As
filed with the Securities and Exchange Commission on July 2, 2007
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SPECTRA ENERGY PARTNERS, LP
(Exact name of registrant as specified in its charter)
|
|
|
|
Delaware
(State or other jurisdiction
of incorporation or organization)
|
|
41-2232463
(I.R.S. Employer
Identification Number)
|
5400 Westheimer Court
Houston, Texas 77056
(Address of principal executive offices, including zip code)
Spectra Energy Partners, LP
Long-Term Incentive Plan
(Full title of the plan)
C. Gregory Harper
Spectra Energy Partners, LP
5400 Westheimer Court
Houston, Texas 77056
(Name and address of agent for service)
(713) 627-5400
(Telephone number, including area code, of agent for service)
Copies to:
David P. Oelman
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002
(713) 758-2222
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed Maximum
|
|
|
|
Proposed Maximum
|
|
|
|
Amount of
|
|
|
|
|
Title of Securities
|
|
|
Amount to be
|
|
|
|
Offering Price
|
|
|
|
Aggregate Offering
|
|
|
|
Registration
|
|
|
|
|
to be Registered
|
|
|
Registered (1)
|
|
|
|
Per Share (2)
|
|
|
|
Price (2)
|
|
|
|
Fee
|
|
|
|
|
Common Units
Representing Limited
Partner Interests
|
|
|
900,000 Common Units
|
|
|
|
$27.825
|
|
|
|
$25,042,500
|
|
|
|
$768.81
|
|
|
|
|
(1)
|
|
Includes an indeterminate number of units that may become issuable pursuant to anti-dilution
provisions of the agreement of limited partnership of Spectra Energy Partners, LP.
|
|
(2)
|
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
and (h) under the Securities Act of 1933, as amended, based on the average of the high and low
prices reported on the New York Stock Exchange on June 27, 2007.
|
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities
Act”) and the instructional note to Part I of Form S-8, the information specified in Part I of Form
S-8 has been omitted from the filing of this registration statement. The documents containing the
information specified in Part I of Form S-8 will be sent or given to participating employees as
specified by Rule 428(b)(1) of the Securities Act. Such documents and the documents incorporated by
reference herein pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The following documents filed by the registrant with the Securities and Exchange Commission
(the “Commission”) are incorporated by reference in this registration statement:
|
|
•
|
|
The prospectus as filed by Spectra Energy Partners, LP with the Commission (File No.
333-141687) on June 27, 2007 pursuant to Rule 424 (b)(1) of the Securities Act;
|
|
|
|
|
•
|
|
Our Current Report on Form 8-K filed on July 2,
2007;
|
|
|
|
|
•
|
|
The description of our common units contained in our registration statement on Form
8-A filed on June 22, 2007, and any subsequent amendment or report filed for the
purpose of updating that description.
|
All documents we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
(excluding any information furnished pursuant to Item 2.02 or Item 7.01 on any current report on
Form 8-K) subsequent to the effective date of this registration statement, and prior to the filing
of a post-effective amendment to this registration statement indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold, will be deemed to be
incorporated by reference herein and to be a part of this registration statement from the date of
filing of those documents. Any statement contained in this registration statement or in any
document incorporated or deemed to be incorporated by reference in this registration statement
shall be deemed to be modified or superseded for purposes of this registration statement to the
extent that a statement contained in any other subsequently filed document that also is or is
deemed to be incorporated by reference in this registration statement modifies or supersedes that
statement. Any statement so modified or superseded shall not be deemed to constitute a part of
this registration statement, except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel
.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act empowers a Delaware
limited partnership to indemnify and hold harmless any partner or other persons from and against
all claims and demands whatsoever. Under our partnership agreement, in most circumstances, we will
indemnify the following persons, to the fullest extent permitted by law, from and against all
losses, claims, damages or similar events:
|
|
•
|
|
our general partner;
|
|
|
|
|
•
|
|
any departing general partner;
|
|
|
|
|
•
|
|
any person who is or was an affiliate of a general partner or any departing general partner;
|
|
|
|
|
•
|
|
any person who is or was a director, officer, member, partner, fiduciary or trustee
of any entity set forth in the preceding three bullet points;
|
|
|
|
|
•
|
|
any person who is or was serving as director, officer, member, partner, fiduciary or
trustee of another person at the request of our general partner or any departing
general partner; and
|
|
|
|
|
•
|
|
any person designated by our general partner.
|
Any indemnification under these provisions will only be out of our assets. Unless it otherwise
agrees, our general partner will not be personally liable for, or have any obligation to contribute
or lend funds or assets to us to enable us to effectuate indemnification. We may purchase insurance
against liabilities asserted against and expenses incurred by persons for our activities,
regardless of whether we would have the power to indemnify the person against liabilities under our
partnership agreement.
Item 7. Exemptions from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the
registrant with the Commission, each of the following exhibits is filed herewith:
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Description
|
|
|
|
|
|
4.1
|
|
Form of Spectra Energy Partners, LP First Amended and Restated Agreement of Limited Partnership (including specimen unit
certificate for Common Units) (incorporated by reference to
Exhibit 3.2 to Spectra Energy Partners, LP’s Registration
Statement on Form S-1 (File No.
333-141687)).
|
|
|
|
|
|
4.2
|
|
Spectra Energy Partners, LP
Long-Term Incentive Plan (incorporated by reference to
Exhibit 10.5 to Spectra Energy Partners, LP’s Registration
Statement on Form S-1 (File No.
333-141687)).
|
|
|
|
|
|
4.3*
|
|
Form of Phantom Unit Award Agreement under the
Spectra Energy Partners, LP Long-Term Incentive Plan.
|
|
|
|
|
|
5.1*
|
|
Opinion of Vinson & Elkins L.L.P.
|
|
|
|
|
|
23.1*
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
|
|
23.2*
|
|
Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
|
|
|
|
|
|
23.3*
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
|
|
23.4*
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
|
|
24.1*
|
|
Power of Attorney (set forth on the signature page contained
in Part II of this registration statement).
|
-2-
Item 9.
Undertakings
.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of a prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement; and
(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 paragraphs (1)(i) and (1)(ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section 13 or 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 of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
-3-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on the 2nd day of July, 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SPECTRA ENERGY PARTNERS, LP
|
|
|
|
|
|
|
|
|
|
BY:
|
|
SPECTRA ENERGY PARTNERS (DE) GP, LP,
|
|
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
BY:
|
|
SPECTRA ENERGY PARTNERS GP, LLC,
|
|
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ C. Gregory Harper
|
|
|
|
|
|
|
|
|
|
|
|
C. Gregory Harper
|
|
|
|
|
|
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints C. Gregory Harper, his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this registration statement, and to file
the same with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities
indicated on the 2nd day of
July 2007.
|
|
|
|
|
|
|
Title
|
|
Signature
|
|
(of Spectra Energy Partners GP, LLC)
|
|
|
|
|
/s/ C. Gregory Harper
C.
Gregory Harper
|
|
Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
|
/s/ Lon
C. Mitchell, Jr.
Lon
C. Mitchell, Jr.
|
|
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
|
|
|
|
|
/s/
Martha
B. Wyrsch
Martha
B. Wyrsch
|
|
Chairman of the Board
|
|
|
|
|
/s/
William
S. Garner, Jr.
William
S. Garner, Jr.
|
|
Director
|
|
|
|
|
/s/
Gregory
J. Rizzo
Gregory
J. Rizzo
|
|
Director
|
|
|
|
|
INDEX TO EXHIBITS
Unless otherwise indicated below as being incorporated by reference to another filing of the
registrant with the Commission, each of the following exhibits is filed herewith:
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Description
|
|
|
|
|
|
4.1
|
|
Form of Spectra Energy Partners, LP First Amended and Restated Agreement of Limited Partnership (including specimen unit
certificate for Common Units) (incorporated by reference to
Exhibit 3.2 to Spectra Energy Partners, LP’s Registration
Statement on Form S-1 (File No.
333-141687)).
|
|
|
|
|
|
4.2
|
|
Spectra Energy Partners, LP
Long-Term Incentive Plan (incorporated by reference to
Exhibit 10.5 to Spectra Energy Partners, LP’s Registration
Statement on Form S-1 (File No.
333-141687)).
|
|
|
|
|
|
4.3*
|
|
Form of Phantom Unit Award Agreement under the
Spectra Energy Partners, LP Long-Term Incentive Plan.
|
|
|
|
|
|
5.1*
|
|
Opinion of Vinson & Elkins L.L.P.
|
|
|
|
|
|
23.1*
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
|
|
23.2*
|
|
Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
|
|
|
|
|
|
23.3*
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
|
|
23.4*
|
|
Consent of Deloitte & Touche LLP.
|
|
|
|
|
|
24.1*
|
|
Power of Attorney (set forth on the signature page contained
in Part II of this registration statement).
|
Exhibit 4.3
SPECTRA ENERGY PARTNERS, LP
PHANTOM UNIT AWARD AGREEMENT
Grantee: __________________
[
Note
: This form of Agreement must be modified, as necessary, for each individual grant of
Phantom Units. Certain terms may be added or deleted as appropriate to customize the Agreement for
a particular Grantee.]
1.
Grant of Phantom Units with DERs
. As of the Grant Date (identified in
Section
11
below), Spectra Energy Partners, GP, LLC (the “
Company
”), hereby grants ___
(___) Phantom Units (“
Phantom Units
”) and tandem Distribution Equivalent Rights (“
DERs
”) to the
Grantee identified above, subject to the terms and conditions of this agreement (the “
Agreement
”)
and the Spectra Energy Partners, LP Long-Term Incentive Plan (the “
Plan
”). The Plan is hereby
incorporated in its entirety into this Agreement by reference. This Agreement is an Award
Agreement as described in the Plan.
2.
Definitions
. All capitalized terms used herein shall have the meanings set forth
in the Plan unless otherwise specifically defined herein.
3.
Phantom Unit Agreement Term
. This Agreement shall commence on the Grant Date
(identified in
Section 11
) and terminate without further action on the date that all the
Phantom Units under the Agreement are either fully paid, expire, or are forfeited, in accordance
with the terms and conditions of the Plan and the Agreement.
4.
Fair Market Value per Phantom Unit
. The Fair Market Value (“
FMV
”) of a Phantom
Unit is determined on the Vesting Date (as defined in
Section 11
). The FMV of each Phantom
Unit on its Vesting Date is equal to the FMV of one Common Unit of the Partnership (“
Unit
”). All
determinations of FMV shall be made in accordance with the terms of the Plan.
5.
Distribution Equivalent Rights
. Payments with respect to any DER subject to this
Agreement shall be credited by the Company to a bookkeeping account in the Grantee’s name as soon
as practicable each time that cash distributions are made by the Partnership with respect to Units
before the DER expires hereunder. Grantee shall be entitled to payment for the DERs credited to the
bookkeeping account in a cash lump sum payment at the same time that payment is made for the
related Phantom Unit in accordance with
Section 8
.
6.
Vesting
. Subject to
Section 7
, all the Phantom Units subject to this
Agreement shall vest in accordance with the Vesting Schedule set forth in
Section 11
.
7.
Termination of Employment
.
7.1 Termination of Employment due to Cause
. In the event of termination of the Grantee’s
Employment for Cause, all of the vested (to the extent not already paid) and non-vested
Phantom Units held by the Grantee as of the Employment termination
date shall immediately expire, terminate and become forfeited, and shall not be paid to
any extent. No further action is needed to effectuate the forfeiture of all the Grantee’s
Phantom Units due to a termination of Employment for Cause.
For purposes of this Agreement, “
Cause
” means the termination of the Grantee’s
Employment by the Company or an Affiliate by reason of (i) the conviction of the Grantee by
a court of competent jurisdiction as to which no further appeal can be taken of a crime
involving moral turpitude or a felony; (ii) the commission by the Grantee of a material act
of fraud upon the Company or an Affiliate, or any customer or supplier thereof; (iii) the
misappropriation of any funds or property of the Company or an Affiliate, or any customer or
supplier thereof; (iv) the willful and continued failure by the Grantee to perform the
material duties assigned to him that is not cured to the reasonable satisfaction of the
Company or an Affiliate within 30 days after written notice of such failure is provided to
Grantee by the Company or an Affiliate (or by their delegate); (v) the engagement by the
Grantee in any direct and material conflict of interest with the Company or an Affiliate
without compliance with the Company’s or Affiliate’s conflict of interest policy, if any,
then in effect; or (vi) the engagement by the Grantee, without the written approval of the
Company or an Affiliate, in any material activity which competes with the business of the
Company or Affiliate or which would result in a material injury to the business, reputation
or goodwill of the Company or Affiliate.
For purposes of this Agreement, “
Employment
” means that the Grantee is employed as an
Employee or engaged as a Director (as such terms are defined in the Plan). All
determinations regarding Employment, and termination of Employment, shall be made by the
Committee in its discretion. In this regard, neither the transfer of the Grantee from
Employment by the Company or Partnership to Employment by any Affiliate, nor the transfer of
the Grantee from Employment by an Affiliate to Employment by the Company or Partnership,
shall be considered to be a termination of Employment of the Grantee. Moreover, the
Employment of Grantee shall not be deemed to have been terminated because of an approved
leave of absence from active Employment on account of temporary illness, authorized
vacation, or granted for reasons of professional advancement, education, or health, or
during any period required to be treated as leave of absence by virtue of any applicable
law, personnel policy or written agreement. The term “Employment” also includes current
membership on the Board by a Director.
7.2 Involuntary Termination of Employment due to Death or Disability
. If Grantee’s
Employment is terminated due to death or Disability, then all outstanding, non-vested
Phantom Units shall immediately become 100% vested on the termination of Employment date,
which shall be the Vesting Date.
For purposes of this Agreement, “
Disability
” means that either the Grantee:
|
|
(i)
|
|
is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months; or
|
2
|
|
(ii)
|
|
is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than three months under an
accident and health plan covering employees of the Company or the Affiliate
that is the Grantee’s employer.
|
7.3 Termination of Employment due to Retirement
. If Grantee’s Employment terminates at a
time when Grantee is eligible for an immediately payable early or normal retirement benefit
under the Spectra Energy Retirement Cash Balance Plan or under another qualified retirement
plan of the Company or an Affiliate, which plan the Committee, or its delegatee, in its sole
discretion, determines to be the functional equivalent of the Spectra Energy Retirement Cash
Balance Plan, the number of Phantom Units and tandem DERs to which the Grantee shall have a
right to payment hereunder shall be prorated to reflect the number of whole and partial
months of the period beginning on the Date of Grant and ending with the third (3rd)
anniversary of the Grant Date during which such Employment continued while Grantee was
entitled to payment of salary, and the remaining Phantom Units shall be forfeited. Grantee
shall be considered to have “retired” but Grantee’s Employment shall be considered to
continue, with continued vesting under
Section 11.4
, (i) unless the Committee or its
delegatee, in its sole discretion, determines that (A) Grantee is in violation of any
obligation identified in the following paragraph or (B) the termination of Grantee’s
Employment is for Cause, in which case all Phantom Units not previously vested shall be
forfeited, or (ii) unless the Grantee dies, in which case the Phantom Units subject to the
provisions of this
Section 7.3
shall vest in accordance with
Section 11.4
.
In consideration of the continued vesting opportunity provided under this
Section
7.3
following the termination of Grantee’s continuous Employment, if Grantee is
considered “retired”, Grantee agrees that during the period beginning with such termination
of Employment and ending with the third anniversary of the Grant Date (the “
Restricted
Period
”), Grantee shall not (i) without the prior written consent of the Company or an
Affiliate, or its delegatee, become employed by, serve as a principal, partner, or member of
the board of directors of, or in any similar capacity with, or otherwise provide service to,
any competitor of the Company or an Affiliate, or (ii) violate any of Grantee’s other
noncompetition obligations, or any of Grantee’s nonsolicitation or nondisclosure
obligations, to the Company or any Affiliate. The noncompetition obligations of clause (i)
of the preceding sentence shall be limited in scope and effective only to competition with
the Company or any Affiliate in the businesses of: gathering, processing or transmission of
natural gas, resale or arranging for the purchase or for the resale, brokering, marketing,
or trading of natural gas, electricity or derivatives thereof; energy management and the
provision of energy solutions; gathering, compression, treating, processing, fractionation,
transportation, trading, marketing of natural gas components, including natural gas liquids;
sales and marketing of electric power and natural gas, domestically and abroad; and any
other business in which the Company and its Affiliates are engaged at the termination of
Grantee’s continuous Employment; and within the following geographical areas (i) any country
in the world where the Company and its Affiliates have at least US$25 million in capital
deployed as of termination of Grantee’s continuous Employment; (ii) the continent of
3
North America; (iii) the United States of America and Canada; (iv) the states of (A)
Virginia, (B) Georgia, (C) Florida, (D)Texas, (E) California, (F) Massachusetts, (G)
Illinois, (H) Michigan, (I) New York, (J) Colorado, (K) Oklahoma and (L) Louisiana; and (v)
any state or states or province or provinces with respect to which was conducted a business
of the Company and its Affiliates, which business constituted at least 20% of Grantee’s
Employment as determined by the Company. The Company and Grantee intend the above
restrictions on competition in geographical areas to be entirely severable and independent,
and any invalidity or enforceability of this provision with respect to any one or more of
such restrictions, including geographical areas, shall not render this provision
unenforceable as applied to any one or more of the other restrictions, including
geographical areas. If any part of this provision is held to be unenforceable because of
the duration, scope or area covered, the Company and Grantee agree to modify such part, or
that the court making such holding shall have the power to modify such part, to reduce its
duration, scope or area, including deletion of specific words and phrases,
i.e.
, “blue
penciling”, and in its modified, reduced or blue pencil form, such part shall become
enforceable and shall be enforced to the full extent applicable. Nothing in this
Section 7.3
shall be construed to prohibit Grantee being retained during the
Restricted Period in a capacity as an attorney licensed to practice law, or to restrict
Grantee providing advice and counsel in such capacity, in any jurisdiction where such
prohibition or restriction is contrary to law.
7.4. Involuntary Termination by Company other than for Cause.
If the Grantee’s
Employment is involuntarily terminated by the Company or an Affiliate for any reason other
than Cause, then (i) the number of Phantom Units and tandem DERs hereunder shall be prorated
to reflect the number of whole and partial months of Employment during the period beginning
on the Grant Date and ending with the third anniversary of the Grant Date, and the remaining
Phantom Units and DERs shall be forfeited, and (ii) the prorata number of Phantom Units and
DERs determined in accordance with clause (i) shall immediately become 100% vested as of the
Employment termination date, which shall be their Vesting Date.
7.5 Termination of Employment for Other Reasons
. If the Grantee’s Employment is terminated
for any reason, other than (i) involuntary termination with or without Cause or (ii) due to
Grantee’s death, Disability or retirement as described in
Sections 7.2 and 7.3
hereof, before all the Phantom Units are 100% vested, all of the then non-vested,
outstanding Phantom Units held by the Grantee as of the Employment termination date shall
automatically expire and become forfeited, and no additional vesting shall occur on or
subsequent to the Employment termination date.
7.6 Change in Control
. All outstanding Phantom Units and tandem DERs shall become 100%
vested, if, following the occurrence of a Change in Control and before the second
anniversary of such occurrence, the Grantee’s Employment is involuntarily terminated for any
reason, except for Cause, death, Disability or Retirement, by the Company or Affiliate, or
its successor in interest following the Change in Control.
For purposes of this Agreement, “
Change in Control
” means:
4
|
|
(i)
|
|
any “person” or “group” within the meaning of those terms as
used in Sections 13(d) and 14(d)(2) of the Exchange Act, other than an
Affiliate, shall become the beneficial owner, by way of merger, consolidation,
recapitalization, reorganization or otherwise, of 50% or more of the combined
voting power of the equity interests in the Company or the Partnership;
|
|
|
|
|
(ii)
|
|
the limited partners of the Partnership approve, in one or a
series of transactions, a plan of complete liquidation of the Partnership;
|
|
|
|
|
(iii)
|
|
the sale or other disposition by either the Company or the
Partnership of all or substantially all of its assets in one or more
transactions to any Person other than the Company or an Affiliate; or
|
|
|
|
|
(iv)
|
|
a transaction resulting in a Person other than the Company or
an Affiliate being the general partner of the Partnership.
|
Notwithstanding the foregoing, with respect to an Award that is subject to Code Section of
the Code and with respect to which a Change of Control will accelerate payment thereunder,
“Change of Control” shall mean a change in the ownership or effective control of the Company
or an Affiliate, or in the ownership of a substantial portion of the assets of the Company
or an Affiliate as defined in Code Section 409A and authoritative guidance issued
thereunder, but only to the extent inconsistent with the above definition, and only to the
minimum exact necessary to comply with Section 409A as determined by the Committee.
8.
Payment of Phantom Units upon Vesting Date
. Payment for a Phantom Unit shall be
made to the Grantee as soon as practicable following the time such Phantom Unit becomes vested in
accordance with
Section 6
prior to its expiration, but in no event later than 30 days
following the Vesting Date, except to the extent deferred by the Grantee in accordance with such
procedures as the Committee (or its delegate) may prescribe consistent with the requirements of
Code Section 409A. Payment shall be subject to withholding for all required taxes. Payment shall
be in the form of one (1) Unit for each full vested Phantom Unit, and any fractional vested Phantom
Unit shall not be payable unless and until subsequent vesting results in the full Phantom Unit
becoming vested; provided, however, the Committee may, in its sole discretion, direct that a cash
payment be made to Grantee in lieu of delivery of any such Unit or Units. Notwithstanding the
foregoing, to the extent that Grantee fails to timely tender to the Company or Affiliate sufficient
cash to satisfy withholding for tax requirements, the number of Units that would otherwise be paid
(valued at their FMV on the Vesting Date of the respective Phantom Unit, or if later, the date
payable) shall be reduced by the Committee (or its delegate), in its sole discretion, to fully
satisfy such requirements.
9.
Independent Legal and Tax Advice
. The Company, its Affiliates, and their officers,
employees, agents and representatives, do not provide any tax or legal advice to Grantee or any
other person. The Grantee is encouraged to consult with a personal tax advisor and legal counsel.
5
10.
General
.
10.1 Nontransferability of Phantom Unit
. The Phantom Units granted pursuant to this
Agreement cannot be transferred, assigned, pledged, or hypothecated in any respect, other
than by will or the laws of descent and distribution. If any attempt is made to transfer,
assign, pledge, hypothecate, or otherwise dispose of any rights under this Agreement
contrary to the provisions in this Agreement or the Plan, or upon the levy of any attachment
or similar process upon such rights, such rights shall immediately become null and void. No
right to any payment that may be provided hereunder to the Grantee shall be liable for, or
subject to, any debts, contracts, liabilities, damages, losses, or torts of the Grantee
unless and until actually paid to or on behalf of Grantee hereunder.
10.2 No Guarantee of Employment
. No award of Phantom Units shall confer upon Grantee any
right to continued Employment.
10.3 Notices
. All notices under this Agreement shall be mailed or delivered by hand to the
parties at their respective addresses set forth beneath their signatures below or at such
other address as may be designated in writing by either party to the other party, or to
their permitted transferees if applicable. Notices shall be effective upon receipt.
10.4 Amendment and Termination
. No amendment, modification or termination of this Agreement
shall be made at any time without the written consent of Grantee and the Company.
10.5 Severability
. In the event that any provision of this Agreement shall be held illegal,
invalid, or unenforceable for any reason, such provision shall be fully severable, but shall
not affect the remaining provisions of the Agreement, and the Agreement shall be construed
and enforced as if the illegal, invalid, or unenforceable provision had not been included
herein.
10.6 Governing Law
. The Agreement shall be construed in accordance with the laws of the
State of Delaware without regard to its conflict of law provisions, to the extent federal
law does not supersede and preempt Delaware law.
10.7. Conflicts
. In the event of any conflict between the terms and provisions of this
Agreement and the Plan, the Plan shall control. Capitalized terms used in this Agreement
but not defined herein shall have the meanings ascribed to such terms in the Plan unless the
context clearly requires otherwise.
10.8. Restrictions.
Grantee agrees that any Units acquired under this Agreement will
not be sold or otherwise disposed of in any manner which would constitute a violation of any
applicable federal or state securities laws. Grantee also agrees that (i) the certificates
representing the Units acquired under this Agreement may bear such legend or legends as the
Committee deems appropriate in order to assure compliance with applicable securities laws,
(ii) the Company may refuse to register the transfer of Units to be acquired under this
Agreement on the transfer records of the Partnership if such proposed transfer would, in the
opinion of counsel satisfactory to the Partnership, constitute a violation of any applicable
securities law, and (iii) the
6
Partnership may give related instructions to its transfer agent, if any, to stop the
registration of the transfer of Units to be acquired under this Agreement.
10.9. Rights as Unitholder.
Grantee or Grantee’s executor, administrator, heirs, or
legatees shall have the right to vote and receive distributions on Units and all the other
privileges of a unitholder of the Partnership only upon and from the date of issuance of a
Unit certificate in Grantee’s representing payment of a vested Phantom Unit.
10.10. Insider Trading Policy.
The terms of the Company’s Insider Trading Policy are
incorporated herein by reference. The timing of the delivery of any Units hereunder shall
be subject to such Policy in all respects.
10.11. Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of any successor or successors of the Company and upon any person lawfully claiming under
Grantee following death or Disability.
10.12. Entire Agreement.
This Agreement constitutes the entire agreement of the
parties with regard to the subject matter hereof, and contains all the covenants, promises,
representations, warranties and agreements between the parties with respect to the Phantom
Units granted hereby. Without limiting the scope of the preceding sentence, all prior
understandings and agreements, if any, among the parties hereto relating to the subject
matter hereof are hereby null and void and of no further force and effect.
11.
Definitions and Other Terms
. The following capitalized terms shall have those
meanings set forth opposite them:
11.1. Grantee:
.
11.2. Grant Date:
, 2007
.
11.3. Vesting Date
: The date upon which the Phantom Units become vested under the
Agreement pursuant to
Sections 6 and 11.4
.
11.4. Vesting Schedule
: Subject to the terms of the Plan, if the Grantee remains in
continuous Employment, the Phantom Units granted hereunder shall vest in accordance with the
following vesting schedule:
7
[Option 1:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
Vesting Date
|
|
|
|
|
|
Phantom Units Vesting
|
|
Grant Date
|
|
|
|
|
|
|
0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Third Anniversary of Grant Date
|
|
|
|
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
]
[Option 2:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage of
|
|
Vesting Date
|
|
|
|
|
|
Phantom Units Vesting
|
|
First Anniversary of Grant Date
|
|
|
|
|
|
|
33⅓
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Second Anniversary of Grant Date
|
|
|
|
|
|
|
33⅓
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Third Anniversary of Grant Date
|
|
|
|
|
|
|
33⅓
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
]
12.
Acceptance and Cancellation
.
Notwithstanding the foregoing, this Agreement is
subject to cancellation by the Company in its sole discretion unless the Grantee, by not later than
August 31, 2007, has signed a duplicate of this Agreement, in the space provided below, and
returned the signed duplicate to: Executive Compensation Department — Phantom Units (WO 1P16),
Spectra Energy Corp., P.O. Box 1642, Houston, TX 77521-1642, which, if and to the extent permitted
by the Executive Compensation Department, may be accomplished by electronic means.
[Signature page follows.]
8
IN WITNESS WHEREOF
, the Company has caused this Agreement to be executed on its behalf by a
duly authorized officer of the Company, and Grantee has hereunto executed this Agreement.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SPECTRA ENERGY PARTNERS GP, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address for Notices:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5400 Westheimer Court
|
|
|
|
|
|
Houston, Texas 77056
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acceptance of Phantom Unit Award
IN WITNESS WHEREOF
Grantee has hereby accepted this Award agreed to be bound by the terms and
provisions of this Agreement and the Plan, and Grantee has hereunto executed this Agreement.
GRANTEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signature:
|
|
|
|
Date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address for Notices:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9
