5.10 Tax Elections. The Managing Partner shall make the
following elections on behalf of the Partnership:
(a) to elect, in accordance with Section 263(c) of the Code and
applicable regulations and comparable state law provisions, to deduct as an
expense all intangible drilling and development costs with respect to productive
and nonproductive wells and the preparation of wells for the production of oil
or gas;
(b) to elect the calendar year as the Partnership's fiscal year;
(c) to elect the accrual method of accounting;
(d) to elect, in accordance with Section 709(b) of the Code and
applicable regulations and comparable state law provisions, to amortize and
deduct organization expenses (as such term is defined in Section 709 of the
Code) over a period of 60 months beginning with the month in which the
Partnership begins business; and
(e) to elect with respect to such other federal, state, and local tax
matters as the Managing Partner deems advantageous to the Partnership; provided
that no election shall be made by the Partnership in accordance with Section 754
of the Code and applicable regulations and comparable state law provisions
without the consent of the Managing Partner, the granting or denying of which
consent shall be in its sole and absolute discretion.
SECTION 5.11 Tax Matters Partner. The Managing Partner shall be
designated the tax matters partner (in this Section 5.11 called the "TMP") as
defined in Section 6231(a)(7) of the Code with respect to operations conducted
by the Partners pursuant to this Agreement. The TMP is authorized to take such
actions and to execute and file all statements and forms on behalf of the
Partnership which may be permitted or required by the applicable provisions of
the Code or Treasury Regulations issued thereunder, and the Investor Partners
will take all other action that may be necessary or appropriate to effect the
designation of the Managing Partner as the TMP. In the event of an audit of the
Partnership's income tax returns by the Internal Revenue Service, the TMP may,
at the expense of the Partnership, retain accountants and other professionals to
participate in the audit. All expenses incurred by the TMP in its capacity as
such shall be expenses of the Partnership and shall be paid by or reimbursed to
the TMP from Partnership funds.
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ARTICLE VI
RIGHTS AND OBLIGATIONS OF INVESTOR PARTNERS
SECTION 6.1 Rights of Investor Partners. In addition to any other
rights specifically set forth herein, all Investor Partners shall have the right
to: (a) have the Partnership books kept at the principal place of business of
the Partnership and upon adequate written notice at all reasonable times inspect
and, at such Investor Partner's expense, copy any of them personally or through
a representative; (b) have on demand true and full information of all things
affecting the Partnership and a formal account of Partnership affairs, whenever
permitted by law; and (c) have dissolution and winding up by decree of court as
provided for in the Act.
SECTION 6.2 Access of Investor Partners to Geophysical Data. During the
term of the Partnership, the Partnership may acquire or have access to
geophysical, geological, and other similar data and information. Each Investor
Partner shall during the term of the Partnership have the right, after adequate
notice, during normal business hours at the offices of the Partnership to
inspect and review all such data and information and studies, maps, evaluations,
or reports derived therefrom and material related thereto in the actual custody
of the Managing Partner; provided, however, that the Managing Partner may refuse
for a reasonable period of time to grant a Investor Partner access to such data
and information and studies, maps, evaluations, and reports which the Managing
Partner (a) has agreed to keep confidential or (b) determines in good faith
should be kept confidential considering the interests of the Partnership and
each of its Partners.
SECTION 6.3 Return of Capital Contribution. No Investor Partner shall
be entitled to (a) withdraw from the Partnership except upon assignment by an
Investor Partner of his Interests and the substitution of such Investor
Partner's assignee as a substituted Investor Partner of the Partnership in
accordance with Section 8.1 or as required by law, or (b) the return of his
Capital Contribution except (i) as otherwise provided in this Agreement or as
required by law, (ii) to the extent, if any, that distributions made pursuant to
the express terms of this Agreement may be considered as such by law or by
unanimous agreement of the Partners, or (iii) upon dissolution of the
Partnership, and then only to the extent expressly provided for in this
Agreement and as permitted by law.
SECTION 6.4 Meetings. Meetings of the Partners may be called by the
Managing Partner at any time and from time to time or may be called by Investor
Partners whose combined Sharing Ratios equal at least 10%. The Managing Partner
shall, within 15 days after its receipt of a written request for any such call
by Investor Partners for a Partners' meeting, give all Investor Partners written
notice of the time, place, and purpose of such meeting. The meeting shall be
held at a reasonable time and place on a date not less than 30 nor more than 60
days after the date of the mailing of such notice; provided that the date for
notice of such a meeting may be extended for a period of up to 60 days, if in
the opinion of the Managing Partner such additional time is necessary to permit
preparation of proxy or information statements or other documents required to be
delivered in connection with such meeting by the Securities and Exchange
Commission, state securities administrators or other regulatory authorities. The
Partners may conduct any Partnership business at such meeting which is permitted
under this Agreement and is specified in such notice. Investor Partners may vote
in person or by proxy at any such meeting, and the presence in person or by
proxy of a Majority in Interest of the Investor Partners shall be necessary to
constitute a quorum for the transaction of business at such meeting.
SECTION 6.5 Voting Rights of Investor Partners. Except as otherwise
provided in SECTION 5.2(B) AND 5.9(J), any vote, consent, approval, election, or
other action by the Investor Partners on or with respect to any Partnership
matter (including, without limitation, those matters set forth in Sections
5.2(c), 5.2(e), 8.6(a), 8.6(b), 9.1(b) and 9.3(a)) shall be duly and validly
made only if made by a Majority in Interest of the Investor Partners (without
the necessity for the concurrence by the Managing Partner), and in the event of
any such vote, consent, approval, or election, each Investor Partner that does
not vote for, consent to, approve of, or elect with respect to such matter
hereby agrees to be bound by the decision of a Majority in Interest of the
Investor Partners and hereby approves such matter to the extent
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such approval is required for such matter to be effective under the Delaware Act
or any other applicable law, rule, or regulation.
SECTION 6.6 Conduct of Meeting. The Managing Partner shall have full
power and authority concerning the manner of conducting any meeting of the
Investor Partners or solicitation of consents in writing, including without
limitation, the determination of persons entitled to vote, the existence of a
quorum, the satisfaction of the requirements of Section 6.4, the conduct of
voting, the validity and effect of any proxies, votes, or consents, and the
determination of any controversies, votes, or challenges arising in connection
with or during the meeting or voting. The Managing Partner shall designate a
person to serve as chairman of any meeting and shall further designate a person
to take the minutes of any meeting, in either case, including without
limitation, a partner or a director or an officer of the Managing Partner. All
minutes shall be kept with the records of the Partnership maintained by the
Managing Partner. The Managing Partner may make such other regulations
consistent with applicable law and this Agreement as it may deem advisable
concerning the conduct of any meeting of the Investor Partners or solicitation
of consents in writing, including regulations in regard to the appointment of
proxies, the appointment and duties of inspectors of votes and consents, the
submission and examination of proxies and other evidence of the right to vote,
and the revocation of consents in writing.
SECTION 6.7 General Partners Not Agents. Pursuant to Section 5.1 the
General Partners have elected to delegate to the Managing Partner authority to
manage, control, and administer and operate the property, business, and affairs
of the Partnership. Each General Partner agrees that no General Partner or group
of General Partners constituting less than a Majority in Interest may cause the
Managing Partner on behalf of the Partnership to act as agent for the
Partnership, execute documents on behalf of the Partnership, convey Partnership
property, or take any other action binding on the Partnership. Each General
Partner further agrees that in no circumstance will a Partner other than the
Managing Partner have the right to act as agent for the Partnership, execute
documents on behalf of the Partnership, convey Partnership property, or take any
other action binding on the Partnership. Any General Partner who takes action
contravening this Section 6.7 agrees to indemnify the Partnership and all other
Partners from any loss, liability, or expense caused by such action.
SECTION 6.8 Liabilities of Partners.
(a) Pursuant to the Delaware Act, the General Partners are liable
jointly and severally for all liabilities and obligations of the Partnership.
Notwithstanding the foregoing, as among themselves, the General Partners hereby
agree that each shall be solely and individually responsible only for his pro
rata share (based on Capital Contributions made) of the liabilities and
obligations of the Partnership, and any General Partner who incurs liability in
excess of his pro rata share shall be entitled to contribution from the other
General Partners. Pursuant hereto, the Managing Partner further agrees to
indemnify each General Partner for any and all Partnership-related obligations
and liabilities otherwise allocable to or paid by such General Partner which are
in excess of such General Partner's share of the Partnership's undistributed
assets. Under no circumstances shall any Partner be required to indemnify the
Managing Partner, except to the extent of such Partner's (i) Capital
Contribution and (ii) share of Partnership assets.
(b) The Partnership may purchase and maintain insurance on behalf of
all Partners against any liabilities asserted against or expenses incurred by
the Partners in connection with Partnership activities, provided that the
Partnership shall not incur the costs of that portion of such insurance, if any,
which insures the Managing Partner for any liability with respect to which the
Managing Partner is denied indemnification under the provisions of this
Agreement. Such insurance may be in such amounts as the Managing Partner shall
determine is sufficient to protect the Partners from the maximum amount of such
liabilities and expenses.
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ARTICLE VII
BOOKS, RECORDS, CAPITAL ACCOUNTS, REPORTS, AND BANK ACCOUNTS
SECTION 7.1 Books, Records, and Capital Accounts.
(a) The Managing Partner shall keep just and true records and books of
account with respect to the operations of the Partnership and shall maintain and
preserve during the term of the Partnership and for four years thereafter all
such records, books of account, and other relevant Partnership documents. The
Managing Partner shall maintain for at least six years all records necessary to
substantiate the fact that Interests were sold only to purchasers for whom such
Interests were suitable. Such books shall be maintained at the principal place
of business of the Partnership and shall be kept on the accrual method of
accounting.
(b) Any records maintained by the Partnership in the regular course of
its business, including the names and addresses of Investor Partners, books of
account and records of Partnership proceedings, may be kept on or be in the form
of magnetic tape, photographs, micrographics, or any other information storage
device, provided that the records so kept are convertible into clearly legible
written form within a reasonable period of time. An alphabetical list of the
names, addresses, and business telephone numbers of the Investor Partners of the
Partnership along with the number of Interests held by each of them (the
"participant list") shall be maintained as a part of the books and records of
the Partnership and shall be available for the inspection by any Investor
Partner or his designated agent at the principal office of the Partnership upon
the request of the Investor Partner. The participant list shall be updated at
least quarterly to reflect changes in the information contained therein. A copy
of the participant list shall be mailed to any Investor Partner requesting the
participant list within ten days of the request. The copy of the participant
list shall be printed in alphabetical order, on white paper, in a readily
readable type size (in no event smaller than 10-point type). A reasonable charge
for copy work may be charged by the Partnership. The purposes for which an
Investor Partner may request a copy of the participant list include, without
limitation, matters relating to voting rights under the Partnership Agreement
and the exercise of Investor Partners' rights under federal proxy laws. If the
Managing Partner of the Partnership neglects or refuses to exhibit, produce, or
mail a copy of the participant list as requested, the Managing Partner shall be
liable to any Investor Partner requesting the list for the costs, including
attorneys' fees, incurred by that Investor Partner for compelling the production
of the participant list, and for actual damages suffered by any Investor Partner
by reason of such refusal or neglect. It shall be a defense that the actual
purpose and reason for the requests for inspection or for a copy of the
participant list is to secure the list of Investor Partners or other information
for the purpose of selling such list or information or copies thereof, or of
using the same for a commercial purpose other than in the interest of the
applicant as an Investor Partner relative to the affairs of the Partnership. The
Managing Partner may require the Investor Partner requesting the participant
list to represent that the list is not requested for a commercial purpose
unrelated to the Investor Partner's interest in the Partnership. The remedies
provided hereunder to Investor Partners requesting copies of the participant
list are in addition to, and shall not in any way limit, other remedies
available to Investor Partners under federal law or the laws of any state.
(c) An individual capital account shall be maintained by the
Partnership for each Partner as provided below:
(i) The capital account of each Partner shall, except as
otherwise provided herein, be (A) credited by such Partner's Capital
Contributions when made, (B) credited by the fair market value of any
property contributed to the Partnership by such Partner (net of
liabilities secured by such contributed property that the Partnership
is considered to assume or take subject to under Section 752 of the
Code), (C) credited with the amount of any item of taxable income or
gain and the amount of any item of income or gain exempt from tax
allocated to such Partner, (D) credited with the Partner's share of
Simulated Gain as provided in Section 7.1(c)(ii), (E) debited by the
amount of any item of tax deduction or loss allocated to such Partner,
(F) debited by the Partner's share of Simulated Depletion and Simulated
Loss as provided in Section 7.1(c)(ii), (G) debited
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by such Partner's allocable share of expenditures of the Partnership
not deductible in computing the Partnership's taxable income and not
properly chargeable as Capital Expenditures, including any
non-deductible book amortizations of capitalized costs, and (H) debited
by the amount of cash or the fair market value of any property
distributed to such Partner (net of liabilities secured by such
distributed property that such Partner is considered to assume or take
subject to under Section 752 of the Code). Immediately prior to any
distribution of property by the Partnership that is not pursuant to a
liquidation of the Partnership, the Partners' capital accounts shall be
adjusted by (A) assuming that the distributed assets were sold by the
Partnership for cash at their respective fair market values as of the
date of distribution by the Partnership and (B) crediting or debiting
each Partner's capital account with its respective share of the
hypothetical gains or losses resulting from such assumed sales
determined in the same manner as gains or losses provided for under
Sections 4.2 and 7.1(c)(ii) for actual sales of such properties.
(ii) The allocation of basis prescribed by Section
613A(c)(7)(D) of the Code and provided for in Section 4.2(g) and each
Partner's separately computed depletion deductions shall not reduce
such Partner's capital account, but such Partner's capital account
shall be decreased by an amount equal to the product of the depletion
deductions that would otherwise be allocable to the Partnership in the
absence of Section 613A(c)(7)(D) of the Code (computed without regard
to any limitations which theoretically could apply to any Partner)
times such Partner's percentage share of the adjusted basis of the
property with respect to which such depletion is claimed (herein called
"Simulated Depletion"). The Partnership's basis in any oil or gas
property as adjusted from time to time for the Simulated Depletion
allocable to all Partners (and where the context requires, each
Partner's allocable share thereof) is herein called "Simulated Basis."
No Partner's capital account shall be decreased, however, by Simulated
Depletion deductions attributable to any depletable property to the
extent such deductions exceed such Partner's remaining Simulated Basis
in such property. Upon the sale or other disposition of an interest in
a depletable property, each Partner's capital account shall be credited
with the gain ("Simulated Gain") or debited with the loss ("Simulated
Loss") determined by subtracting from his allocable share of the amount
realized on such sale or disposition his Simulated Basis, as adjusted
by Simulated Depletion.
(iii) Adjustments of basis of Partnership property provided
for under Sections 734 and 743 of the Code and comparable provisions of
state law (resulting from an election under Section 754 of the Code or
comparable provisions of state law) and elections by individual
Partners under Section 59(e)(4) of the Code to capitalize and amortize
such Partner's share of intangible drilling and development costs shall
not affect the capital accounts of the Partners, and the Partners'
capital accounts shall be debited or credited pursuant to the terms of
this Section 7.1 as if no such election had been made, unless otherwise
required by applicable Treasury Regulations.
(iv) Capital accounts shall be adjusted, in a manner
consistent with this Section 7.1, to reflect any adjustments in items
of Partnership income, gain, loss, or deduction that result from
amended returns filed by the Partnership or pursuant to an agreement by
the Partnership with the Internal Revenue Service or a final court
decision.
(v) In the case of property contributed to the Partnership
by a Partner, the Partners' capital accounts shall be debited or
credited for items of depreciation, cost recovery, Simulated Depletion,
amortization, and gain or loss with respect to such property computed
in the same manner as such items would be computed if the adjusted tax
basis of such property were equal to its fair market value on the date
of its contribution to the Partnership, in lieu of the capital account
adjustments provided above for such items, all in accordance with
Treasury Regulation 1.704-1(b)(2) (iv)(g).
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(vi) It is the intention of the Partners that the capital
account of each Partner be kept in the manner required under Treasury
Regulation 1.704-1(b)(2)(iv). To the extent any additional adjustment
to the capital accounts is required by such regulation, the Managing
Partner is hereby authorized to make such adjustment after notice to
the General Partners.
SECTION 7.2 Reports. The Managing Partner shall deliver to each
Investor Partner the following financial statements and reports at the times
indicated below:
(a) Semiannually within 75 days after the end of the first six months
of each fiscal year and annually within 120 days after the end of each fiscal
year, financial statements, including a balance sheet and statements of income,
Partners' equity, and cash flow, all of which shall be prepared in accordance
with generally accepted accounting principles. The annual financial statements
shall be accompanied by a report of an independent certified public accountant
designated by the Managing Partners, stating that an audit of such financial
statements has been made in accordance with generally accepted auditing
standards and that in its opinion such financial statements present fairly the
financial condition, results of operations, and cash flows of the Partnership in
accordance with generally accepted accounting principles consistently applied.
(b) Annually by March 15 of each year or as soon thereafter as is
reasonably possible, a report containing such information as may be needed to
enable each Investor Partner to prepare and file his federal income tax return
and any required state income tax return.
(c) Annually within 120 days after the end of each fiscal year
beginning with the fiscal year ended December 31 of the year following the year
in which the Partnership commences operation, (i) a summary of the computations
of the total estimated oil and gas Proved Reserves of the Partnership as of the
end of such fiscal year and the dollar value thereof at then existing prices and
a computation of each Investor Partner's interest in such value, such reserve
computations to be based upon engineering reports prepared by qualified
independent petroleum engineers, (ii) an estimate of the time required for the
extraction of such Proved Reserves and the present worth thereof (discounted at
a rate generally accepted in the oil and gas industry and undiscounted), and
(iii) a statement that because of the time period required to extract such
reserves the present value of revenues to be obtained in the future is less than
if such revenues were immediately receivable. Each such report shall be prepared
in accordance with customary and generally accepted standards and practices for
petroleum engineers and shall be prepared by a recognized independent petroleum
engineer selected from time to time by the Managing Partner. No later than 90
days following the occurrence of an event resulting in a reduction in an amount
of 10% or more of the estimated value of the oil and gas Proved Reserves as last
reported to the Investor Partners, other than a reduction resulting from normal
production, sales of reserves or product price changes, a new summary conforming
to the requirements set forth above in this Section 7.2(c) shall be delivered to
the Investor Partners.
(d) Semiannually within 75 days after the end of the first six months
of each fiscal year and annually within 120 days after the end of each fiscal
year, (i) a summary itemization, by type or classification, of any transaction
of the Partnership since the date of the last such report with the Managing
Partner or any Affiliate thereof and the total fees, compensation, and
reimbursement paid by the Partnership (or indirectly on behalf of the
Partnership) to the Managing Partner and its Affiliates, including without
limitation, the average price paid by any Affiliate of the Managing Partner
during the two most recent calendar quarters for oil and gas produced by Program
Wells purchased by such Affiliate and the highest average price paid by any
other substantial purchaser of comparable oil or gas produced in the field where
such Program Wells are located, and (ii) a schedule reflecting (A) the total
costs of the Partnership (and, where applicable, the costs pertaining to each
Prospect) and the costs paid by the Managing Partner and by the Investor
Partners and (B) the total revenues of the Partnership and the revenues received
by or credited to the accounts of the Managing Partner and the Investor
Partners. Each semi-annual report delivered by the Managing Partner may contain
summary estimates of the information described in subdivision (i) of this
Section 7.2(d).
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(e) Monthly within 30 days after the end of each calendar month while
the Partnership is participating in the drilling and completion of wells in
which it has an interest until the end of such activity, and thereafter for a
period of three years semiannually within 75 days after the end of the first six
months of each fiscal year and annually within 120 days after the end of each
fiscal year, (i) a description of each Prospect or field in which the
Partnership owns Leases (provided that after the initial description of each
such Prospect or field has been provided to the Investor Partners only material
changes, if any, with respect to such Prospect or field need be described), (ii)
a description of all farmouts entered into by the Partnership since the date of
the last such report, including the reason therefor, the location and timing
thereof, the parties to the farmout and the terms thereof, and (iii) a summary
of the wells drilled by the Partnership and the status thereof, indicating
whether each of such wells is being drilled or has been completed or plugged and
abandoned, a statement of the cost of each well completed or abandoned, and the
reason for abandoning any well after commencement of production. Each report
delivered by the Managing Partner may contain summary estimates of the
information described in clause (iii) of this Section 7.2(e).
(f) Such other reports and financial statements as the Managing Partner
shall determine from time to time.
The cost of such reporting shall be paid by the Partnership as a
Partnership expense.
SECTION 7.3 Bank Accounts. The Managing Partner shall cause one or more
accounts to be maintained in a state or federally chartered bank or savings and
loan association, which accounts shall be used for the payment of the
expenditures incurred by the Managing Partner in connection with the business of
the Partnership, and in which shall be deposited any and all receipts of the
Partnership. All such amounts shall be and remain the property of the
Partnership and shall be received, held, and disbursed by the Managing Partner
for the purposes specified in this Agreement. There shall not be deposited in
any of said accounts any funds other than funds belonging to the Partnership,
and no other funds shall in any way be commingled with such funds. The Managing
Partner may invest Partnership funds which they deem untimely or inappropriate
to use or commit for Partnership purposes or to distribute to the Partners in
such United States Treasury Bills, other short-term governmental obligations or
bank certificates of deposit or other certificates, securities or evidences of
indebtedness on such terms and for such security, if any, as they may deem
necessary or desirable. The Managing Partner shall have a fiduciary
responsibility for the safekeeping and use of all funds and assets of the
Partnership, whether or not in the Managing Partner's possession or control, and
shall not employ or permit another to employ such funds or assets in any manner
except for the benefit of the Partnership.
ARTICLE VIII
ASSIGNMENT AND PURCHASE OF INTERESTS;
SUBSTITUTION
SECTION 8.1 Assignments by Investor Partners.
(a) The interest of any Investor Partner in the Partnership shall be
assignable, in whole or in part, subject to the following:
(i) No such assignment shall be made if, in the opinion of
counsel to the Partnership, such assignment would cause the termination
of the Partnership for federal income tax purposes under Section 708 of
the Code or might result in a change in the status of the Partnership
to a "publicly traded partnership" within the meaning of Section 7704
of the Code, unless the Managing Partner consents to such assignment,
or if in the opinion of counsel to the Partnership such assignment may
not be effected without registration under the Securities Act of 1933,
as amended, or would result in the violation of any applicable state
securities laws;
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(ii) The Partnership shall not be required to recognize any
such assignment until the instrument conveying such interest has been
delivered to the Managing Partner for recordation on the books of the
Partnership;
(iii) Unless an assignee becomes a substituted Investor
Partner in accordance with the provisions set forth below, such
assignee shall not be entitled to any of the rights granted to an
Investor Partner hereunder, other than the right to receive all or part
of the share of the profits, losses, cash distributions, or returns of
capital to which his assignor would otherwise be entitled;
(iv) Except by will, intestate succession, or gift or, in
unusual circumstances when consented to by the Managing Partner, the
assigning Investor Partner (A) may not assign fewer than a whole
Interest (five Interests for Investor Partners who are residents of
either the States of California, Iowa, or Minnesota) to any person
other than the Partnership, the Managing Partner, an Affiliate thereof,
or a third person designated by the Managing Partner in its sole
discretion, unless such Investor Partner owns less than a whole
Interest (less than five Interests for Investor Partners who are
residents of either the States of California, Iowa, or Minnesota) and
transfers all his Interest to one person, and (B) must retain at least
a whole Interest (five Interests for Investor Partners who are
residents of either the States of California, Iowa, or Minnesota), in
the event fewer than all such Investor Partner's Interests are assigned
to any person other than the Partnership, Managing Partner, an
Affiliate thereof, or a third person designated by the Managing Partner
in its sole discretion; and
(v) The assignor shall notify the Managing Partner of such
assignment and provide the Managing Partner with such information
regarding the transferee and the transfer (including without
limitation, the name, address, and taxpayer identification number of
the transferor and transferee and the date of the transfer) as is
required under Section 6050K of the Code (if the transfer is a sale or
exchange described in Section 751(a) of the Code) and Section 6112 of
the Code (relating to tax shelter investor lists) and Treasury
Regulations promulgated thereunder by the Internal Revenue Service in
the manner and at the time prescribed by law.
An assignment by an Investor Partner in violation of clause (i) or clause (ii)
of this Section 8.1(a) shall be void and ineffectual and shall not bind the
Partnership or any other Partner. The assignee of an Investor Partner's interest
in the Partnership shall pay all costs and expenses incurred by the Partnership
in connection with such assignment, which costs and expenses shall not be less
than $50. In the discretion of the Managing Partner, such costs and expenses may
be collected out of revenues otherwise allocable to such assignee under this
Agreement.
(b) An assignee of the interest of an Investor Partner, or any portion
thereof if permitted hereunder, shall become a substituted Investor Partner
entitled to all the rights of an Investor Partner if, and only if:
(i) The assignor gives the assignee such right;
(ii) The Managing Partner consents to such substitution, the
granting or denying of which consent shall be in the Managing Partner's
sole and absolute discretion;
(iii) The assignee pays to the Partnership all costs and
expenses incurred in connection with such substitution; including
without limitation, costs incurred in amending filings referred to in
Section 1.7, which costs and expenses, in the discretion of the
Managing Partner, may be collected out of revenues otherwise allocable
to such substituted Investor Partner under this Agreement;
(iv) The assignee executes and delivers such instruments, in
form and substance satisfactory to the Managing Partner, as the
Managing Partner may deem necessary or desirable to effect such
substitution and to confirm the agreement of the assignee to be bound
by all of the terms and provisions of this Agreement; and
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(v) The assignee delivers to the Managing Partner a written
representation as to each of the matters set forth in the Subscription
Agreement.
The consent of the Investor Partners shall not be required for admission to the
Partnership of a substituted Investor Partner who meets the above requirements.
The Partnership and the Managing Partner shall be entitled to treat the record
owner of any Partnership interest as the absolute owner thereof in all respects,
and shall incur no liability for distributions of cash or other property made in
good faith to such record owner until such time as a written assignment of such
interest has been received and accepted by the Managing Partner and recorded on
the books of the Partnership. In no event shall any Partnership interest, or any
portion thereof, be sold, transferred, or assigned to a minor or incompetent or
any other person not qualified to become an Investor Partner hereunder, and any
such attempted sale, transfer, or assignment shall be void and ineffectual and
shall not bind the Partnership or the Managing Partner. Unless an assignee
becomes a substituted Investor Partner, any assignment by the assigning Investor
Partner of the right to receive Partnership distributions shall not release such
Investor Partner of any obligations connected with the interest in the
Partnership being assigned. In no event shall any purported transfer, by
operation of law or otherwise, require the accounting by the Managing Partner to
more than one person with respect to the Partnership interest transferred unless
the transfer is consented to by the Managing Partner in accordance with the
foregoing and the Partnership interest transferred represents a whole number of
Interests owned by the Investor Partner. The effective date of any assignment
shall be the date on which all of the prerequisites to the assignment specified
in this Section 8.1 have been met. The Partnership will amend its records at
least once each calendar quarter to effect the substitution of substituted
partners. In the case of assignments where the assignee does not become a
substituted Investor Partner, the Partnership shall recognize the assignment not
later than the last day of the calendar month following receipt of the notice of
assignment and the required documentation.
SECTION 8.2 Assignment by Managing Partner.
(a) The interest of the Managing Partner in the Partnership shall not
be assignable, in whole or in part, except in the event of the following
assignments:
(i) A disposition by the Managing Partner of all or any
portion of its Partnership interest to one or more Affiliates of the
Managing Partner that agree to assume all or a proportionate part of
the obligations of the Managing Partner with respect to such interest
in the Partnership;
(ii) A disposition by the Managing Partner of all or any
part of its Partnership interest to one or more persons that have as
the result of a merger, consolidation, corporate reorganization, or
other transaction acquired all or substantially all of the assets of
the Managing Partner and have assumed the obligations of the Managing
Partner hereunder; or
(iii) An assignment or transfer by the Managing Partner of
all or any portion of its Partnership interest by way of mortgage,
pledge, or charge as security for an advance of monies to it, provided
that the mortgagee or pledgee shall hold such interest subject to all
of the terms of this Agreement.
(b) In the event of a disposition, assignment, or transfer referred to
in clause (i) or clause (ii) of Section 8.2(a), such successor, assignee, or
transferee shall be and become a substituted Managing Partner and shall continue
the business of the Partnership without the occurrence of any dissolution and
the assigning Managing Partner shall be released from all of its obligations
thereafter arising hereunder; and each Investor Partner (and any person who
hereafter becomes a substituted Investor Partner by his execution, adoption, or
acceptance of this Agreement) does hereby consent to the admission of such
successor, assignee, or transferee as a substituted Managing Partner to the
extent required by the Delaware Act and to the continuance of the business of
the Partnership by such substituted Managing Partner, and authorizes the
Managing Partner or substituted Managing Partner to ratify on his behalf
pursuant to the power of attorney
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granted in Section 10.2 such Investor Partner's consent to the admission of the
new Managing Partner as a Managing Partner of the Partnership.
(c) The Partnership shall take such actions as the Managing Partner in
its sole discretion deems necessary or appropriate to effect or facilitate a
disposition, assignment, or transfer referred to in Section 8.2(a), including
without limitation, providing notice thereof to the Investor Partners and
entering into appropriate escrow arrangements; provided, however, that no such
disposition, assignment, or transfer (in the absence of the bankruptcy,
withdrawal, removal, or dissolution of a Managing Partner) shall result in
dissolution of the Partnership.
(d) Except as otherwise provided in Section 8.2(b), Section 8.6 or
Section 9.3, no assignee or transferee of a Managing Partner shall become a
substituted Managing Partner without the written consent of all of the Investor
Partners.
SECTION 8.3 Right of Presentment. During the first calendar quarter of
each of the years through , an Investor Partner other than the Managing Partner
or an Affiliate thereof may request in writing that the Managing Partner
repurchase all, but not less than all, of his Interests (the "Right of
Presentment"). The repurchase price to be paid upon any repurchase of an
Investor Partner's Interests will be the pro rata share represented by his
Interests of:
(a) 100% of the sum of
(i) 65% of the unescalated value as of such Valuation
Date of the future net revenues attributable to the Partnership's
Proved Developed Producing Reserves, as estimated by the Independent
Expert retained by the Managing Partner to prepare the most recent
engineering report furnished to the Investor Partners pursuant to
Section 7.2(c);
(ii) 50% of the unescalated value as of such Valuation
Date of the future net revenues attributable to the Partnership's
Proved Developed Non-Producing Reserves, as estimated by the
Independent Expert retained by the Managing Partner to prepare the most
recent engineering report furnished to the Investor Partners pursuant
to Section 7.2(c);
provided that prior to the calculation of the value of such future net revenues,
that value (A) shall be adjusted by the Independent Expert to reflect the risks
of production and development of such reserves and any other economic
contingencies that would normally be considered by a purchaser of Proved
Reserves and (B) shall be discounted to present value at a rate equal to 10%;
MINUS
(b) the amount of all liabilities, indebtedness, expenses, and
obligations of the Partnership as of the Valuation Date as shown on the
Partnership's most recent audited financial statements furnished to the Investor
Partners pursuant to Section 7.2(a) that were allocable as of the end of such
fiscal year to the Investor Partners; and
(c) any distributions made to Investor Partners between the Valuation
Date and the date of payment of the repurchase attributable to the Interests
being repurchased shall be deducted from the repurchase price. The effective
date of any such sale for purposes of determining such deduction will be deemed
to be the day on which payment of the repurchase price is transmitted.
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SECTION 8.4 Notices of and Limitations on Right of Presentment.
(a) Prior to May 31 of each year in which the Right of Presentment
exists, the Managing Partner shall notify each Investor Partner requesting
repurchase under Section 8.3 of the amount that will be paid to repurchase each
Interest and the method by which that repurchase price was calculated. Upon
their receipt of such notification, the requesting Investor Partners who wish to
present their Interests for repurchase shall do so by properly completing and
executing the form of assignment that will accompany the Managing Partner's
notification and returning it to the Managing Partner within 20 calendar days
after the date of the notification. Such presentment by an Investor Partner
shall constitute his acceptance of the repurchase offer of the Managing Partner,
subject to the terms of this Article 8. Payment for Interests presented for
repurchase during a year will be made in cash not less than 60 nor more than 75
calendar days after receipt by the Managing Partner of the assignments of the
Interests so repurchased.
(b) The maximum number of Interests that the Managing Partner (or an
Affiliate thereof) shall be required to purchase during any calendar year in
which the right to present Interests exists shall not exceed 5% of the total
number of Interests outstanding at the beginning of such calendar year.
(c) In addition to the limitation imposed by subsection (b) above, the
obligation of the Managing Partner or Affiliates thereof, to purchase Interests
and to purchase interests in Affiliated Programs previously or subsequently
organized by the Managing Partner or Affiliates thereof shall not exceed
$500,000 in any calendar year, and such persons may elect not to purchase the
excess. If a greater number of Interests and interests in such previously or
subsequently organized Affiliated Programs are presented for repurchase than are
required to be accepted under this subsection (c), those Interests and interests
will be accepted for repurchase in the following manner: (i) all required
repurchases will be allocated among the other affected partnerships (adjusted to
reflect repurchases within the previous twelve months) pro rata based on their
initial subscribed capital, (ii) to the extent that the amount allocated to any
partnership described in clause (i) exceeds the repurchase price of interests in
that partnership presented for repurchase, such amount shall be allocated among
the other of those partnerships in the manner described in clause (i) until the
entire $500,000 limitation (as adjusted) has been allocated, and (iii) interests
in each partnership described in clause (i) shall be accepted for repurchase in
amounts equal to the portion of the $500,000 limitation allocated to each such
partnership.
(d) In determining if the required number of the outstanding Interests
pursuant to subsection (c) above have been repurchased during any calendar year,
all purchases by the Managing Partner or Affiliates thereof of Interests and
interests in Affiliated Programs previously or subsequently organized by the
Managing Partner or Affiliates thereof, which purchases have been made at any
time during the twelve-month period ending on the date on which such persons are
to purchase Interests hereunder shall be included in the calculation of the
Interests and other interests repurchased. If a greater number of Interests are
presented for repurchase than those persons are required to repurchase, the
Interests to be repurchased will be selected by lot or by such other method as
the Managing Partner deems reasonable. Participation by Investor Partners in any
such lottery shall be determined by calculating the proportion that the number
of Interests presented for repurchase by each Investor Partner bears to the
total number of Interests presented for repurchase at that time. If any
Interests presented for repurchase are not purchased, they will be returned to
the record owners thereof and will be eligible for repurchase during succeeding
years only if new repurchase requests are made and the Interests are again
presented for repurchase. Interests not repurchased in the year presented for
repurchase will have no priority with respect to repurchase in subsequent years.
(e) If, prior to May 31 of the year in which the Right of Presentment
exists, the price for either oil or gas received by the Partnership from its
Program Wells decreases by 20% or more as compared to the price being received
as of the Valuation Date, the Managing Partner may, in its sole and absolute
discretion, refuse to repurchase any Interests presented for repurchase.
Further, if the Managing Partner or Affiliates thereof have purchased the
required number of Interests at any time during the twelve-month period ending
on the date on which the Managing Partner is to purchase Interests from the
Investor Partners pursuant to the Right of Presentment, the Managing Partner's
obligation
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to purchase Interests is discharged. In such event, the Managing Partner shall
notify the presenting Investor Partners of the Managing Partner's election not
to repurchase any of the Interests presented for repurchase and the basis for
such refusal and shall provide to any presenting Investor Partner who so
requests access to such books and records of the Partnership as shall be
reasonably necessary for such Investor Partner to verify the basis for such
refusal.
(f) For purposes of this Agreement, Interests repurchased and held by
the Managing Partner or an Affiliate thereof shall continue to be outstanding.
SECTION 8.5 Cessation of Right of Presentment. In the event the
obligation of the Managing Partner or any Affiliate thereof to repurchase
Interests from Investor Partners pursuant to their Right of Presentment is
determined by counsel to the Partnership to be in violation of any existing or
future laws or to expose the Partnership or the Investor Partners to material
adverse federal income tax consequences, such obligation shall become null and
void and of no further force or effect, but only to the extent necessary in the
opinion of counsel to the Partnership to comply with such laws or to avoid such
consequences.
SECTION 8.6 Removal of Managing Partner.
(a) A Majority in Interest of the Investor Partners shall have the
right to remove the Managing Partner and to elect and substitute a new Managing
Partner. In such event, the removed Managing Partner shall be required to offer
to sell a minimum of 20% of, and shall have the right to offer to sell up to the
remaining 80% of, its interest in the Partnership to the new Managing Partner at
a price, Method of Payment (as determined pursuant to this section), and on such
other terms and conditions as are mutually agreeable to the new Managing
Partner. If after the new Managing Partner and the removed Managing Partner have
agreed on the amount of the removed Managing Partner's Partnership interest that
is to be sold to and purchased by the new Managing Partner (which agreement must
be reached within 10 days of the removal of the Managing Partner), such parties
are unable to agree within 10 days on the purchase price of such interest, the
new Managing Partner and the removed Managing Partner shall select a mutually
agreeable Independent Expert to determine such purchase price. Such Independent
Expert, in determining such price, shall take into account appropriate discount
factors in light of the risk of recovery of the oil and gas reserves
attributable to the Partnership. The closing of the purchase of such Partnership
interest shall take place at the office of the removed Managing Partner within
15 days following the agreement upon or determination of the purchase price for
the interest to be acquired by the new Managing Partner, or at such other time
or place as the removed Managing Partner and the new Managing Partner may agree
upon in writing. In the event the new Managing Partner agrees to purchase less
than all of the offered interest of the removed Managing Partner in the
Partnership, the removed Managing Partner shall have the right to have
distributed to it in kind such Partnership assets and properties attributable to
the Partnership interest not purchased by the new Managing Partner as it would
have been entitled to receive if the Partnership were dissolved and terminated
pursuant to Section 9.4 at such time. The removed Managing Partner shall cause,
to the extent legally possible, all of its contractual rights, obligations, and
duties as Managing Partner of the Partnership to be assigned to the new Managing
Partner, and the new Managing Partner shall continue the business of the
Partnership without the occurrence of any dissolution and shall accept all
responsibilities of the removed Managing Partner and make arrangements
satisfactory to the removed Managing Partner to release it from and indemnify it
against personal liability for any Partnership indebtedness and liabilities.
This Agreement shall thereafter be duly amended to delete the removed Managing
Partner and to name the new Managing Partner. Each Investor Partner (and any
person who hereafter becomes a substituted Investor Partner by his execution,
adoption, or acceptance of this Agreement) hereby consents to the admission of
the new Managing Partner as the substituted Managing Partner and to the
continuance of the business of the Partnership by such substituted Managing
Partner, and authorizes such Managing Partner to certify on his behalf pursuant
to the power of attorney granted in Section 10.2 such Investor Partner's consent
to the admission of such new Managing Partner as the Managing Partner of the
Partnership and to execute any amendments to this Agreement required for such
purpose. If, under the laws of any jurisdiction to which the Partnership or this
Agreement is subject, the removal or withdrawal of the Managing Partner pursuant
to this Section 8.6(a) results in the Partnership being dissolved, then the
Partnership shall be deemed dissolved and reconstituted. Each Investor Partner
(and any
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person who hereafter becomes a substituted Investor Partner by his execution,
adoption, or acceptance of this Agreement) hereby consents to the continuation
or reconstitution of the Partnership pursuant to this Section 8.6(a) and
authorizes the substituted Managing Partner to certify on his behalf pursuant to
the power of attorney granted in Section 10.2, such Investor Partner's consent
to the continuation or reconstitution of the Partnership and to execute any
amendments to this Agreement required for such purpose.
The "Method of Payment" by the new Managing Partner for the removed
Managing Partner's interest must be fair and must protect the solvency and
liquidity of the Partnership. Where the termination is voluntary, the method of
payment will be deemed presumptively fair where it provides for a non-interest
bearing unsecured promissory note with principal payable, if at all, from
distributions which the terminated Managing Partner otherwise would have
received under the Partnership Agreement had the Managing Partner not been
terminated. Where the termination is involuntary, the method of payment will be
deemed presumptively fair where it provides for an interest bearing promissory
note coming due in no less than five years with equal installments each year.
(b) The Partnership, acting in accordance with a vote or consent of a
Majority in Interest of the Investor Partners, shall have the right pursuant to
Section 7 of the Program Agreement to remove MOC as Program Manager and
substitute a successor to act in such capacity.
ARTICLE IX
DISSOLUTION, RECONSTITUTION, LIQUIDATION, AND TERMINATION
SECTION 9.1 Dissolution. The Partnership shall be dissolved upon the
occurrence of any of the following:
(a) December 31, 20 ;
(b) the vote at a duly held meeting or consent in writing of a Majority
in Interest of the Investor Partners at any time;
(c) the sale, disposition, or termination of all or substantially all
of the Leases then owned by the Partnership;
(d) the bankruptcy, insolvency, or dissolution (except dissolution as a
consequence of merger, consolidation, recapitalization, or other reorganization
effected in accordance with Section 8.2) of the Managing Partner or the
occurrence of any other event which would permit a trustee or receiver to
acquire control of the property or affairs of the Managing Partner; provided
that neither the Managing Partner's filing of a voluntary petition or answer
seeking reorganization or similar relief under bankruptcy law, nor the Managing
Partner's reorganization or obtaining similar relief under such law shall cause
the dissolution of the Partnership;
(e) the adjudication of insolvency or bankruptcy of the Partnership, or
an assignment by the Partnership for the benefit of creditors;
(f) the withdrawal or retirement of the Managing Partner; or
(g) except as otherwise provided in this Section 9.1, the occurrence of
any other event which, under the laws of the State of Delaware, causes the
dissolution of a limited partnership.
The death, retirement, insanity, legal disability, insolvency, dissolution, or
withdrawal of any Investor Partner will not result in the dissolution or
termination of the Partnership, and, upon the occurrence of any such event, the
estate, personal representative, guardian, or other successor in interest of any
such Investor Partner or the Investor Partner, as the case may be, (i) will
continue to be liable for all of the debts and obligations of such Investor
Partner pursuant to
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this Agreement, (ii) may become a substituted Investor Partner only pursuant to
the provisions of Section 8.1, (iii) may transfer the Partnership interest of
such Investor Partner only pursuant to the provisions of Article VIII hereof,
and (iv) will not have any right to withdraw the Capital Contribution of such
Investor Partner except as expressly set forth in Section 9.3 of this Agreement.
SECTION 9.2 Covenant Not to Withdraw. Except as permitted by Section
9.3(c), each Partner covenants and agrees that it shall not cause the
dissolution of the Partnership by its voluntary withdrawal therefrom, either
directly, by dissolution or by any other voluntary act, provided that the
Managing Partner may withdraw upon the later to occur of (i) the completion of a
Partnership's primary drilling activities under the Drilling Program and (ii)
the fifth anniversary of the date that Investor Partners were admitted to the
Partnership. In order to exercise its right of withdrawal, the Managing Partner
must give the Investor Partners at least 120 days' advance written notice. In
the event the Managing Partner assigns its interest in the Partnership to a
person who becomes a substituted Managing Partner of the Partnership pursuant to
Section 8.2, the subsequent dissolution of the old Managing Partner shall not
terminate the Partnership and shall not be deemed to constitute a breach or
violation of the covenant contained in this Section 9.2.
SECTION 9.3 Reconstitution.
(a) In addition to the other rights and remedies the Investor Partners
may have hereunder or otherwise, in the event the Managing Partner withdraws or
retires from the Partnership (directly or as a result of the events causing
dissolution under Section 9.1(e)) and such withdrawal or retirement causes
dissolution of the Partnership, a Majority in Interest of the Investor Partners,
acting at a meeting of the Investor Partners to be held within 90 days following
receipt of written notice of such event from the Managing Partner, shall be
entitled to reconstitute the Partnership (the Partnership, as reconstituted, is
referred to herein as the "Reconstituted Partnership") and elect and substitute
a new Managing Partner (which may be the retiring Managing Partner). Such new
Managing Partner shall be entitled to acquire the Partnership interest of the
retiring Managing Partner on the same basis and in the same manner as is set
forth in Section 8.6. In connection with such acquisition the actions described
in Section 8.6 shall be taken by the new Managing Partner and the retiring
Managing Partner, and each Investor Partner (and any person who hereafter
becomes a substituted Investor Partner by his execution, adoption, or acceptance
of this Agreement) hereby consents to the admission of such new Managing Partner
as a substituted Managing Partner of the Partnership in the same manner, and
with the same effect, as consent is provided by the Investor Partners in Section
8.6. The retiring Managing Partner will pay all expenses concerning the
valuation of its Partnership Interest and expenses associated with transferring
management control incurred as a result of its withdrawal or retirement from the
Partnership.
(b) In the event a Majority in Interest but less than all of the
Investor Partners elect to reconstitute the Partnership pursuant to this Section
9.3, the Partners' capital accounts shall be adjusted by (i) assuming the sale
of all assets of the Partnership for cash at their respective fair market values
(as determined by an appraiser selected by the new Managing Partner) and the
payment of all Partnership debts and liabilities as of the date of the
reconstitution of the Partnership and (ii) debiting or crediting each such
capital account (other than the new Managing Partner's capital account, but
including the retiring Managing Partner's capital account (to the extent that
the retiring Managing Partner's Partnership interest was not purchased by the
new Managing Partner pursuant to subsection (a) above)) with its respective
share of the hypothetical gains or losses resulting from such assumed sales and
the hypothetical deductions or losses, if any, resulting from the assumed
payment of such debts and liabilities in the same manner as such capital account
would be debited or credited on the actual sales of such assets and the actual
payment of such debts and liabilities.
The new Managing Partner shall then sell for cash an amount of
Partnership oil and gas properties having a fair market value (as determined by
such appraiser) equal to the fair market value (so determined) of all
Partnership oil and gas properties times the ratio of the aggregate of the
positive capital account balances, as so adjusted, of the Investor Partners that
have not elected to reconstitute the Partnership and the retiring Managing
Partner (to the extent that the retiring Managing Partner's Partnership interest
was not purchased by the new Managing Partner pursuant to subsection
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(a) above) to the positive capital account balances, as so adjusted, of all
Partners. The new Managing Partner shall then distribute such cash to the
Investor Partners that have elected not to reconstitute the Partnership and to
the Managing Partner (to the extent provided above) in proportion to the
positive balances of their respective capital accounts, as so adjusted. Such
distribution shall take place by the later of (i) the end of the Partnership
taxable year in which the reconstitution occurs or (ii) 90 days after the date
of such reconstitution. Neither the retiring Managing Partner nor any Investor
Partner that has elected not to reconstitute the Partnership shall be liable to
the Partnership or any other Partner for the amount of any deficit balance in
his or its capital account after a distribution in liquidation of his or its
interest in the Partnership.
Notwithstanding the foregoing, the retiring Managing Partner shall have
the right to elect to receive a distribution in kind of oil and gas properties
having a fair market value (as determined by such appraiser) equal to the fair
market value (so determined) of all Partnership oil and gas properties times the
ratio of the positive balance in its capital account, adjusted as provided
above, to the positive capital account balances, as so adjusted, of all
Partners, subject to an obligation to become a party to the Program Agreement
and any operating agreements to which such properties are subject. Any interest
in Partnership properties distributed to the retiring Managing Partner shall be
subject to such liens, encumbrances, and restrictions as affect the properties
on the date of such distribution and will be subject to and operated in
accordance with the operating agreements then in effect.
All gain, loss, and amounts realized on the sale of Partnership oil and
gas properties by the new Managing Partner to provide cash for distribution to
such Investor Partners and to the retiring Managing Partner shall be allocated
to such Investor Partners and the retiring Managing Partner in the same
proportions as the proceeds of such sale are distributed; provided that if the
retiring Managing Partner or any Investor Partner elects to receive a
distribution of Partnership properties in kind, all gain, loss, and amounts
realized on such sales shall be allocated solely to the Partners receiving cash
in the same proportions as the proceeds of such sale are distributed.
The new Managing Partner, on behalf of the Investor Partners that have
elected to form the Reconstituted Partnership, shall retain for the benefit of
the Reconstituted Partnership all oil and gas properties of the Partnership
remaining after the distribution provided for above, and all other Partnership
assets, and the Reconstituted Partnership shall assume all debts and liabilities
of the Partnership. The Partnership oil and gas properties retained by the
Reconstituted Partnership shall be subject to such liens, encumbrances, and
restrictions as affect such properties on the date of the reconstitution of the
Partnership and will be subject to and operated in accordance with the operating
agreements then in effect. If the amount of property as of the date of the
reconstitution of the Partnership is not sufficient to satisfy the positive
balances in all of the Partners' capital accounts, as so adjusted, Partnership
property shall be sold (or distributed) and retained by the new Managing Partner
in the manner described above in proportion to the positive balances of the
Partners' respective capital accounts.
(c) In the event an Investor Partner withdraws from the Partnership,
the remaining Investor Partners hereby agree that the Partnership is to be
reconstituted immediately. The remaining Investor Partners hereby authorize the
Managing Partner to take such action as the Managing Partner deems necessary or
appropriate to effect such reconstitution and to continue the business of the
Partnership without interruption, including use by the Managing Partner of the
power of attorney granted by each remaining Investor Partner pursuant to Section
10.2 to execute on behalf of each such remaining Investor Partner any amendments
to this Agreement required for such purpose. The withdrawing Investor Partner
will pay all expenses incurred as a result of his withdrawal from the
Partnership. The withdrawing General Partner shall remain subject as a General
Partner with respect to any liabilities or obligations of the Partnership
arising prior to such withdrawal. Upon withdrawal from the Partnership, a
General Partner is entitled to continue to receive any distributions to which he
is otherwise entitled under this Agreement for the period prior to his
withdrawal; however, such General Partner shall not be entitled to receive the
fair value of his interest in the Partnership as of the date of such withdrawal
based upon his right to share in distributions from the Partnership, and neither
the Partnership nor the Managing Partner has any obligation to repurchase any
interest in the Partnership from the withdrawing General Partner. The
withdrawing General Partner will no longer be entitled to receive any
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distributions nor shall such General Partner have any rights as an Investor
Partner under this Agreement. The Sharing Ratios will be recalculated among the
Investor Partners without regard to the withdrawing General Partner's Capital
Contribution.
(d) In the event the Partnership is reconstituted pursuant to
subsection (c), the Partners' capital accounts shall be adjusted by (i) assuming
the sale of all assets of the Partnership for cash at their respective fair
market values (as determined by the Managing Partner or an appraiser selected by
the Managing Partner) and the payment of all Partnership debts and liabilities
as of the date of the reconstitution of the Partnership and (ii) debiting or
crediting each such capital account with its respective share of the
hypothetical gains or losses resulting from such assumed sales and the
hypothetical deductions or losses, if any, resulting from the assumed payment of
such debts and liabilities in the same manner as such capital account would be
debited or credited on the actual sales of such assets and the actual payment of
such debts and liabilities.
(e) The distribution of cash or property to the Investor Partners that
have elected not to reconstitute the Partnership in accordance with the
provisions of this Section 9.3 shall constitute a complete return to each such
Investor Partner of his Capital Contributions, to which each Investor Partner
(and any person who hereafter becomes a substituted Investor Partner by his
execution, adoption or acceptance of this Agreement) hereby consents, and a
complete distribution to such Investor Partner of his interest in the
Partnership and all Partnership property, and no such Investor Partner shall
have any recourse against the new or the retiring Managing Partner, the
Reconstituted Partnership or any other Investor Partner if the cash or property
so distributed or received shall be insufficient to return in full his Capital
Contributions.
(f) In the event of the bankruptcy of a General Partner which pursuant
to the Delaware Act results in the dissolution of the Partnership, each of the
remaining Partners hereby agrees that the Partnership shall be reconstituted
immediately, and authorizes the Managing Partner to take the actions described
in subsection (c) above. The trustee, receiver, or other successor in interest
of the bankrupt General Partner (i) will continue to be liable for all of the
debts and obligations of such General Partner pursuant to this Agreement, (ii)
may become a substituted General Partner only pursuant to the provisions of
Section 8.1, (iii) may transfer the Partnership interest of such General Partner
only pursuant to the provisions of Article VIII hereof, and (iv) will not have
any right to withdraw the Capital Contribution of such General Partner except as
expressly set forth in Section 9.4 of this Agreement.
SECTION 9.4 Liquidation and Termination. Upon dissolution of the
Partnership (unless it is reconstituted in accordance with Section 9.3), no
further business shall be conducted except for the taking of such action as
shall be necessary for the winding up of the affairs of the Partnership and the
distribution of its assets to the Partners. The Managing Partner shall act as
liquidator or may appoint in writing one or more liquidators who shall have full
authority to wind up the affairs of the Partnership and make final distribution
as provided herein; provided, however, that, if the Managing Partner is not able
to serve as liquidator and does not appoint a liquidator within a reasonable
time after dissolution, the liquidator shall be a person selected in writing by
a Majority in Interest of the Investor Partners. The liquidator shall proceed
diligently to wind up the affairs of the Partnership and make final distribution
as provided herein. Until final distribution, the liquidator shall continue to
operate the Partnership properties with all of the power and authority of the
Managing Partner. The liquidator is hereby authorized to take the following
action without the further consent or joinder of any Partner:
(a) As promptly as possible after dissolution and again after
completion of the liquidation and termination of the Partnership, the liquidator
shall cause a proper accounting to be made of the Partnership's assets,
liabilities, and operations through the last day of the month in which the
dissolution or termination occurs.
(b) The liquidator shall pay all of the debts and liabilities of the
Partnership (including all expenses incurred in liquidation) or otherwise make
adequate provision therefor (including but not limited to the establishment of a
cash escrow fund for contingent liabilities in such amount and for such term as
the liquidator may determine). To
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the extent cash required for this purpose is not otherwise available, the
liquidator may sell assets of the Partnership for cash.
(c) After making payment or provision for all debts and liabilities of
the Partnership, the liquidator shall sell all properties and assets of the
Partnership for cash as promptly as is consistent with obtaining the best price
therefor. All gain, loss and amount realized on such sales shall be allocated to
the Partners as provided in this Agreement, and the capital accounts of the
Partners shall be adjusted accordingly. The liquidator shall then distribute the
proceeds of such sales to the Partners to satisfy any positive balances in their
capital accounts, as so adjusted.
(d) Notwithstanding Section 9.4(c), in the event of a dissolution and
liquidation of the Partnership pursuant to an exchange or tender offer, the
liquidator may, after making provision for all debts and liabilities of the
Partnership, first adjust the capital account of each Partner by (i) assuming
the sale of all remaining assets of the Partnership for cash at their respective
fair market values (as determined by the liquidator in a manner consistent with
the terms of such exchange or tender offer) as of the date of the dissolution of
the Partnership and (ii) debiting or crediting each such capital account with
such Partner's respective share of the hypothetical gains or losses resulting
from such assumed sales in the same manner as such capital account would be
debited or credited on the actual sales of such assets. If such exchange or
tender offer is conducted pursuant to a disposition of all or substantially all
of the assets of the Partnership or is otherwise binding on the Partners, the
liquidator shall distribute all securities or other assets received from the
disposition of the Partnership assets to the Partners proportionately based on
the Partners' positive capital account balances, as so adjusted.
In the event of an exchange or tender offer that is not binding upon
all Partners, the liquidator shall then exchange for securities offered in the
exchange or tender offer oil and gas properties having a fair market value (as
determined by the liquidator as provided above) equal to the sum of the positive
balances in the capital accounts, as so adjusted, of the Partners who elect to
accept the exchange or tender offer. The liquidator shall then distribute such
securities to such accepting Partners on a basis reflecting the Partners'
respective positive balances, as so adjusted. The Managing Partner shall have,
with respect to its Interests, the right to elect to receive a distribution in
kind of Partnership oil and gas properties having a fair market value (as
determined by the liquidator as provided above) equal to the positive balance in
its capital account, adjusted as provided above. The liquidator shall then sell
the remaining property and distribute to the Investor Partners who elect not to
accept the exchange or tender offer all remaining cash in amounts proportionate
to any positive balances in such Partners' capital accounts, as so adjusted. All
gain, loss and amount realized on the sale of Partnership oil and gas properties
by the liquidator to provide cash for distribution to such Investor Partners
shall be allocated to such Investor Partners in the same proportions as the
proceeds of such sale are distributed.
(e) Any distributions to the Partners in liquidation of the Partnership
shall be made by the later of (i) the end of the taxable year in which the
liquidation (as such term is defined in Treasury Regulation
1.704-1(b)(2)(ii)(g)) occurs, or (ii) 90 days after the date of such
liquidation. No Partner with a deficit balance in his or its capital account
after such distribution shall be liable to the Partnership or any other Partner
for the amount of such deficit balance.
(f) Notwithstanding the foregoing, if upon dissolution of the
Partnership any Partner shall be indebted to the Partnership as a result of the
failure to make a Capital Contribution required under this Agreement or
otherwise, the liquidator shall retain such Partner's share of cash or property
that would otherwise be distributed and apply such cash or property and the
income therefrom to the liquidation of such indebtedness and the cost of the
operation of such assets during the period of such liquidation; provided, if the
amount of such indebtedness has not been liquidated pursuant to the above
procedure or otherwise paid by such Partner within six months of the dissolution
of the Partnership, the liquidator may sell all or any portion of such property
at a public or private sale for what is in the sole judgment of the liquidator
the best price obtainable. The proceeds of such sale shall be applied to the
liquidation of the indebtedness then owing by such Partner, and the balance of
such proceeds, if any, shall be distributed to such Partner.
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(g) The liquidator shall comply with any requirements of the Delaware
Act and all other applicable laws pertaining to the winding up of the affairs of
the Partnership and the final distribution of its assets. The distribution of
cash or property to the Partners in accordance with the provisions of this
Section 9.4 shall constitute a complete return to the Partners of their Capital
Contributions and a complete distribution to the Partners of their interests in
the Partnership and all Partnership property, and no Partner shall have any
recourse against the Managing Partner or any other Partner if the cash so
distributed shall be insufficient to return in full his Capital Contributions.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF THE MANAGING PARTNER AND POWER OF ATTORNEY
SECTION 10.1 Representations and Warranties of the Managing Partner.
The Managing Partner hereby represents, warrants, and agrees as follows:
(a) The organization and operation of the Partnership are and will
continue to be in accordance with all applicable state statutes related to
limited partnerships.
(b) No election will be made by the Partnership to be excluded from the
provisions of Subchapter K of Chapter 1 of Subtitle A of the Code.
(c) The Managing Partner now has and will continue to have substantial
assets (in addition to its interest in the Partnership) which can be reached by
creditors of the Partnership and is acting and will continue to act as Managing
Partner on its own behalf and in no way merely as the agent of the Investor
Partners.
SECTION 10.2 Power of Attorney. Each Investor Partner by his execution
or adoption of this Agreement or a counterpart hereof irrevocably constitutes
and appoints the Managing Partner or its authorized agents and successors, each
with full power of substitution, the agent and attorney-in-fact of each Investor
Partner in the name, place, and stead of such Investor Partner to do any act
necessary or, in the opinion of the Managing Partner, appropriate to qualify the
Partnership to do business under the laws of any jurisdiction in which it is
necessary to file any instrument in writing in connection with such
qualification, and to make, execute, swear to, verify, acknowledge, amend, file,
record, deliver, and publish any instrument or document which may be necessary
or appropriate to carry out the provisions of this Agreement, including without
limitation, (a) a counterpart of this Agreement and a certificate of limited
partnership, (b) upon conversion of the General Partner Interests in accordance
with Section 1.9 any amended certificate of limited partnership or amendments to
any certificate of limited partnership required or permitted to be filed or
recorded under the statutes relating to limited partnerships under the laws of
any jurisdiction in which the Partnership shall engage or seek to engage in
business, (c) a counterpart of any amendment to this Agreement for the purpose
of (i) converting the General Partner Interests to Limited Partner Interests as
contemplated by Section 1.9, or (ii) admitting any substituted Managing Partner
or original or substituted Investor Partner or effecting any amendment of this
Agreement permitted to be made solely by the Managing Partner pursuant to
Section 9.3 and 11.2, (d) a counterpart of this Agreement or any amendment
hereto for the purpose of filing or recording such counterpart in any
jurisdiction in which the Partnership may own property or transact business, (e)
all certificates and other instruments necessary to qualify or continue the
Partnership as a limited partnership or a partnership wherein the Limited
Partners have limited liability, in the jurisdictions where the Partnership may
own property or be doing business, (f) any fictitious or assumed name
certificate required or permitted to be filed by or on behalf of the
Partnership, (g) any other instrument which is now or which may hereafter be
required by law to be filed for or on behalf of the Partnership which does not
increase the obligations of the Investor Partners, (h) any offers to lease,
Leases, assignments, and requests for approval of assignments, statements of
citizenship, interest and holdings, and any other instruments or communications
now or hereafter required or permitted to be filed on behalf of the Partnership
or the several Partners of the Partnership in their capacities as such under any
law relating to the leasing of government land for oil and gas exploration or
production, (i) an authorized certificate or other instrument evidencing the
dissolution or termination of the Partnership when such
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shall be appropriate, in each jurisdiction in which the Partnership shall own
property or do business, (j) all ballots, consents, approvals, or certificates
and other instruments appropriate or necessary, in the judgment of the Managing
Partner, to make, evidence, give, confirm, or certify any vote, consent,
approval, election, agreement, or other action which is made or given hereunder
or which is deemed to be made or given hereunder or is consistent with the terms
of this Agreement or appropriate or necessary, in the judgment of the Managing
Partner, to effectuate the terms or intent of this Agreement, and all amendments
to this Agreement giving effect to, implementing, adopting or reflecting any
such vote, consent, approval, election, agreement, or other action; provided,
however, that when any such vote, consent, approval, election, agreement, or
other action may be made or given only by a Majority in Interest of the Investor
Partners, the Managing Partner may exercise the power of attorney granted in
this clause (j) only after a Majority in Interest of the Investor Partners has
so acted, and (k) any other instruments necessary to conduct the operations of
the Partnership which do not increase the obligations of the Investor Partners,
and to perform any other duty or function necessary to conduct the business and
operations of the Partnership pursuant hereto. The existence of such power of
attorney shall not preclude execution of any such instrument by an Investor
Partner individually on any such matter. The power of attorney granted herein is
irrevocable and shall survive the assignment or transfer by an Investor Partner
of all or any part of his interest in the Partnership and, being coupled with an
interest, shall survive the death, incompetency, incapacity, dissolution or
termination of any Investor Partner. Any person dealing with the Partnership may
conclusively presume and rely upon the fact that any instrument executed by such
agent and attorney-in-fact is authorized, valid and binding without further
inquiry. This Agreement shall be controlling in the event of any conflict
between the terms and provisions of this Agreement and any document executed,
filed or recorded by the Managing Partner pursuant to the power of attorney
granted herein.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Notices. All notices, elections, demands, or other
communications required or permitted to be made or given pursuant to this
Agreement shall be in writing and shall be considered as properly given or made
if given by (i) personal delivery, (ii) expedited delivery service with proof of
delivery, (iii) registered or certified United States mail, postage prepaid, or
(iv) prepaid telegram, telex, or telecopier facsimile (provided that such
telegram, telex, or telecopier facsimile is confirmed by expedited delivery
service or by mail in the manner previously described), sent to the respective
addresses specified in Section 1.5, and shall be deemed to have been given
either at the time of personal delivery or, in the case of delivery service or
mail, as of the date of delivery at the address and in the manner provided
herein. Any Investor Partner may change his address by giving notice in writing
to the Managing Partner of his new address, and the Managing Partner may change
its address by giving notice in writing of its new address to the Investor
Partners.
SECTION 11.2 Amendment. In addition to the right of the Managing
Partner to amend this Agreement as provided below, any change, modification, or
amendment to this Agreement shall be effective if made by an instrument in
writing duly executed by a Majority in Interest of the Investor Partners.
Notwithstanding the foregoing, with respect to any change, modification, or
amendment to this Agreement which would (a) increase the liability or duties of
any of the Partners, (b) change the contributions required of any of the
Partners, (c) provide for any reallocation of profits, losses, or deductions to
the detriment of a Partner, (d) establish any new priority in one or more
Partners as to the return of Capital Contributions or as to profits, losses,
deductions, or distributions to the detriment of a Partner, or (e) cause the
Partnership to be taxed as a corporation, such change, modification or amendment
shall not be binding on such Partner unless contained in a written instrument
duly executed by such Partner. With respect to any change, modification, or
amendment to this Agreement which would change the name of the Partnership or
the location of the principal place of business of the Partnership or of the
Managing Partner, admit new or substituted Investor Partners, modify the
Managing Partner's interest in the Partnership as the result of a transfer of a
portion thereof pursuant to Section 8.2, Section 8.6 or Section 9.3, or cure any
ambiguity, formal defect, or omission or correct or supplement any provision
contained herein that may be inconsistent with any other provision contained
herein, any change, modification or amendment which the Managing Partner
determines does not adversely affect the Investor Partners in any material
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respect, and any change, modification, or amendment which the Managing Partner
believes is necessary or advisable to ensure that the Partnership is not and
will not be treated as an association taxable as a corporation for federal
income tax purposes or to conform with changes in applicable tax law (provided
such changes do not have a material adverse effect on the Investor Partners),
and any other changes, modifications, or amendments similar to any one or more
of the foregoing, such change, modification, or amendment may be contained in a
written instrument executed solely by the Managing Partner, provided that the
Managing Partner notifies the Investor Partners of such change, modification, or
amendment.
SECTION 11.3 Partition. Each of the Partners hereby irrevocably waives
for the term of the Partnership any right that such Partner may have to maintain
any action for partition with respect to Partnership property.
SECTION 11.4 Entire Agreement. This Agreement, the Program Agreement,
and the Subscription Documents executed by the Investor Partners constitute the
full and complete agreement of the parties hereto with respect to the subject
matter hereof, and supersedes all previous oral and written and all
contemporaneous oral negotiations, commitments, writings, and understandings.
SECTION 11.5 Severability. Every provision in this Agreement is
intended to be severable. If any term or provision hereof is determined to be
invalid, illegal, or unenforceable for any reason whatsoever, such invalidity,
illegality, or unenforceability shall not affect the validity, legality, and
enforceability of the remainder of this Agreement.
SECTION 11.6 No Waiver. The failure of any Partner to insist upon
strict performance of a covenant hereunder or of any obligation hereunder,
irrespective of the length of time for which such failure continues, shall not
be a waiver of such Partner's right to demand strict compliance in the future.
No consent or waiver, express or implied, to or of any breach or default in the
performance of any obligation hereunder shall constitute a consent or waiver to
or of any other breach or default in the performance of the same or any other
obligation hereunder.
SECTION 11.7 Evidence of Interest. At the sole option of the Managing
Partner, an Interest may be evidenced by a certificate in a form approved by the
Managing Partner. The Managing Partner shall not be required to issue any such
certificates, and, if such certificates are issued to any Investor Partner, the
Managing Partner shall not be required to issue similar certificates to all
Investor Partners.
SECTION 11.8 Applicable Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by and interpreted,
construed, and enforced in accordance with the laws of the State of Delaware,
except that (a) any laws of the State of Delaware regarding choice or conflicts
of law shall not be applied if the result would be the application of a
procedural or substantive law of another state or other jurisdiction and (b)
certain rights of the Investor Partners may be governed by the laws of their
state of residence.
SECTION 11.9 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors, and assigns; provided, however, that no
Partner may sell, assign, transfer, or otherwise dispose of all or any part of
his rights or interest in the Partnership or under this Agreement except as
provided in Article VIII.
SECTION 11.10 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which shall
constitute but one and the same document. The signature of any Investor Partner
on the Subscription Documents shall constitute the execution of this Agreement
by such Investor Partner.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MANAGING PARTNER
MEWBOURNE DEVELOPMENT CORPORATION
By:
----------------------------------------
Its: Chief Financial Officer and Treasurer
ORGANIZATIONAL PARTNER
---------------------------------------------
Curtis W. Mewbourne
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EXHIBIT B
DRILLING PROGRAM AGREEMENT
among
MEWBOURNE OIL COMPANY
MEWBOURNE DEVELOPMENT CORPORATION
and
MEWBOURNE ENERGY PARTNERS , L.P.
Dated as of
, 199
177
TABLE OF CONTENTS
PAGE
Section 1. Certain Defined Terms and References................................................................B-1
Section 2. Acquisition of Interests in Prospects...............................................................B-4
Section 3. Allocation of Costs.................................................................................B-5
Section 4. Allocation of Revenues..............................................................................B-6
Section 5. Ownership of Production.............................................................................B-7
Section 6. Management of Program...............................................................................B-7
Section 7. Removal of the Program Manager......................................................................B-9
Section 8. Reimbursement of the Program Manager...............................................................B-10
Section 9. Tax Partnership....................................................................................B-10
Section 10. Sales of Interests by MD..........................................................................B-10
Section 11. Assignment........................................................................................B-10
Section 12. Term and Amendment of Agreement...................................................................B-11
Section 13. Insurance.........................................................................................B-11
Section 14. Partnership Agreement.............................................................................B-11
Section 15. Entire Agreement..................................................................................B-11
Section 16. Headings..........................................................................................B-12
Section 17. Governing Law.....................................................................................B-12
Section 18. Attachments.......................................................................................B-12
Section 19. Counterparts......................................................................................B-12
Attachment A Tax Partnership Provisions
Attachment B Form of Operating Agreement - Incorporated by
reference to the form of Operating Agreement filed as
Exhibit 10.03 to the Registration Statement on Form
S-1, Registration No.
178
DRILLING PROGRAM AGREEMENT
THIS DRILLING PROGRAM AGREEMENT (this "Agreement"), dated as of , is
made by and among Mewbourne Oil Company, a Delaware corporation ("MOC"),
Mewbourne Development Corporation, a Delaware corporation ("MD"), and Mewbourne
Energy Partners , L.P., a Delaware Limited Partnership ("Partnership") of which
MD is the managing general partner.
WHEREAS, MD and the Partnership desire to participate in a drilling
program (the "Program"), whereunder MD and the Partnership will (a) jointly
acquire interests in certain Prospects and (b) participate in the development of
such Prospects, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto do hereby agree as follows:
Section 1. Certain Defined Terms and References.
(a) Certain Defined Terms. When used in this Agreement, the following
terms shall have the respective meanings assigned to them in this subsection (a)
or in the sections, subsections, or other subdivisions referred to below:
"Administrative Costs" shall mean customary and routine
expenses incurred by MD or its Affiliates for the conduct of the
administration of a Partnership or a Program, including, legal,
finance, accounting, secretarial, travel, office rent, telephone, data
processing, and other items of a similar nature.
"Affiliate" shall mean, with respect to another person,
(a) any person directly or indirectly owning, controlling
or holding with power to vote 10% or more of the
outstanding voting securities of or equity interests
in such other person,
(b) any person 10% or more of whose outstanding voting
securities or equity interests are directly or
indirectly owned, controlled, or held with power to
vote by such other person,
(c) any person directly or indirectly controlling,
controlled by, or under common control with such
other person,
(d) any officer, director, or partner of such other
person, and
(e) any company for which any such officer, director, or
partner acts in any such capacity. For purposes of
this Agreement, unless otherwise indicated, an
affiliate of MD shall include Affiliated Programs.
"Affiliated Program" shall mean a drilling, producing
property, income, royalty, or other program (whether in the form of a
partnership, joint venture, or otherwise), including the Partnership,
for or of which the Managing Partner or an Affiliate thereof serves as
manager or managing partner or acts in a similar capacity.
"Agreement" shall mean this Drilling Program Agreement, as
amended from time to time.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Due Diligence Fees" shall mean fees to be paid to the
soliciting dealers, which may be in an amount of up to .5% of the sales
price of interests sold to persons other than
o officers, directors or employees of MD or its
Affiliates,
o officers, directors, employees, or registered
representatives of a soliciting dealer, or
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o an Affiliate of MD.
"Lease" shall mean an oil and gas lease or an oil, gas and
mineral lease, a Working Interest, an interest (including certain
non-consent interest) arising under a pooling order or operating
agreement, an interest acquired under a farmout, operating rights under
governmental tracts, a mineral interest, royalty, or other interest in
and to oil, gas, and related hydrocarbons (or a contractual right to
acquire or earn such an interest), or an undivided interest therein or
portion thereof (including those covering only certain Horizons or
depths), together with all easements, permits, licenses, servitudes,
and rights-of-way situated upon or used or held for future use in
connection with the exploration, development, or operation of such
interest.
"Lease Acquisition Cost" shall mean, when used to describe the
costs of any Lease, the sum of (a) all monetary consideration paid or
given for such Lease to a non-Affiliate of the Managing Partner,
including but not limited to lease bonuses and advance rentals paid to
a non-Affiliate of the Managing Partner, (b) all costs of lease
acquisition and title examination including but not limited to curing
or defending title, title insurance or examination costs, brokerage
commissions, the fees and wages of landmen and lease brokers and their
expenses, filing fees, recording costs, transfer taxes, and like
charges paid in connection with the acquisition of such Lease, (c) all
delay rentals and other similar payments and ad valorem taxes paid by
the seller with respect to such Lease, (d) such portion as may be
allocated to such Lease in accordance with generally accepted
accounting principles and industry standards of all reasonable,
necessary, and actual costs and expenses of MD or its Affiliates for
geological, geophysical, seismic, land, engineering, drafting,
accounting, legal, and other like services together with related
administrative and general overhead costs involved in lease acquisition
and Prospect evaluation including such costs and expenses which could
otherwise be classified hereunder as Administrative Costs, (e) such
portion as may be allocated to such Lease in accordance with generally
accepted accounting principles and industry standards of all costs and
expenses incurred in the acquisition of farmouts, subleases, pooling
orders, or other oil and gas interests, (f) interest and points
actually incurred on funds borrowed to pay any of the costs and
expenses described in clauses (a) through (e) above calculated from the
date of their incurrence until the date of their reimbursement by the
Drilling Program at the time a Lease is acquired by the Drilling
Program, and (g) with respect to Leases held on the date hereof by or
acquired thereafter by MD or an Affiliate thereof, an interest in which
is transferred to the Participants pursuant to this Agreement, the
costs of such transfer; provided that the expenses described in clauses
(c), (d), (e), and (f) shall have been incurred by MOC or its
Affiliates not more than 36 months prior to the acquisition by the
Drilling Program of such Lease; and provided further, that such time
limitation shall not be applicable to Leases having a primary term of
five or more years. Lease Acquisition Costs of a Lease shall not
include any costs or expenses otherwise allocable herein to such Lease
and which represent costs or expenses incurred in connection with the
past drilling of wells which are not producers of sufficient quantities
of oil or natural gas to make commercially reasonable their continued
operation.
"Managing Partner" shall mean Mewbourne Development
Corporation, a Delaware corporation, and any person who becomes a
substituted managing partner of a Partnership, in accordance with the
terms of the Partnership Agreement.
"Operating Agreement" shall mean a Model Form Operating
Agreement based upon the American Association of Petroleum Landmen Form
610-1989 and, among the other attached exhibits thereto, an accounting
procedure for joint operations issued by the Council of Petroleum
Accountants Societies of North America, each of which containing
modifications that are customary and usual for the geographic area in
which the Partnership intends to conduct operations.
"Operating Costs" shall mean all expenditures made and costs
incurred in producing and marketing oil and gas from completed wells,
including, in addition to labor, fuel, repairs, hauling, materials,
supplies, utility charges, and other costs incident to or therefrom, ad
valorem and severance taxes, insurance and casualty loss expense, and
compensation to well operators or others for services rendered in
conducting such operations.
"Participants" shall mean MD and the Partnership, and
"Participant" shall mean MD or the Partnership, individually.
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"Partners" shall mean the partners of the Partnership.
"Partnership" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Partnership Agreement" shall mean the Agreement of
Partnership dated , creating the Partnership and designating
MD as the Managing Partner of the Partnership.
A "person" shall mean any natural person, partnership,
corporation, association, trust, or other legal entity.
"Program" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Program Manager" shall mean MOC and any person who becomes
the manager of the business and affairs of the Program in accordance
with Section 7 of this Program Agreement.
"Program Well" shall mean any well in which the Participants
have an interest pursuant hereto.
"Prospect" shall mean an area covering lands which, in the
opinion of the Program Manager, contains subsurface structural or
stratigraphic conditions making it susceptible to the accumulation of
oil or gas in commercially productive quantities at one or more zones
or horizons. The area, which may be different for different Horizons,
shall be designated by the Program Manager in writing prior to the date
on which a well is spudded (i.e. boring is commenced) thereon and shall
be enlarged or contracted from time to time on the basis of
subsequently acquired information to define the anticipated limits of
the associated oil and gas reserves and to include all acreage
encompassed therein. A "Prospect" with respect to a particular Horizon
may be limited to the minimum area permitted by state law or local
practice, whichever is applicable, to protect against drainage from
adjacent wells if the well to be drilled by the Partnership is to a
Horizon containing Proved Reserves.
"Prospectus" shall mean the Prospectus dated , ,
as amended or supplemented from time to time, describing the offer and
sale of interests in the Partnership.
"Reporting and Legal Expenses" shall mean all third party
accounting fees, costs, and expenses associated with obtaining audits
of books and records, third party engineering fees, costs, and expenses
associated with annual reserve reports, and third party attorney's fees
and other legal fees, costs, and expenses associated with matters that
are attributable to the Drilling Program's or the Partnership's
business.
"Sales Commissions" shall mean the sales commissions to be
paid to the Soliciting Dealers, which may be in an amount of up to 8%
of the sales price of interests sold to persons other than:
o officers, directors or employees of MD or its
Affiliates,
o officers, directors, employees, or registered
representatives of a soliciting dealer, or
o an Affiliate of MD.
"Soliciting Dealers" shall mean those persons who are
authorized to act as registered representatives by the National
Association of Securities Dealers, Inc. and have contracted with MD to
offer and sell interests in a Partnership.
"Working Interest" shall mean an interest in an oil and gas
lease which is subject to some portion of the costs of development,
operation, or maintenance.
(b) Other Defined Terms. The following terms shall have the respective
meanings assigned to them in the Prospectus:
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"Intangible Drilling Costs"
"Organization and Offering Expenses"
"Proved Reserves"
"Tangible Costs"
(c) References. All references in this Agreement to sections,
subsections, and other subdivisions refer to corresponding sections,
subsections, and other subdivisions of this Agreement unless expressly provided
otherwise. The words "this Agreement," "this instrument," "herein," "hereof,"
"hereby," "hereunder" and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. Words
in the singular form shall be construed to include the plural and vice versa,
unless the context otherwise requires.
Section 2. Acquisition of Interests in Prospects.
(a) Prospects Subject to this Agreement. Subject to the terms and
conditions hereof, the Participants shall acquire undivided interests in Leases
within Prospects selected by the Program Manager in its sole discretion from
time to time. At the time any Lease within a Prospect is acquired, the Program
Manager shall designate the area comprising the Prospect in the manner provided
in the definition of such term (if the Prospect has not been previously so
designated). Prospects may be limited to certain stated depths and may include
areas in which Leases may or may not have been acquired. The Program Manager
shall maintain records showing the Prospects (and depths if limited by depth) so
designated. In the case of certain Prospects, the designation of Prospects may
conform generally to the geographic limits of individual Leases. In some cases,
where known reservoirs cover large geographic areas and subsequent drilling does
not depend directly on results obtained by the Program Wells, Prospects may be
directly adjacent or in close proximity to other Prospects. Leases on lands
which are contiguous or in the vicinity of each other may constitute more than
one Prospect, and a zone or horizon under an area may constitute a Prospect
separate and apart from another zone or horizon which lies in whole or in part
under the same area. With respect to any Prospect that is not limited to a
particular zone or horizon and which is in any large continuous known
stratigraphic trend or formation which could be defined as a continuous
reservoir, the Program Manager may reduce the areal extent included in such
Prospect to that area which covers the spacing unit or proration unit prescribed
by the appropriate regulatory authority on such Prospect or permitted by local
practice, whichever is applicable, and such additional area, if any, as the
Program Manager determines reasonable. A Prospect which is limited to a
particular zone or horizon may be limited to that area which covers the spacing
unit or proration unit prescribed by the appropriate regulatory authority on
such Prospect or permitted by local practice, whichever is applicable, to
protect against drainage from adjacent wells if the well to be drilled by the
Program is to a horizon containing Proved Reserves. The area of a Prospect may
be enlarged or contracted from time to time by the Program Manager in the
reasonable exercise of its judgment. The Program Manager and its Affiliates
shall have no obligation to assign to any of the Participants any Lease held as
of the date hereof by the Program Manager or any such Affiliate or any Lease
acquired by the Program Manager or any such Affiliate after the date hereof.
The amount of the undivided interest in Leases to be assigned to the
Participants by the Program Manager shall be determined solely by the Program
Manager and the Managing Partner of the Partnership, taking into account the
nature of the risks associated with the drilling of wells on such Leases, the
estimated costs of such drilling, the amount of funds available from the
Partnership for such drilling and such other factors as the Program Manager and
the Managing Partner shall in good faith determine. The Program shall have no
right to acquire the entire interest in any such Lease, and the Program Manager
and Affiliates thereof shall have the right to acquire or retain a portion of
such interest in their own name, for their own account, or for the account of
others. Any such interest so acquired or retained by the Program Manager or such
Affiliate shall be held independently and not as a part of the Program and shall
not be subject to the terms and provisions of this Agreement.
The undivided interests in all Leases acquired by the Program shall be
acquired and held by the Program Manager for the benefit of the Participants
hereto as follows: the Partnership 60% and MD 40%. Following commencement of
production from a Program Well, the Program Manager shall assign and convey to
the Partnership and MD the above-described undivided interests in the Leases
proportionally reduced as to the interest acquired by the Program insofar as
such Leases pertain to the spacing or proration unit prescribed by regulatory
authority for such productive Program Well.
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(b) Sales of Leases to the Program. Any sale, transfer, or conveyance
of a Lease to the Program by the Managing Partner or any Affiliate thereof,
including an Affiliated Program, shall be subject to the restrictions contained
in Section 5.10(h) of the Partnership Agreement.
(c) Acquisition Price. The price to be paid by the Participants with
respect to their acquisition of an interest in a Lease pursuant to this Section
2 shall be an amount equal to the Participants' respective shares, as set forth
in Section 3(a) of either (i) the Lease Acquisition Costs with respect to such
Lease or (ii) as provided in Section 5.10(h) of the Partnership Agreement, the
fair market value of such Lease.
(d) Conveyance. With respect to the Leases within Prospects that are
acquired by the Participants hereunder, the interests in such Leases so acquired
shall cover all depths and horizons designated by the Program Manager as
comprising such Prospect and as contemplated in Section 2(a) such interests
shall be assigned, conveyed and transferred by the Program Manager or an
Affiliate thereof pursuant to a special warranty deed. Further, any such
assignment by the Program Manager or an Affiliate thereof shall be made with
full substitution and subrogation in and to all rights and actions of warranty
which the Program Manager or such Affiliate may have against all former owners.
(e) Assignments of Record. Following commencement of production from a
Program Well, as contemplated in Section 2(a) the Program Manager shall cause
record title to the Participants' respective interests in such Program Well to
be placed in the names of MD and the Partnership (or its designated nominee),
except (i) where record title is held in the name of a third party (as in the
case where pursuant to industry practice record title is held by a third party,
such as a pooled operating interest), in which event the Program Manager shall
place of record MD's and the Partnership's interests promptly following the
receipt by the Program Manager or an Affiliate thereof of an assignment from
such third party, (ii) in the case of a federal, state, or other Lease where an
approval to the transfer is required, in which event the Program Manager shall
take steps to obtain approval from appropriate authorities of the assignment of
MD's and the Partnership's interests in any such Lease as promptly as possible
following the time that such assignment is to be made hereunder (iii) in the
case where delays in the recording of assignments occur because of the practices
of the recording office or officers, (iv) in the case of Indian or other Leases
where the royalty interest or other term of any such Lease is required to be
renegotiated as a condition to the lessor's consent to the assignment of MD's
and the Partnership's interests, in which event MD's and the Partnership's
interests in such Lease shall be held in the name of the Program Manager as
nominee for MD and the Partnership so long as any such arrangement does not
jeopardize the validity or substance of such Lease or subject it to forfeiture
or other penalty, or (v) where the interests in the Lease to be assigned to MD
and the Partnership cannot be exactly determined because of pooling or
unitization laws, rules or regulations or agreements, the rights of third
parties under area of mutual interest or other agreements, or other similar
circumstances, in which event the Program Manager shall promptly proceed to
determine such interests and shall place them of record as promptly as possible.
(f) Title Examination. Prior to drilling a Program Well on a Prospect,
the Program Manager shall cause to be done or be satisfied that there has been
done such title examination and other title curative work as the Program
Manager, in its sole discretion, shall determine to be necessary or appropriate
in accordance with general industry standards.
Section 3. Allocation of Costs. The costs of activities and operations
conducted pursuant to this Agreement shall be allocated to and paid by the
parties hereto as follows:
(a) Organization and Offering Expenses, Sales Commissions and Due
Diligence Fees. All Organization and Offering Expenses, Sales Commissions and
due Diligence Fees attributable to the Partnership shall be allocated to and
paid to MD and MD shall receive a contribution credit in respect of such
Organization and Offering Expenses, Sales Commissions and Due Diligence Fees;
provided that such credit may not exceed an amount equal to 15% at the initial
capital contributions made to the Partnership by the Partnership.
(b) Lease Acquisition Costs. MD shall contribute or cause to be
contributed to the Program all Leases to be acquired by the Program and shall
receive a contribution credit in respect of the contributed Leases equal to the
acquisition costs of the contributed Leases (which shall be determined in
accordance with Section 2(c)).
(c) Intangible Drilling Costs. All Intangible Drilling Costs shall be
allocated entirely to the Partnership.
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(d) Tangible Costs. All Tangible Costs shall be allocated entirely to
the Partnership; provided, however, that to the extent, if any, that the total
costs allocated to MD pursuant to paragraphs (a) and (b) above are less than an
amount equal to 42% of the aggregate capital contributions initially made by
Partners to the Partnership ("Deficit Amount"), then MD shall be allocated an
amount of Tangible Costs equal to the Deficit Amount; provided, further, that in
determining the amount of total costs allocated to MD pursuant to paragraphs (a)
and (b) above for purposes of this paragraph (d) any costs allocated pursuant to
paragraph (a) above in excess of an amount equal to 15% of the initial capital
contributions made to the Partnership by the Partners shall not be considered.
(e) Operating Costs and Reporting and Legal Expenses. All Operating
Costs and Reporting and Legal Expenses incurred with respect to Program Wells
shall be allocated 40% to MD and 60% to the Partnership.
(f) Administrative Costs. All Administrative Costs incurred by the
Program Manager or any of its Affiliates in managing and conducting the business
and affairs of the Partnership or the Program, including expenses incurred in
providing or obtaining such professional, technical, administrative and other
services and advice as the Program Manager may deem necessary or desirable shall
be allocated 40% to MD and 60% to the Partnership and shall be reimbursed by the
Participants pursuant to Section 8.
(g) Other Costs. All other costs incurred shall be allocated 40% to MD
and 60% to the Partnership.
Section 4. Allocation of Revenues. Except as provided in Attachment A
attached hereto, all revenues attributable to the activities and operations
conducted pursuant to this Agreement shall be allocated to and received by the
parties hereto as follows:
(a) Revenues from Program Operations. Subject to subparagraph (b)
below, all revenues from Program operations, including without limitation, all
revenues directly or indirectly resulting from the investment of revenues from
Program operations, shall be allocated 40% to MD and 60% to the Partnership.
(b) Revenues from Disposition of Program Assets.
(i) Revenues resulting from the sale or other taxable
disposition of an oil and gas property (as such term is defined in
Section 614 of the Code) shall be allocated, (A) to the extent such
revenues constitute a recovery of the Program's simulated tax basis in
such property, to the parties in the same percentages as the simulated
tax basis of the property sold was allocated up to an amount equal to
the Program's simulated tax basis in such property at the time of such
sale, and (B) thereafter, to the parties in a manner which will cause
the aggregate of all revenues allocated to the parties from such sale
or disposition and from all prior sales (to the extent possible) to
equal the amounts which would have been allocated to the parties if all
such revenues had been allocated 40% to MD and 60% to the Partnership.
For purposes of computing the simulated tax basis of any such property,
depletion deductions shall be computed as provided in paragraph 4(c) of
Attachment A without regard to depletion deductions actually claimed by
the parties under paragraph 6(d) of Attachment A.
(ii) All revenues resulting from the rental, sale or other
disposition of any item of depreciable property shall be allocated (A)
to the extent such revenues constitute a recovery of the Program's
adjusted tax basis in such property, to the parties in the same
percentages as the adjusted tax basis of the property sold was
allocated up to an amount equal to the Program's adjusted tax basis in
such property at the time of such sale, and (B) thereafter, to the
parties in a manner which will cause the aggregate of all revenues
allocated to the parties from such rental, sale or other disposition
and from all prior rentals or sales (to the extent possible) to equal
the amounts which would have been allocated to the parties if all such
revenues had been allocated 40% to MD and 60% to the Partnership.
(iii) All revenues resulting from the disposition of any other
property shall be allocated 40% to MD and 60% to the Partnership.
(iv) All dry hole and bottom hole and similar contributions
shall not be considered to be revenues hereunder but shall be applied
to reduce the Intangible Drilling Costs of the respective Program Wells
to which they relate.
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Section 5. Ownership of Production.
Each Participant shall have the right to take in kind or separately
dispose of its proportionate share of all oil and gas produced from any Lease
subject to the Program pursuant to the terms of this Agreement. Any extra
expenditure incurred in the taking in kind or separate disposition by any party
hereto of its proportionate share of production shall be borne by such party.
Each party shall execute such division orders and contracts as may be necessary
for the sale of its interest in production from any such Lease. The proceeds
from the sale of all production produced, saved, and sold from any Prospect
herein shall be paid to MOC by all purchasing companies purchasing such
production, and by the execution of this Agreement, MOC and the Participants
covenant and agree to hold harmless all purchasing companies from any and all
liability by reason of paying any such proceeds to MOC. Further, the
Participants authorize and direct MOC to deduct from their proportionate share
of such proceeds from such sales all Operating Costs and other expenses and
costs of all types owed to MOC provided for under the terms of this Agreement
and remit the balance from the sale to the Participants. In the event any party
shall fail to make the arrangements necessary to take in kind or separately
dispose of its proportionate share of oil and gas produced from any such Lease,
the Program Manager shall have the right, but not the obligation, subject to the
revocation at will by the party owning such production, to purchase such oil and
gas or sell it to others at any time and from time to time for the account of
such party at a price competitive with the best price obtainable in the area for
such production. Any such purchase or sale by the Program Manager shall be
subject to the right of the owner of the production to exercise at any time its
right to take in kind, or separately dispose of, its share of all oil and gas
not previously delivered to a purchaser. Any purchase or sale by the Program
Manager of any other party's share of oil and gas shall be only for such
reasonable periods of time as are consistent with the minimum needs of the
industry under the particular circumstances.
Section 6. Management of Program.
(a) Program Affairs. The Participants hereby designate MOC as the
Program Manager who shall have the full and exclusive power and authority to
manage, control and administer the business and affairs of the Program and the
properties of the parties subject to this Agreement, except to the extent
otherwise set forth herein and in the Partnership Agreement.
(b) Well Operations. The Participants, hereby designate MOC, and MOC
agrees to act, as operator with respect to the drilling, testing, and any
attempted completion and equipping and operating (or plugging and abandoning, if
necessary) of any Program Well to be drilled or developed hereunder, except in
those instances in which (i) the Leases on which such Program Well is to be
drilled is already subject to an existing operating agreement under which a
third party (not MOC) has already been designated as operator, (ii) the
requisite number of third parties being joint working interest owners in such
Program Well decline to approve MOC as operator or (iii) a good faith
determination is made by MOC that it is not in the best interests of the
Participants and of MOC for it to act as operator. In conducting operations on a
Prospect, MOC may use its own personnel (including consultants retained by MOC),
properties and equipment and may subcontract with any other Affiliate of MOC to
perform such operations. The charge to MD and the Partnership for the use of
MOC's personnel (including consultants retained by MOC), properties and
equipment, the basis of pricing materials purchased by MD and the Partnership
from MOC or any Affiliate thereof and the basis of pricing materials purchased
by MOC or any Affiliate thereof from MD and the Partnership shall be as provided
in the Operating Agreement, subject to the terms of the Partnership Agreement.
(c) Operating Agreement. With respect to each Program Well for which
MOC is to serve as operator as contemplated in Section 6(b), all operations
relating to such Program Well, including without limitation, all costs and
expenditures of drilling, testing, completing, and equipping and operating such
Program Well shall be conducted pursuant to an Operating Agreement between MOC
as operator, and the Participants as non-operator. In the event, at the time of
acquisition of a Lease by the Participants, such Lease is subject to another
operating agreement or if MOC enters into an operating agreement with third
parties that are joint operating interest owners in such Program Well,
nevertheless, the Operating Agreement between MOC and the Participants shall
govern operations as between them, provided that MOC and the Managing Partner
shall have the right to amend the Operating Agreement between MOC and the
Participants covering certain of the Leases to conform to such other operating
agreement (provided, the Operating Agreement may not be amended as provided
above in any manner that the Managing Partner determines will adversely affect
the Partnership or the Partners in any material respect) and MOC shall have the
right to charge the Joint Account under the Operating Agreement between MOC and
the Participants a share attributable to the Participants' interest of
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any costs or expenses incurred by MOC under such other operating agreement which
are not otherwise provided for herein or in the Operating Agreement between MOC
and the Participants. To the extent that the terms of this Agreement and the
terms of the Operating Agreement attached hereto conflict, this Agreement
governs and takes precedence over the Operating Agreement.
(d) Program Funds; Distributions. Funds held by the Program Manager on
behalf of the Program, subsequent to their allocation to the Program, shall not
be commingled with funds of any other entity. If the Program Manager elects at
any time to distribute funds derived from revenues from Program operations or
the disposition of Program assets to any of the Participants, the Program
Manager shall be obligated at the same time to make distributions of funds from
such sources to the other Participants. All such distributions shall be made to
the Participants in the same percentages as the Participants are allocated
revenues of the Program pursuant to Section 4. At no time shall the Program or
the Program Manager on behalf of the Program retain in its accounts funds
required to be distributed to the Participants pursuant to the preceding
sentence. At least quarterly, any cash funds of the Program which the Program
Manager reasonably determines are not needed for the payment of existing or
anticipated Program obligations and expenditures shall be distributed to the
Participants.
(e) Access to Records. Each Participant and the Partners thereof shall
have access during normal business hours to all books and records relating to
the business and operations of the Program as provided in the Operating
Agreement, provided that the Program Manager may refuse for a reasonable time to
grant any Participant or any Partner thereof access to such books and records as
the Program Manager (i) has agreed shall be kept confidential or (ii) has
determined in good faith should be kept confidential considering the interests
of the Program and the Participants.
(f) Liability and Indemnification of Program Manager.
(i) Neither the Program Manager nor its Affiliates shall have
any liability to the Participants for any loss suffered by a
Participant that arises out of any action or inaction performed or
omitted relating to its duties or obligations or services rendered or
to be rendered pursuant to this Agreement or the Operating Agreement,
if the Managing Partner in good faith has determined, as of the time of
the conduct or omission, that the Program Manager's or its Affiliate's
course of conduct or omission was in the best interest of the
Participants, that the Program Manager or such Affiliate was acting on
behalf of or performing services for the Participants, and that such
conduct or omission did not constitute negligence or misconduct.
Termination of any action, suit or proceeding will not create a
presumption that the Managing Partner or its Affiliate did not act in
the best interest of the Partnership.
(ii) The Partnership shall indemnify the Program Manager and
its Affiliates against any losses, judgments, liabilities, expenses,
and settlements sustained or incurred by the Program Manager or such
Affiliates as a result of any threatened, pending or completed claim,
action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such claim, action, suit,
or proceeding, and any inquiry or investigation that could lead to such
a claim, action, suit, or proceeding and which in any such case relates
or which otherwise arises from or is attributable to (a) the fact that
the Program Manager is serving in such capacity or in the capacity as
the operator under the Operating Agreement or (b) any acts, omissions
or operations performed or omitted by the Program Manager or such
Affiliate on behalf of the Program or the Partnership or which
otherwise relates to the activities and business affairs of the Program
or the Partnership; provided that the Managing Partner has determined
in good faith, as of the time of the conduct or omission, that the
conduct or omission was in the best interest of the Partnership and
that the conduct or omission did not constitute negligence or
misconduct. Any such indemnity will be satisfied only out of the assets
of the Partnership and in no event will the Investor Partners be liable
therefor.
(iii) The Program Manager, acting on behalf of the Program,
may purchase and maintain insurance on behalf of the Program Manager
and its Affiliates against any liabilities asserted against or expenses
incurred by the Program Manager or its Affiliates in connection with
Program activities; provided, however, that the Participants (other
than MD) shall not incur the cost of that portion of such insurance, if
any, which insures the Program Manager or its Affiliates against any
liability with respect to which the Program Manager or its Affiliates
are denied indemnification under the provisions of this Agreement;
provided, however, that nothing contained herein shall preclude the
Program Manager from purchasing and paying for such types of insurance
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including without limitation, extended coverage liability and casualty
and workers' compensation, as would be customary for any person owning
comparable assets and engaged in a similar business, or from naming the
Program Manager and its Affiliates as additional insured parties
thereunder, provided, that the naming of such additional insured
parties does not add to premiums payable by the Program.
(iv) The termination of any claim, action, suit, or proceeding
by judgment, order, settlement, conviction, or a plea of nolo
contendere or its equivalent does not alone establish that a person
seeking indemnification under this Section 6(f) is disqualified. Any
person who is determined to be not entitled to indemnification under
this Section 6(f) may petition a court of competent jurisdiction for a
determination that in view of all facts and circumstances that such
person is fairly and equitably entitled to indemnity and the
Partnership shall provide such indemnity as may be determined proper by
such court; provided, however, that the court has determined that such
person has met the standard set forth in Section 6(f)(ii) above.
(v) Legal fees and expenses and other costs incurred as a
result of a claim described in this Section 6(f) shall be paid by the
Partnership from time to time in advance of the final disposition of
such claim if: (a) the claim relates to the performance or
non-performance of duties or services by the Program Manager or its
Affiliates rendered on behalf of the Program and the Participants, (b)
the claim is initiated by a third party who is not an Investor Partner,
or the claim is initiated by an Investor Partner and a court of
competent jurisdiction specifically approves such advancement, and (c)
the Program Manager or its Affiliate undertakes to repay the advanced
funds to the Partnership in the event it is later determined that the
Program Manager or such Affiliate is not entitled to indemnification
under the provisions of this Section 6(f).
(vi) To the extent that the Program Manager or its Affiliates
are successful on the merits or otherwise in defense of any claim,
action, suit, or proceeding referred to in this Section 6(f) or in
defense of any claim, issue, or matter therein, the Partnership shall
indemnify the Program Manager or its Affiliates, against the expenses,
including attorneys' fees, actually incurred by the Program Manager or
such Affiliate in connection therewith.
(vii) The indemnification provided by this Section 6(f) shall
continue as to the Program Manager and its Affiliates in the event the
Program Manager ceases to act in the capacity of manager of the Program
or as operator under the Operating Agreement with respect to events
occurring prior to the time such Program Manager or its Affiliate
ceased to act in such capacity and shall inure to the benefit of the
successors and assigns of the Program Manager and such Affiliates.
Section 7. Removal of the Program Manager.
The Partnership shall have the right to remove MOC as Program Manager
and to elect and substitute a successor to act in the capacity as Program
Manager; provided, the Partnership shall not have the right to remove MOC as
Program Manager and to elect and substitute a successor to act in such capacity
during the term that MD or any of its Affiliates serve in the capacity of
Managing Partner.
Section 8. Reimbursement of the Program Manager.
As may be requested by the Program Manager from time to time, the
Program Manager shall be reimbursed by the Participants for their respective
share of all General and Administrative Expenses and other costs and expenses
incurred by the Program Manager or any of its Affiliates in managing and
conducting the business and affairs of the Program, including expenses incurred
in providing or obtaining such professional, technical, administrative, and
other services and advice as the Program Manager may deem necessary or
desirable. Reimbursements of General and Administrative Expenses made by the
Partnership as a Participant hereunder shall be made in accordance with Section
5.9 of the Partnership Agreement, including without limitation, the provisions
contained in Section 5.9 of the Partnership Agreement which limit the amount of
such reimbursement.
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Section 9. Tax Partnership.
This Agreement and Attachment A attached hereto are not intended and
shall not be construed to create a joint venture, mining or other partnership
(general, limited, or otherwise) or association or to render the parties hereto
liable as partners. The parties expressly agree that no party hereto shall be
responsible for the obligations of the other parties, each party being severally
responsible only for its obligations arising hereunder and liable only for its
allocable share of the costs and expenses incurred hereunder. Each of the
Participants hereby agrees that this Agreement creates a partnership for federal
and state income tax purposes only, which tax partnership shall function and
exist as set forth in Attachment A attached hereto.
Section 10. Sales of Interests by MD.
Subject to paragraph 7 of Attachment A, MD shall have the right to sell
or otherwise dispose of the ownership interests in Leases held by it as part of
the Program and subject to this Agreement without obtaining the consent of the
Partnership. MOC, MD, and their Affiliates shall have the right to sell or
otherwise dispose of the ownership interests in Leases held by them for their
own account outside the Program and not subject to this Agreement on terms more
or less favorable to the party or parties acquiring such interests than those
terms contained in this Agreement with respect to the acquisition of interests
in such Leases by the Partnership, and the Partnership shall not have any claim
or right to any consideration or benefits derived therefrom.
Section 11. Assignment.
Except as otherwise provided herein, no party hereto shall have the
right to assign its rights or obligations under this Agreement without the
express written consent of the other parties, except in the event of the
following assignments:
(a) A disposition by MD of all or any portion of its rights or
obligations hereunder to one or more Affiliates of MD that also receive
an assignment of a proportionate part of MD's Managing Partner interest
in the Partnership pursuant to the terms of the Partnership Agreement;
(b) A disposition by MD or any Affiliate thereof of all or any
part of its rights or obligations hereunder to one or more persons that
have as a result of a merger, consolidation, corporate reorganization,
or other transaction acquired all or substantially all of the assets of
MD and have assumed the obligations of MD hereunder; or
(c) A disposition by MD or any Affiliate thereof of all or any
portion of its rights or obligations hereunder after the cessation of
substantially all drilling activities of the Program.
Any assignment shall be subject to paragraph 7 of Attachment A.
Notwithstanding anything in this Agreement to the contrary, MD shall have the
right at any time to mortgage, pledge, or encumber the oil and gas properties
and interests of MD under or subject to this Agreement to secure any debts or
obligations of MD or its Affiliates (whether or not such debts or obligations
are related to the Program). If MD receives a bona fide offer from an unrelated
third party to purchase an interest in any Lease in which the Partnership has
interests pursuant to this Agreement, MD shall request the offeror to make a
similar offer available to the Partnership.
Section 12. Term and Amendment of Agreement.
(a) This Agreement shall terminate upon the occurrence of any of the
following: (i) the dissolution of the Partnership, or (ii) upon the election of
MD after the cessation of substantially all drilling activities of the Program,
provided, in the case of clause (ii), that MD shall have given at least 120
days' notice to the Investor Partners of the Partnership prior to such
termination. Upon the occurrence of any of the foregoing events, the provisions
of paragraph 9 of Attachment A shall be applicable and the Participants shall be
subject to the terms of the Operating Agreement or such other operating
agreements as may then be in effect.
(b) This Agreement and Attachment A may only be amended, modified or
changed by a writing duly executed by MD, and the Partnership; provided that, to
the extent required under the terms of the Partnership Agreement,
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the Partnership shall execute or have executed on its behalf such a writing only
if the amendment, modification, or change shall have been approved or consented
to by a Majority in Interest of the Investor Partners thereof, to the extent
required by the Partnership Agreement, and, provided further, the consent of the
Partnership shall not be required if MD determines that the amendment,
modification, or change is necessary or advisable to ensure that the Program
Agreement conforms with any changes in or modifications to the Code or does not
adversely affect in a material manner the Investor Partners of the Partnership.
Section 13. Insurance.
The Program Manager or Affiliates thereof shall carry for the benefit
of the Participants insurance coverage in such amounts, with provisions for such
deductible amounts and for such purposes as are customarily carried by the
Program Manager or such Affiliates in its operations. To the extent practical,
all of the Participants shall be added as additional co-insureds under such
coverage. The Program Manager shall notify the Participants of any adverse
material change in the insurance coverage of the Program as soon as possible
after learning of such change. If possible, such notice shall be given 30 days
in advance of the change in insurance coverage. In the event that the insurance
coverage carried for the benefit of the Participants is materially reduced, the
Program, as soon as the Program Manager determines in its discretion that it is
reasonable under the circumstances to do so, will halt all drilling activity
until such time as comparable replacement insurance coverage is obtained.
Section 14. Partnership Agreement.
In the event of conflict between the provisions of this Agreement and
the provisions of the Partnership Agreement, the provisions of the Partnership
Agreement shall control unless otherwise expressly provided herein. This
Agreement is subject to the provisions of the Partnership Agreement in all
respects and all matters provided for herein shall also be governed by the
provisions of the Partnership Agreement.
Section 15. Entire Agreement.
This Agreement, together with Attachment A and Attachment B attached
hereto, constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof, and supersedes all previous oral and written and
all contemporaneous oral negotiations, commitments, writings and understandings.
Section 16. Headings.
The headings of the various sections, subsections, and other
subdivisions of this Agreement have been inserted for convenient reference only
and shall not be construed to enlarge, diminish, or otherwise change the express
provisions hereof.
Section 17. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas, except that any laws of such state regarding
choice or conflicts of law shall not be applied if the result would be the
application of a procedural or substantive law of another state or other
jurisdiction.
Section 18. Attachments.
Attachment A and Attachment B to this Agreement is attached hereto.
Such Attachments are incorporated herein by reference and made a part hereof for
all purposes, and references to this Agreement shall also include such
Attachments unless the context in which such references are used shall otherwise
require.
Section 19. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MEWBOURNE OIL COMPANY
By:
--------------------------------------
Title:
-----------------------------------
MEWBOURNE DEVELOPMENT CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
MEWBOURNE ENERGY PARTNERS , L.P.
By: MEWBOURNE DEVELOPMENT CORPORATION,
its Managing General Partner
By:
-----------------------------
Title:
--------------------------
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ATTACHMENT A
TAX PARTNERSHIP PROVISIONS
1. Relationship of the Parties. This Attachment and the Drilling
Program Agreement of which it is a part (in this Attachment called the
"Agreement") is not intended to create, nor shall such be construed as creating,
any mining partnership, commercial partnership or other partnership relation or
joint venture among the parties, and the liabilities of each of the parties
hereto shall be several and not joint or collective. The relationship created by
this Attachment and the Agreement shall be considered as a partnership solely
for United States federal and state income tax reporting purposes (and shall be
a partnership for those purposes only so long as this Attachment remains in
effect), as provided in paragraph 2 hereinbelow, and such relationship shall not
be a partnership to any other extent or for any other purpose. The relationship
of the parties hereunder is sometimes herein called the "tax partnership".
2. Elections with Respect to Tax Status. Notwithstanding anything to
the contrary in this Attachment or in the Agreement, each party hereto agrees,
so long as the provisions of this Attachment remain in effect, with respect to
all operations conducted under the Agreement,(a) not to elect any status under
Treasury Regulation Section 301.7701-3 other than as a partnership for federal
tax purposes, (b) not to elect to be excluded from the application of Subchapter
K of Chapter 1 of Subtitle A of the Code, and any provisions of applicable state
laws comparable to Subchapter K of Chapter 1 of Subtitle A of the Code, and (c)
to join in the execution of such additional documents and elections as may be
required in order to effectuate the foregoing. With respect to activities
conducted on Leases in which parties other than the Participants have an
interest, the Program Manager shall be authorized to elect on behalf of all
Participants that any joint operation with respect to any such Lease shall be
excluded from the application of Subchapter K of Chapter 1 of Subtitle A of the
Code, but no such election by the Program Manager shall have any impact on or
result in any change in the relationship among the Participants as set forth in
the first sentence of this paragraph 2. (Capitalized terms used in this
paragraph 2, if not otherwise defined in this Attachment, shall have the same
meanings as are provided in the Agreement.)
3. Term. The provisions of this Attachment shall be effective as of the
effective date of the Agreement and shall continue in full force and effect from
and after such date until the earlier of (a) the termination of the Agreement
among the parties pursuant to its terms, (b) upon the mutual agreement of the
parties, or (c) upon the occurrence of an event described in Section 708(b)(1)
of the Code. Upon the occurrence of any of the above-enumerated events, the
provisions of paragraph 9 hereinbelow shall be applicable.
4. Capital Contributions and Capital Accounts.
(a) The capital contributions of each party shall be all amounts paid
by it pursuant to the Agreement. With respect to each oil and gas property and
the related assets subject to the Agreement, each party shall be treated as
having contributed to the tax partnership an amount of cash equal to such
party's share of any Lease acquisition or other property costs and the tax
partnership shall be treated as having purchased such property from the party to
whom such amounts are paid.
(b) An individual capital account shall be maintained for each party in
accordance with the following:
(i) The capital account of each party shall, except as
otherwise provided herein, be (A) credited by the amount of cash and
fair market value of any property contributed to the tax partnership
(net of any liabilities assumed by the parties hereto or to which such
property is subject at the time of contribution) as provided in
subparagraph (a) of this paragraph 4, and (B) credited with the amount
of any item of taxable income or gain and the amount of any item of
income or gain exempt from tax allocated to such party.
(ii) The capital account of each party shall be debited by (A)
the amount of any item of tax deduction or loss allocated to such
party, (B) such party's allocable share of expenditures not deductible
in computing taxable income and not properly chargeable as capital
expenditures, including any non-deductible
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book amortizations of capitalized costs, and (C) the amount of cash or
the fair market value of any property (net of any liabilities assumed
by such party or to which such property is subject at the time of
distribution) distributed to such party (after making the adjustment
provided in subparagraph (b)(iii) in this paragraph 4).
(iii) Immediately prior to any distribution of property that
is not pursuant to a liquidation of the tax partnership, the parties'
capital accounts shall be adjusted by assuming that the distributed
assets were sold for cash at their respective fair market values as of
the date of distribution and crediting or debiting each party's capital
account with its respective share of the hypothetical gains or losses
resulting from such assumed sales determined in the same manner as
gains or losses provided for under paragraphs 4(b)(iv) and 6 for actual
sales of such properties.
(iv) The allocation of basis prescribed by Section
613A(c)(7)(D) of the Code and provided for in paragraph 6 hereinbelow
and each party's depletion deductions shall not reduce such party's
capital account, but such party's capital account shall be decreased by
an amount equal to the product of (A) the depletion deductions that
would otherwise be allocable to the tax partnership in the absence of
Section 613A(c)(7)(D) of the Code (computed without regard to any
limitations which theoretically could apply to any party) and (B) such
party's percentage share of the adjusted basis of the property with
respect to which such depletion is claimed (herein called "Simulated
Depletion"). The tax partnership's basis in any oil or gas property, as
adjusted from time to time for Simulated Depletion, is herein called
"Simulated Basis." No party's capital account shall be decreased,
however, by Simulated Depletion deductions attributable to any
depletable property to the extent such deductions exceed such party's
remaining Simulated Basis in such property. Upon the sale or other
disposition of an interest in a depletable property, each party's
capital account shall be credited with the gain ("Simulated Gain") or
debited with the loss ("Simulated Loss") determined by subtracting from
its allocable share of the amount realized on such sale or disposition
its Simulated Basis, as adjusted by Simulated Depletion.
(v) Any adjustments of basis of property provided for under
Sections 734 and 743 of the Code and comparable provisions of state law
(resulting from an election under Section 754 of the Code or comparable
provisions of state law) shall not affect the capital accounts of the
parties, and the parties' capital accounts shall be debited or credited
as if no such election had been made unless otherwise required by
applicable Treasury Regulations.
(vi) Capital accounts shall be adjusted, in a manner
consistent with subparagraph (b) of this paragraph 4, to reflect any
adjustments in items of income, gain, loss or deduction that result
from amended returns filed by the tax partnership or pursuant to an
agreement with the Internal Revenue Service or a final court decision.
(vii) In the case of property contributed to the tax
partnership by a party, the parties' capital accounts shall be debited
or credited for items of depreciation, Simulated Depletion,
amortization and gain or loss with respect to such property computed in
the same manner as such items would be computed if the adjusted tax
basis of such property were equal to its fair market value on the date
of its contribution to the tax partnership, in lieu of the capital
account adjustments provided above for such items, all in accordance
with Section 704(c) of the Code and Treasury Regulation
1.704-1(b)(2)(iv)(g).
5. Federal and State Income Tax Returns and Elections.
(a) The parties agree that the Program Manager shall prepare and file
the necessary federal and state partnership income tax returns and each party
agrees to furnish the Program Manager all pertinent information relating to
operations under the Agreement and this Attachment which is necessary for the
Program Manager to prepare and file such returns.
(b) The parties hereby authorize and direct the Program Manager to make
the following elections on the appropriate returns prepared and filed under
subparagraph (a) of this paragraph 5:
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(i) To elect to adopt the accrual method of accounting, and
such accounting shall be maintained on a calendar year basis;
(ii) To elect, in accordance with Section 263(c) of the Code
and applicable federal income tax regulations and comparable provisions
of state law, to expense all intangible drilling and development costs;
(iii) To elect to compute the allowance for depreciation or
cost recovery under the most accelerated tax depreciation method and
using the shortest life authorized by law with respect to all
depreciable assets; and
(iv) To make such other elections as may be deemed appropriate
by the Program Manager.
(c) The Program Manager shall be designated the tax matters partner (in
this paragraph 5(c) called the "TMP") as such term is defined in Section
6231(a)(7) of the Code with respect to operations conducted pursuant to the
Agreement and shall be indemnified by the other parties as provided in the
Drilling Program Agreement. The TMP is authorized to take such actions and to
execute and file all statements and forms on behalf of the tax partnership which
may be permitted or required by the applicable provisions of the Code or
Treasury regulations issued thereunder, and the parties to the Agreement will
take all other action that may be necessary or appropriate to effect the
designation of the Program Manager as the TMP. In the event of an audit of the
tax partnership's income tax returns by the Internal Revenue Service, the TMP
may, at the expense of the parties to the Agreement, retain accountants and
other professionals to participate in the audit.
6. Allocations. The parties agree that for United States federal and
state income tax reporting purposes the distributive share of each of the
parties in each item of income, gain, loss, deduction or credit, including,
without limitation, the items specifically mentioned below, shall be determined
as follows:
(a) Income realized from the sale of production of oil, gas or other
hydrocarbon substances shall be allocated to each party to whom proceeds from
the sale of such production are allocated or to whom such production is
distributed under the terms of the Agreement.
(b) Deductions attributable to intangible drilling and development and
production costs shall be allocated to each party in accordance with its
respective contributions to the payment of such costs.
(c) Depreciation or cost recovery deductions with respect to tangible
equipment shall be allocated to each party in accordance with its contribution
to the adjusted basis (within the meaning of Section 1011 of the Code) of such
equipment.
(d) The depletion deductions with respect to each oil and gas property
(as such term is defined in Section 614 of the Code) subject to the Agreement
shall be computed separately by each party. For purposes of such computation,
each party shall be considered to own, and shall be allocated, its proportionate
share of the adjusted basis in each oil and gas property subject to the
Agreement. A party's proportionate share of the adjusted basis of an oil or gas
property shall be equal to its relative interest in either (i) the capital used
to acquire (and capitalized in the adjusted basis of) such property (if the
property is acquired other than by way of a capital contribution by one or more
parties), or (ii) the adjusted basis of such property (if the property is
considered a capital contribution by one or more parties). Each party shall
separately keep records of its share of the adjusted basis in each oil and gas
property, adjust such share of the adjusted basis for any cost or percentage
depletion allowable on such property, and use such adjusted basis in the
computation of its gain or loss on the disposition of such property. For
purposes of computing such gain or loss, and notwithstanding anything in the
Agreement to the contrary, the amount realized from the sale or other taxable
disposition of a depletable oil and gas property (other than production of oil,
gas or other hydrocarbon substances) and depreciable tangible property, shall be
allocated in accordance with the allocation of revenues from the sale or other
taxable disposition of such properties under Section 4(b) of the Agreement. Upon
the request of the Program Manager, each party shall advise the Program Manager
of its adjusted basis in each oil and gas property as computed in accordance
with the provisions of this subparagraph (d).
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(e) Gains and losses from each sale, abandonment or other disposition
of property (other than depletable oil and gas properties and depreciable
tangible properties as provided in subparagraph (d) of this paragraph 6 and
production of oil, gas or other hydrocarbon substances as provided in
subparagraph (a) of this paragraph 6) shall be allocated to the parties in such
manner as will reflect the gains and the losses that would have been includable
in their respective income tax returns if such property were not subject to the
Agreement. In computing each party's gains and losses, each party shall take
into account its share of the proceeds derived from each sale, abandonment or
other disposition of such property during the year, selling expenses and its
respective contributions to the unadjusted cost basis of such property, less any
allowed or allowable depreciation, cost recovery, amortization, or other
deductions which have been allocated to it with respect to such property as
provided herein.
(f) Gains or losses realized on the taxable disposition of property
subject to this Agreement in excess of the gains or losses allocated under
subparagraphs (d) and (e) of this paragraph 6 with respect to such property, if
any, shall be allocated to the contributing party to the extent of such party's
pre-contribution gain or loss with respect to such property.
(g) All recapture of income tax deductions resulting from the sale or
other disposition of any property subject to the Agreement shall be allocated
among the parties in the ratios in which the deductions giving rise to such
recapture were allocated, but each party shall be allocated recapture only to
the extent that such party is allocated any gain from the sale or other
disposition of such property. The balance of such recapture, if any, shall be
allocated to the parties whose share of gain exceeds their share of recapture
("excess gain") and such balance shall be allocated among such parties in the
proportion which the excess gain of such party bears to the excess gains of all
parties.
(h) Income resulting from any dry hole or bottom hole monetary
contribution obtained from a third party in connection with the drilling of a
well or wells on the oil and gas properties subject to the Agreement shall be
allocated in the same manner as the costs of drilling such well or wells are
allocated.
(i) All other items of deduction and credit not falling within
subparagraphs (b) through (h) of this paragraph 6 shall be allocated to and
accounted for by each party in accordance with its respective contribution to
the costs resulting in such deductions and credits.
7. Sale of Program Prospects. The parties agree that any sale by a
party of any ownership interest in a Prospect held by such party as part of the
Program and subject to the Agreement shall be deemed to be a sale of all or a
portion of such party's interest in this tax partnership.
8. Termination of Party's Interest. Any distribution in termination of
any party's interest in the tax partnership other than pursuant to paragraph 9
shall be in an amount of cash or fair market value of property equal to the
capital account balance of such party at the time such interest is terminated,
after such capital account balance has been adjusted in accordance with
paragraph 4 and the applicable Treasury Regulations under Section 704(b) of the
Code, and shall be made by the later of (i) the end of the tax partnership
taxable year in which such termination occurs or (ii) within 90 days after the
date of such termination; provided, however, that if such capital account
balance is less than zero after taking into account such adjustments and the
distribution provided for in this paragraph 8, such party shall contribute an
amount of cash to the tax partnership sufficient to cause its capital account to
have a zero balance by the later of (i) the end of the tax partnership taxable
year in which such termination occurs or (ii) within 90 days after the date of
such termination.
9. Distributions upon Termination. Upon termination of the provisions
of this Attachment pursuant to paragraph 3 above, the activities of the parties
under this Attachment shall be concluded and the assets subject to the Agreement
and this Attachment shall be distributed to the parties in the manner and in the
order set forth below:
(a) Debts of the parties created pursuant to operations under the
Agreement, other than to the parties, shall be paid.
(b) Debts owed among the parties with respect to operations pursuant to
the Agreement shall be paid.
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(c) All cash on hand representing unexpended contributions by any party
shall be returned to the contributor.
(d) The parties' capital accounts shall be adjusted by (i) assuming the
sale of all remaining assets subject to the Agreement for cash at their
respective fair market values as of the date of termination of the Agreement and
(ii) debiting or crediting each party's capital account with the party's
respective share of the hypothetical gains or losses resulting from such assumed
sales in the same manner as such party's capital account would be debited or
credited under subparagraph (b) of paragraph 4 for gains or losses on actual
dispositions of such properties.
(e) If the capital account of any party (stated as a percentage of the
aggregate capital accounts of all parties) is less than that party's undivided
interest in Leases owned by the Participants, as set forth in Section 2(a) of
the Agreement, then such party may elect, upon ten days notice to the other
parties, to contribute cash to the tax partnership for distribution to the other
parties in an amount sufficient to cause such contributing party's capital
account (stated as a percentage of the aggregate capital accounts of all
parties) and its undivided interest in Leases owned by the Participants, as set
forth in Section 2(a) of the Agreement, to be equal.
(f) Thereafter, all remaining assets shall be distributed to the
parties by the later of (i) the end of the tax partnership taxable year in which
the termination occurs or (ii) 90 days after the date of such termination, in
accordance with their respective capital account balances as so adjusted;
provided, however that any party that has a capital account of less than zero
after taking into account the adjustments and distributions provided for
pursuant to and in the subparagraphs of this paragraph 9 shall contribute an
amount of cash to the tax partnership sufficient to cause its capital account to
have a zero balance by the later of (i) the end of the tax partnership taxable
year in which the termination occurs or (ii) 90 days after the date of such
termination. Any such contributions by parties having deficit capital account
balances shall be distributed to the remaining parties in accordance with their
respective positive capital account balances by the later of (i) the end of the
tax partnership taxable year in which the termination occurs or (ii) 90 days
after the date of such termination.
If property subject to the Agreement is distributed pursuant to this
paragraph, the amount of the distribution shall be equal to the fair market
value of the distributed property. In the event the parties do not agree as to
the fair market value of such property, the Program Manager shall cause a
qualified independent petroleum engineer to prepare an evaluation of the fair
market value of such property.
It is understood and agreed that it shall be the obligation of each
party to make such assignments as are required upon termination of the
provisions of this Attachment in accordance with the provisions of this
paragraph 9. Such assignments shall be made subject to the liability of each
assignee for costs, expenses and liabilities theretofore incurred or for which
commitment had been made by the Program Manager prior to the date of termination
and such costs, expenses and liabilities shall be allocated to such assignee
pursuant to this Attachment.
10. Effect of this Attachment. It is understood and agreed that in the
event the terms of this Attachment conflict with any of the terms and conditions
of the Agreement as between the parties hereto the terms of this Attachment
shall control with respect to the terms in conflict.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
All capitalized terms used and not defined in Part II of this Registration
Statement shall have the meanings assigned to them in the prospectus which forms
a part of this Registration Statement or the exhibits thereto.
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an itemization of the estimated costs which will be
incurred in connection with the sale of the securities registered hereby if
4,000 Limited Partner Interests and 16,000 General Partner Interests are sold.
Costs of Offering:
Securities Act of 1933 Registration Fee................................................... $ 5,560
National Association of Securities Dealers, Inc. Filing Fee............................... 2,500
Blue Sky Qualification Fees and Expenses.................................................. 26,000*
Printing.................................................................................. 75,000*
Legal Fees and Expenses................................................................... 200,000*
Accounting Fees and Expenses.............................................................. 10,000*
Expenses of Mewbourne Development Corporation Incurred in Connection
With the Distribution.................................................................... 100,000*
Miscellaneous............................................................................. 50,000*
Total..................................................................................... $ 469,060
==========
* Estimated
- ----------
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 5.4 of the partnership agreement provide that neither Mewbourne
Development Corporation nor any of its affiliate shall have any liability to a
partnership or to any partner thereof for any loss suffered by the partnership
that arises out of any action or inaction performed or omitted by Mewbourne
Development Corporation or such affiliate, unless the managing partner in good
faith has determined that such course of conduct or omission was not intended to
further the best interest of the partnership or that such course of conduct
constituted negligence or misconduct on the part of Mewbourne Development
Corporation or such affiliate. Section 6(f) of the drilling program agreements
provides parallel protection from liability to Mewbourne Oil Company, in its
individual capacity as the program manager, and affiliates of the program
manager.
Section 5.5 of the partnership agreements and Section 6(f) of the
drilling program agreements provides, subject to various conditions, for
indemnification of Mewbourne Development Corporation and its affiliates, and
each permit, subject to certain conditions, for insurance to be purchased and
maintained on behalf of Mewbourne Development Corporation and its affiliates
against any liabilities asserted against or expenses incurred by Mewbourne
Development Corporation and its affiliates in connection with activities of a
partnership or drilling program, as the case may be.
Section 17-108 of the Delaware Act provides that a Delaware limited
partnership may indemnify and hold harmless any partner or other person from and
against any and all claims and demands whatsoever.
Section 9 of the soliciting dealer agreements provide that the
partnerships and Mewbourne Development Corporation have agreed to indemnify the
soliciting dealers against certain liabilities, including certain liabilities
under the Securities Act of 1933. In addition, Mewbourne Development Corporation
may enter into similar agreements with certain soliciting dealers on behalf of
the partnerships under which Mewbourne Development Corporation and the
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partnerships will indemnify those soliciting dealers against certain
liabilities, including certain liabilities under the Securities Act of 1933.
As permitted by Section 102(b)(7) of the Delaware General Corporation
Law, Article 10 of each of Mewbourne Development Corporation's and Mewbourne Oil
Company's Certification of Incorporation contains a limitation of liability
provision under which a director will not be personally liable to Mewbourne
Development Corporation, Mewbourne Oil Company or their respective stockholders
for monetary damages resulting from breaches of his fiduciary duty of care as a
director, subject to certain limitations.
Article 7, Section 7 of each of Mewbourne Development Corporation's and
Mewbourne Oil Company's By-laws provides that Mewbourne Development Corporation
or Mewbourne Oil Company, as the case may be, shall indemnify its officer or
director to the fullest extent permitted under the Delaware General Corporation
Law. Section 145 thereof permits indemnification of an officer or director upon
a determination that such officer or director has met the applicable standard of
conduct. Under Section 145, such officer or director is required to have acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of Mewbourne Development Corporation and, with respect to any
criminal action, without reasonable cause to believe his conduct was unlawful.
Section 145 does not authorize indemnification, in actions brought by or in the
right of a corporation, against judgments, fines or amounts paid in settlement,
nor does it provide for indemnification of expenses incurred in the defense or
settlement of claims as to which a director or officer is adjudged to be liable
to Mewbourne Development Corporation or Mewbourne Oil Company, as the case may
be, unless specifically authorized by the Delaware Court of Chancery or the
court in which such action is brought.
The above discussion of the provisions of Section 5.5 of the
Partnership Agreement, Section 6(f) of the drilling program agreement, Section
17-108 of the Delaware Act, Sections 102(b)(7) and 145 of the Delaware General
Corporation Law, Article 10 of each of Mewbourne Development Corporation's and
Mewbourne Oil Company's Certificate of Incorporation, Article 7, Section 7 of
each of Mewbourne Development Corporation's and Mewbourne Oil Company's By-laws,
and the soliciting dealer agreements is not intended to be exhaustive and is
respectively qualified in its entirety by the applicable provisions of the
partnership agreements and drilling program agreements, the forms of which are
included as Exhibits A and B to the Prospectus forming a part of this
Registration Statement and are hereby incorporated herein by reference, the
Delaware Act and the Delaware General Corporation Law, Article 10 of each of
Mewbourne Development Corporation's and Mewbourne Oil Company's Certificate of
Incorporation , which are included as Exhibits 3.3 and 3.5, respectively, to
this Registration Statement and hereby incorporated herein by reference, Article
7, Section 7 of each of Mewbourne Development Corporation's and Mewbourne Oil
Company's By-laws, which are included as Exhibits 3.4 and 3.6, respectively, to
this Registration Statement and hereby are incorporated herein by reference, and
by the soliciting dealer agreements, the form of which is set forth as Exhibit
1.1 to the Registration Statement and is hereby incorporated herein by
reference.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In connection with the formation of a partnership, the organizational
partner of such partnership will contribute $100 to the partnership's capital.
Upon the initial admission of general and limited partners to that partnership,
the subscription of the organizational partner in the partnership will be
terminated and the $100 contribution will be returned to him. The partnerships
have not otherwise sold or issued within the past three years any securities
which were not registered under the Securities Act of 1933.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
NUMBER EXHIBIT
------ -------
1.1 -- Form of Soliciting Dealer Agreement to be entered
into between Mewbourne Development Corporation and
the Soliciting Dealers.*
1.2 -- Form of Dealer Manager Agreement.*
3.1 -- Certificate of Limited Partnership of Mewbourne
Energy Partners 99-A, L.P.*
3.2 -- Form of Amendment to Certificate of Limited
Partnership of Mewbourne Energy Partners 99-A, L.P.*
3.3 -- Certificate of Incorporation of Mewbourne
Development Corporation.*
3.4 -- Bylaws of Mewbourne Development Corporation.*
3.5 -- Certificate of Incorporation of Mewbourne Oil
Company.*
3.6 -- Bylaws of Mewbourne Oil Company.*
4.1 -- Form of Agreement of Partnership of Mewbourne
Energy Partners -A, L.P. (filed as Exhibit A to the
Prospectus forming a part of this Registration
Statement).**
4.2 -- Form of Subscription Agreement (filed as Exhibit D
to the Prospectus forming a part of this Registration
Statement).*
4.3 -- Form of Special Subscription Instructions (filed
as Exhibit C to the Prospectus forming a part of this
Registration Statement).*
4.4 -- Form of Certificate of Limited Partner Interest.*
4.5 -- Form of Certificate of General Partner Interest.*
5.1 -- Opinion of Vinson & Elkins L.L.P., as to the
legality of the securities registered hereby.**
8.1 -- Opinion of Vinson & Elkins L.L.P., as to certain
tax matters arising in connection with the securities
registered hereby.**
10.1 -- Form of Drilling Program Agreement among Mewbourne
Development Corporation, Mewbourne Oil Company and
Mewbourne Energy Partners -A, L.P. (filed as Exhibit
B to the Prospectus forming a part of this
Registration Statement).**
10.2 -- Form of Escrow Agreement between Mewbourne
Development Corporation and Bank of America Texas,
N.A.*
10.3 -- Form of Operating Agreement between Mewbourne
Energy Partners -A, L.P., Mewbourne Development
Corporation and Mewbourne Oil Company.**
23.1 -- Consent dated June 28, 1999 of
PricewaterhouseCoopers LLP, independent
accountants.**
23.2 -- Consent of Vinson & Elkins L.L.P. (included as
part of Exhibits 5.1).**
23.3 -- Consent dated June 28, 1999 of Forrest A. Garb &
Associates, Inc., independent engineers.**
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EXHIBIT
NUMBER EXHIBIT
------ -------
23.4 -- Consent of Vinson & Elkins L.L.P. (included as
part of Exhibit 8.1).**
24.1 -- Power of Attorney (included on the signature page
to the Registration Statement).*
27.1 -- Financial Data Schedule*
- ----------
* Previously filed
** Filed herewith
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes as follows:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement; provided, however, that subparagraphs
(1)(i) and (1)(ii) above do not apply if the Registration Statement is on Form
S-3 or Form S-8, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) that all post-effective amendments will comply with the applicable
forms, rules and regulations of the Securities and Exchange Commission in effect
at the time such post-effective amendments are filed.
(4) 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.
(5) to not identify to any third party any prospects that will be, or
are likely to be, purchased by a partnership with the proceeds from the sale of
the securities offered hereby or are representative of prospects which may be
purchased by the partnership with the proceeds from the sale of the securities
offered hereby, whether such third party is a soliciting dealer or other party
involved in making or directing investment decisions regarding the purchase of
the securities offered hereby, except to the extent such prospects have been
identified in the prospectus or an amendment thereto.
To the extent a review of prospects or lease inventory is permitted to
third parties:
(a) it will be incidental to a soliciting dealer's due
diligence examination;
(b) no reference to any specific prospect, unless such
prospect is described in the prospectus or an amendment to the
prospectus, will appear in any analysis or report on the securities
offered hereby prepared by such third party; and
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(c) any third party, prior to receiving permission to examine
prospects, will agree to the above conditions, and the Registrant will
file a copy of such agreement(s) as an exhibit to the Registration
Statement.
No prospective investors or their representative will be permitted to
examine any prospects or inventory or data related thereto that are not
described or set forth in the prospectus or an amendment to the
prospectus.
(6) to provide to the partners of a partnership the financial
statements required by Form 10-K for the first full fiscal year of operations of
the partnership.
(7) to send to each purchaser of the securities offered hereby, on at
least an annual basis, a detailed statement of any transactions by the
Partnership to which that purchaser has been admitted as a partner with the
Managing Partner or its affiliates and fees, commissions, compensation, and
other benefits paid or accrued to the Managing Partner or its affiliates for the
fiscal year completed, showing the amount paid or accrued to each recipient and
the services performed.
(8) to file a sticker supplement pursuant to Rule 424(c) under the
Securities Act of 1933 during the distribution period for the partnerships
describing each property not identified in the Prospectus at such time as there
arises a reasonable probability that such property will be acquired by such
Partnership and to consolidate all such stickers into a post-effective amendment
filed at least once every three months, with the information contained in such
amendment provided simultaneously to any existing general and limited partners
of such partnership. Each sticker supplement should disclose all compensation
and fees received by the Managing Partner and its affiliates in connection with
any such acquisition. The post-effective amendment shall include audited
financial statements meeting the requirements of Rule 3-05 of Regulation S-X
only for properties acquired during such distribution period.
(9) to file, after the end of the end of the distribution period, a
current report on Form 8-K containing the financial statements and any
additional information required by Rule 3-05 of Regulation S-X as such is
required under Item 7 of Form 8-K, to reflect each commitment (i.e., the signing
of a binding purchase agreement) made after the end of the distribution period
involving the use of 10% or more (on a cumulative basis) of the net proceeds of
the offering and to provide the information contained in such report to the
limited partners at least once each quarter after the distribution period of the
offering has ended.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
Mewbourne Development Corporation pursuant to the foregoing provisions, or
otherwise, Mewbourne Development Corporation 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 of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by Mewbourne Development Corporation of
expenses incurred or paid by a director, officer or person controlling Mewbourne
Development Corporation 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, Mewbourne Development
Corporation 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 of 1933 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this First Amendment to its Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
city of Tyler, State of Texas, on June 28, 1999.
MEWBOURNE ENERGY 99-00 DRILLING PROGRAMS, consisting
of Mewbourne Energy Partners 99-A, L.P., a Delaware
limited partnership and Mewbourne Energy Partners
00-A, L.P., a Delaware limited partnership
By: MEWBOURNE DEVELOPMENT CORPORATION,
Managing Partner
By: /s/ Curtis W. Mewbourne
-----------------------------
CURTIS W. MEWBOURNE,
President and Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* President and Director June 28, 1999
- ------------------------------------------------ (Principal Executive Officer)
CURTIS W. MEWBOURNE
* Treasurer June 28, 1999
- ------------------------------------------------ (Principal Financial and
J. ROE BUCKLEY Accounting Officer)
* Director June 28, 1999
- ------------------------------------------------
DOROTHY M. CUENOD
* Director June 28, 1999
- ------------------------------------------------
RUTH M. BUCKLEY
* Director June 28, 1999
- ------------------------------------------------
JULIE M. GREENE
*By: /s/ J. Roe Buckley
-------------------------------------------
J. Roe Buckley
Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT
NUMBER EXHIBIT
------ -------
1.1 -- Form of Soliciting Dealer Agreement to be entered
into between Mewbourne Development Corporation and
the Soliciting Dealers.*
1.2 -- Form of Dealer Manager Agreement.*
3.1 -- Certificate of Limited Partnership of Mewbourne
Energy Partners 99-A, L.P.*
3.2 -- Form of Amendment to Certificate of Limited
Partnership of Mewbourne Energy Partners 99-A, L.P.*
3.3 -- Certificate of Incorporation of Mewbourne
Development Corporation.*
3.4 -- Bylaws of Mewbourne Development Corporation.*
3.5 -- Certificate of Incorporation of Mewbourne Oil
Company.*
3.6 -- Bylaws of Mewbourne Oil Company.*
4.1 -- Form of Agreement of Partnership of Mewbourne
Energy Partners -A, L.P. (filed as Exhibit A to the
Prospectus forming a part of this Registration
Statement).**
4.2 -- Form of Subscription Agreement (filed as Exhibit D
to the Prospectus forming a part of this Registration
Statement).*
4.3 -- Form of Special Subscription Instructions (filed
as Exhibit C to the Prospectus forming a part of this
Registration Statement).*
4.4 -- Form of Certificate of Limited Partner Interest.*
4.5 -- Form of Certificate of General Partner Interest.*
5.1 -- Opinion of Vinson & Elkins L.L.P., as to the
legality of the securities registered hereby.**
8.1 -- Opinion of Vinson & Elkins L.L.P., as to certain
tax matters arising in connection with the securities
registered hereby.**
10.1 -- Form of Drilling Program Agreement among Mewbourne
Development Corporation, Mewbourne Oil Company and
Mewbourne Energy Partners -A, L.P. (filed as Exhibit
B to the Prospectus forming a part of this
Registration Statement).**
10.2 -- Form of Escrow Agreement between Mewbourne
Development Corporation and Bank of America Texas,
N.A.*
10.3 -- Form of Operating Agreement between Mewbourne
Energy Partners -A, L.P., Mewbourne Development
Corporation and Mewbourne Oil Company.**
23.1 -- Consent dated June 28, 1999 of
PricewaterhouseCoopers LLP, independent
accountants.**
23.2 -- Consent of Vinson & Elkins L.L.P. (included as
part of Exhibits 5.1).**
23.3 -- Consent dated June 28, 1999 of Forrest A. Garb &
Associates, Inc., independent engineers.**
23.4 -- Consent of Vinson & Elkins L.L.P. (included as
part of Exhibit 8.1).**
24.1 -- Power of Attorney (included on the signature page
to the Registration Statement).*
27.1 -- Financial Data Schedule*
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* Previously filed
** Filed herewith