Current Report Filing (8-k)
July 19 2018 - 4:47PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): July 19, 2018
RSP Permian, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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001-36264
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90-1022997
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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One Concho Center
600 West Illinois Avenue
Midland, Texas
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79701
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants telephone number, including area code: (432)
683-7443
Check the
appropriate box below if the Form
8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule
14a-12
under the Exchange Act (17 CFR
240.14a-12)
☐
Pre-commencement
communications pursuant to Rule
14d-2(b)
under the Exchange Act (17 CFR
240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule
13e-4(c)
under the Exchange Act (17 CFR
240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or
Rule 12b-2 of
the Securities Exchange Act of
1934 (§240.12b-2 of
this chapter).
Emerging growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
Item 1.02 Termination of a Material Definitive Agreement.
Credit Facility
In connection with the
consummation of the Merger (as defined below), on July 19, 2018, RSP Permian, Inc., a Delaware corporation (the Company), and RSP Permian, L.L.C., a Delaware limited liability company (RSP LLC), terminated all
outstanding commitments, including commitments to issue letters of credit, under the Credit Agreement, dated as of December 19, 2016 (as amended from time to time, the Credit Agreement), by and among the Company, as guarantor, RSP
LLC, as borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent. In connection with the termination of the Credit Agreement, on July 19, 2018, all outstanding obligations for principal, interest and fees under
the Credit Agreement were paid off in full, and all liens securing such obligations and guarantees of such obligations and securing any letter of credit or hedging obligations permitted by the Credit Agreement to be secured by such liens were
released.
Senior Notes
On June 14,
2018, the Company issued a conditional redemption notice (the Notice) with respect to its 6.625% Senior Notes due 2022 (the 2022 Notes) issued by the Company under the Indenture, dated as of September 26, 2014 (as
amended, supplemented or otherwise modified, the 2022 Notes Indenture), by and between the Company and U.S. Bank National Association, as trustee, and with respect to its 5.25% Senior Notes due 2025 (the 2025 Notes and,
together with the 2022 Notes, the Notes) issued by the Company under the Indenture, dated as of December 27, 2016 (as amended, supplemented or otherwise modified, the 2025 Notes Indenture and, together with the 2022
Notes Indenture, the Indentures), by and between the Company and U.S. Bank National Association, as trustee. With the consummation of the Merger, such conditions were satisfied, and on July 19, 2018, the Company redeemed all of its
outstanding Notes in accordance with the optional redemption provisions contained in the Indentures. In connection therewith, the Indentures have been satisfied and discharged in accordance with their terms and the Company has been released from its
obligations with respect to the Indentures and the Notes, except with respect to those provisions of the Indentures that by their terms survive the satisfaction and discharge.
The descriptions of the Credit Agreement and the Notes contained in the Companys Annual Report on Form
10-K
for
the fiscal year ended December 31, 2017, as updated in its subsequent Quarterly Reports on Form
10-Q,
are incorporated in this Item 1.02 by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On July 19, 2018, Concho Resources Inc., a Delaware corporation (Concho), completed its previously announced acquisition of the Company,
pursuant to that certain Agreement and Plan of Merger (the Merger Agreement), dated as of March 27, 2018, by and among Concho, Green Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of Concho (Merger
Sub), and the Company. Pursuant to the Merger Agreement, Merger Sub merged with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Concho (the Merger).
As a result of the Merger, each share of common stock, par value $0.01 per share, of the Company issued and outstanding immediately prior to the effective
time of the Merger (the Effective Time) (excluding certain Excluded Shares (as defined in the Merger Agreement)) was converted into the right to receive from Concho 0.320 of a fully-paid and nonassessable share of common stock, par value
$0.001 per share, of Concho (Concho Shares).
The issuance of Concho Shares in connection with the Merger was registered under the Securities Act of 1933, as
amended (the Securities Act), pursuant to Conchos registration statement on Form
S-4
(File
No. 333-224354),
declared effective by the Securities
and Exchange Commission (the SEC) on June 6, 2018. The joint proxy statement/prospectus (the Joint Proxy Statement/Prospectus) included in the registration statement contains additional information about the Merger.
The foregoing description of the Merger and the Merger Agreement and the transactions contemplated thereby is not complete and is subject to and qualified in
its entirety by reference to the Merger Agreement, a copy of which was included as Annex A to the Joint Proxy Statement/Prospectus, and is incorporated by reference in this Current Report on Form
8-K.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the completion of the Merger, the Company notified the New York Stock Exchange (NYSE) that each outstanding share of the
Companys common stock was converted into the right to receive Concho Shares and requested that NYSE withdraw the listing of the Companys common stock. Upon the Companys request, NYSE filed a notification of removal from listing on
Form 25 with the SEC with respect to the delisting of the Companys common stock. The Companys common stock ceased being traded prior to the opening of the market on July 19, 2018, and will no longer be listed on NYSE. In addition,
the Company intends to file with the SEC a Form 15 requesting that the reporting obligations of the Company under Sections 13(a) and 15(d) of the Exchange Act be suspended.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Item 1.02, Item 2.01, Item 3.01 and Item 5.03 of this Current Report on Form
8-K
is
incorporated into this Item 3.03 by reference.
At the Effective Time, each share of the Companys common stock (other than shares held by the
Company, Concho, Merger Sub or any wholly-owned subsidiary of Concho or Merger Sub, in each case, not held on behalf of third parties) was converted into the right to receive Concho Shares.
In addition, in connection with the Merger and pursuant to the Merger Agreement:
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each outstanding award of the Companys time-based restricted stock vested in full and any applicable forfeiture restrictions lapsed immediately prior to the Effective Time. As a result, each such share of
time-based restricted stock was converted into the right to receive Concho Shares; and
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each outstanding award of the Companys performance-based restricted stock was deemed to have satisfied any continued service or time-based vesting requirements and have the applicable performance period end
immediately prior to the Effective Time. The Companys performance with respect to the performance goals applicable to such shares of the Companys performance-based restricted stock were calculated based on actual performance through the
Effective Time in order to determine the number of shares of the Companys performance based restricted stock that vested, and any applicable forfeiture restrictions lapsed immediately prior to the Effective Time. Based on the foregoing, each
earned share of the Companys performance-based restricted stock was converted into the right to receive Concho Shares.
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Item 5.01 Changes in Control of Registrant.
As a result of the consummation of the Merger, at the Effective Time, the Company became a wholly-owned subsidiary of Concho.
The information set forth in Item 2.01 of this Current Report on Form
8-K
is incorporated into this Item 5.01 by
reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
In accordance with the terms of the Merger Agreement, all of the directors of the Company prior to the Effective
Time ceased to be directors of the Company effective as of the Effective Time. Timothy A. Leach became the sole director of the Company as of the Effective Time. Timothy A. Leach was appointed as Chief Executive Officer, Jack F. Harper was appointed
as President and Chief Financial Officer, E. Joseph Wright was appointed Executive Vice President and Chief Operating Officer and Brenda R. Schroer was appointed as Senior Vice President, Chief Accounting Officer and Treasurer of the Company.
On July 18, 2018, the Company, Concho and Steven Gray entered into a Non-Competition, Non-Solicitation and Confidentiality Agreement (the
Non-Competition Agreement), which became effective upon the consummation of the Merger. Under the Non-Competition Agreement, Mr. Gray is bound by a perpetual confidentiality covenant and may not, at any time, disclose any confidential or
proprietary information belonging to either the Company or Concho. Further, the Non-Competition Agreement provides that, subject to certain exceptions enumerated therein, for a period of 12 months following the consummation of the Merger, Mr. Gray
will be prohibited from (i) obtaining any oil, gas or mineral interests in the Market Area (as defined in the Non-Competition Agreement) and (ii) within the Market Area, calling upon any prospective acquisition candidate for the purpose of acquiring
such entity to the extent such entity was either called upon by the Company or Concho or for which the Company or Concho made an acquisition analysis. In addition, under the Non-Competition Agreement, for a period of 12 months following the closing
of the Merger, Mr. Gray will be restricted from (i) hiring, contracting or soliciting any employee or contractor who was employed or retained by either the Company or Concho during the six months preceding the closing of the Merger, (ii) inducing
any employee or contractor of the Company or Concho to leave the employment of or terminate the contractors relationship with Concho, (iii) interfering with any relationship between Concho and any of its vendors and customers and (iv)
soliciting or using any Concho employee to provide services with respect to any non-Concho business. In consideration of Mr. Grays non-disclosure, non-competition and non-solicitation obligations, Concho will pay Mr. Gray $425,000 in a single
payment within 30 business days following the closing of the Merger.
A copy of the Non-Competition Agreement is filed as Exhibit 10.1 to this Current
Report on Form 8-K and is incorporated herein by reference.
Item 5.03 Amendments to Certificate of Incorporation or Bylaws; Change in Fiscal
Year.
At the Effective Time, (i) the Companys Amended and Restated Certificate of Incorporation was amended and restated in accordance with
the Merger Agreement and (ii) the bylaws of Merger Sub in effect immediately prior to the Effective Time became the bylaws of the Company.
A copy of
the Second Amended and Restated Certificate of Incorporation of RSP Permian, Inc. is filed as Exhibit 3.1 to this Current Report on Form
8-K
and is incorporated herein by reference, and a copy of the Second
Amended and Restated Bylaws of RSP Permian, Inc. is filed as Exhibit 3.2 to this Current Report on Form
8-K
and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit
Number
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Description
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3.1
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Second Amended and Restated Certificate of Incorporation of RSP Permian, Inc., dated July 19, 2018.
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3.2
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Second Amended and Restated Bylaws of RSP Permian, Inc., dated July 19, 2018.
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10.1
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Non-Competition, Non-Solicitation and Confidentiality Agreement, dated July 18, 2018 by and between RSP Permian, Inc., Concho Resources Inc. and Steven Gray.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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RSP PERMIAN, INC.
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By:
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/s/ Travis L. Counts
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Name: Travis L. Counts
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Title: Senior Vice President, General
Counsel and Corporate Secretary
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