Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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 7(a)(2)(B) of the Securities Act. ☐
|
Item 4.
|
Description of Securities.
|
Capital Stock
The total number of shares of all classes of stock which the Registrant shall have authority to issue is 345,000,000 shares, consisting of
300,000,000 shares of Common Stock and 45,000,000 shares of Preferred Stock, par value $0.0001 per share (the “Preferred Stock”).
As of June 13, 2017, the Registrant had 25,000,000 shares of Common Stock and no shares of Preferred Stock outstanding. Summarized below
are material provisions of the Registrant’s amended and restated certificate of
incorporation and amended and restated bylaws, as well as relevant sections of the Delaware General Corporation Law (the “DGCL”). The following summary is qualified in its entirety by
the provisions of the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws, copies of which have been filed as exhibits to this Registration Statement, and by the applicable provisions of the DGCL.
Common Stock
The holders
of the Registrant’s Common Stock are entitled to one vote per share on all matters submitted to a vote of stockholders, including the election of directors, except that holders of the Common Stock shall not be entitled to vote on any amendment
to the certificate of incorporation (including any certificate of designations relating to any class or series of Preferred Stock) that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of
such affected class or series are entitled, either separately or together with the holders of one or more other such classes or series, to vote thereon pursuant to the certificate of incorporation (including any certificate of designations relating
to any class or series of Preferred Stock) or pursuant to the DGCL. Holders of the Common Stock do not have any cumulative voting rights, which means that the holders of a majority of the outstanding Common Stock voting for the election of directors
can elect all directors then being elected. The holders of the Registrant’s Common Stock are entitled to receive dividends when, as, and if declared by the Registrant’s board of directors out of legally available funds. Upon the
Registrant’s liquidation or dissolution, the holders of Common Stock will be entitled to share ratably in those of the Registrant’s assets that are legally available for distribution to stockholders after payment of liabilities and subject
to the prior rights of any holders of Preferred Stock then outstanding. The rights, preferences and privileges of holders of Common Stock are subject to the rights of the holders of shares of any series of Preferred Stock that may be issued in the
future.
Preferred Stock
The Registrant is authorized to issue up to 45,000,000 shares of Preferred Stock. The Registrant’s board of directors is authorized,
subject to limitations prescribed by the DGCL and the Registrant’s amended and restated certificate of incorporation, to determine the terms and conditions of the Preferred Stock, including whether the shares of Preferred Stock will be issued
in one or more series, the number of shares to be included in each series and the powers, designations, preferences and relative, participating, optional or other rights of the shares. The Registrant’s board of directors is also authorized to
designate any qualifications, limitations or restrictions on the shares without any further vote or action by the stockholders. The issuance of Preferred Stock may have the effect of delaying, deferring or preventing a change in control of the
Registrant and may adversely affect the voting and other rights of the holders of its Common Stock, which could have an adverse impact on the market price of the Registrant’s Common Stock. The Registrant has no current plan to issue any shares
of Preferred Stock.
Certain Certificate of Incorporation, Bylaw and Statutory Provisions
The provisions of the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws and of the DGCL
summarized below may have an anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might consider in its best interest, including an attempt that might result in the receipt of a premium over the
market price for its shares.
Delaware Law
The Registrant is not subject to the provisions of Section 203 of the DGCL, regulating corporate takeovers. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the time that such stockholder becomes an interested stockholder, unless
the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. An
“interested stockholder” is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’s outstanding voting
stock. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
|
|
•
|
|
the transaction is approved by the board of directors before the date the interested stockholder attained that status;
|
2
|
|
•
|
|
upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances; or
|
|
|
•
|
|
on or after such time, the business combination is approved by the board of directors and authorized at a meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
|
A Delaware corporation may “opt out” of Section 203 with an express provision in its
original certificate of incorporation or an express provision in its certificate of incorporation or bylaws resulting from amendments approved by the holders of at least a majority of the corporation’s outstanding voting shares. The Registrant
elected to “opt out” of the provisions of Section 203.
Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws
Provisions of the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws may
delay or discourage transactions involving an actual or potential change in control or change in the Registrant’s management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that
stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of the Registrant’s Common Stock.
Among other things, the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws:
|
|
•
|
|
permit the board of directors to issue up to 45,000,000 shares of Preferred Stock, with any rights, preferences and privileges as they may designate;
|
|
|
•
|
|
provide that the authorized number of directors may be changed only by resolution of the majority of all of the board of directors (including authorized but vacant directorships);
|
|
|
•
|
|
provide that subject to the rights of the holders of any series of Preferred Stock of the Registrant then outstanding, all vacancies, including newly created directorships, may, except as otherwise required by law, be
filled by the affirmative vote of a majority of directors then in office, even if less than a quorum (prior to such time, vacancies may also be filled by the affirmative vote of the holders of a majority of the Registrant’s then outstanding
Common Stock);
|
|
|
•
|
|
provide that the Registrant’s amended and restated bylaws may only be amended by the affirmative vote of the holders of a majority of its then outstanding Common Stock or by resolution adopted by a majority of all
of the directors (including authorized but vacant directorships);
|
|
|
•
|
|
provide that certain provisions of the amended and restated bylaws relating to amendments to the bylaws, the election of directors, information rights and certain actions requiring board of directors approval, may not
be amended except with the affirmative vote or written consent of one or more stockholders then holding, in the aggregate, a majority of the voting power of all of the then outstanding shares of capital stock entitled to vote generally in the
election of directors, voting together as a single class;
|
|
|
•
|
|
provide for certain “tag-along” rights as described below;
|
|
|
•
|
|
eliminate the personal liability of the Registrant’s directors for monetary damages resulting from breaches of their fiduciary duty to the extent permitted by the DGCL and indemnify the directors and officers to
the fullest extent permitted by Section 145 of the DGCL;
|
|
|
•
|
|
provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders must provide notice in writing in a timely manner,
and also specify requirements as to the form and content of a stockholder’s notice; and
|
3
|
|
•
|
|
not provide for cumulative voting rights, therefore allowing the holders of a majority of the shares of Common Stock entitled to vote in any election of directors to elect all of the directors standing for election, if
they should so choose.
|
Directors’ Liability and Indemnification of Directors and Officers
Section 145 of the DGCL authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and
officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursements for expenses incurred arising under the Securities Act.
The Registrant’s amended and restated certificate of incorporation provides that a director will not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except:
|
|
•
|
|
for any breach of the duty of loyalty;
|
|
|
•
|
|
for acts or omissions not in good faith or which involve intentional misconduct or knowing violations of law;
|
|
|
•
|
|
for liability under Section 174 of the DGCL (relating to unlawful dividends, stock repurchases or stock redemptions); or
|
|
|
•
|
|
for any transaction from which the director derived any improper personal benefit.
|
The effect
of this provision is to eliminate the Registrant’s rights, and its stockholders’ rights, to recover monetary damages against a director for breach of a fiduciary duty of care as a director. This provision does not limit or eliminate the
Registrant’s rights or those of any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director’s duty of care. The provisions will not alter the liability of directors under federal
securities laws. In addition, the Registrant’s amended and restated certificate of incorporation provides that it indemnify each director and the officers, employees and agents determined by the board of directors to the fullest extent provided
by the laws of the State of Delaware. The Registrant’s amended and restated certificate of incorporation also requires the Registrant to advance expenses, including attorneys’ fees, to its directors and officers in connection with legal
proceedings, subject to very limited exceptions.
Any amendment to or repeal of these provisions will not adversely affect any right or
protection of the Registrant’s directors in respect of any act or failure to act that occurred prior to any amendment to or repeal of such provisions or the adoption of an inconsistent provision. If the DGCL is amended to provide further
limitation on the personal liability of directors of corporations, then the personal liability of the Registrant’s directors will be further limited to the greatest extent permitted by the DGCL. In addition, the Registrant has entered into
separate indemnification agreements with each of its directors and executive officers. The Registrant also maintains director and officer liability insurance.
Preemptive Rights
The
Registrant’s amended and restated certificate of incorporation provides that each stockholder that beneficially owns (including all shares beneficially owned by such stockholder’s affiliates) at least 5% of the total shares of Common Stock
outstanding as of the close of business on the record date determined by the board of directors (each such stockholder, a “Preemptive Rightsholder”), shall have the right to purchase up to its pro rata portion (based on the number of
shares of Common Stock beneficially owned by such stockholder as of the close of business on the record date, as a percentage of the total number of then-outstanding shares of Common Stock) of any New Equity Securities (as defined below) that the
Registrant or any of its subsidiaries proposes to sell or issue at any time and from time to time after the date hereof. The rights of Preemptive Rightsholders to purchase such New Equity Securities shall apply at the time of issuance of any right,
warrant, or option or convertible or exchangeable security that constitutes a New Equity Security, and not to the subsequent conversion, exchange or exercise of such New Equity Security in accordance with its terms.
“New Equity Security” means any and all (A) shares of Common Stock or other equity securities of the Registrant;
(B) equity securities of any subsidiary of the Registrant; (C) securities exchangeable into, or convertible or exercisable for, shares of securities of the type specified in clause (A) and (B); and (D) options, warrants or other
4
rights to acquire securities of the type specified in clause (A) and (B), in each case other than as issued (1) to employees, officers, directors or consultants pursuant to any equity-based
compensation or incentive plans approved by the board of directors or included in the Registrant’s Plan of Reorganization confirmed by the United States Bankruptcy Court for the Southern District of Texas, Houston Division, and securities
issued upon exercise or conversion of such options, warrants, convertible securities or other rights, (2) in connection with a stock split, payment of dividends or any similar recapitalization, reclassification, distribution, exchange or
readjustment of shares approved by the board of directors, (3) pursuant to the Plan of Reorganization (including shares of Common Stock and warrants to purchase shares of Common Stock, in each case, issued pursuant to the Plan), and securities
issued upon exchange, conversion or exercise of such securities, (4) as consideration in any business combination, consolidation, merger or acquisition transaction or joint venture involving the Registrant or any of its subsidiaries,
(5) upon the conversion or exercise of any securities convertible or exercisable for shares of securities of the type specified in (A) and (B), (6) as issuances (in one or more transactions) as a bona fide “equity kicker” in an
aggregate amount with respect to all such issuances of less than 5% of the then-outstanding shares of Common Stock to one or more third party lenders who are not stockholders to whom the Registrant or one or more of its subsidiaries is becoming
indebted in connection with the incurrence of any indebtedness approved by the board of directors or (7) in an initial public offering (an “IPO”).
Tag-Along Rights
The
Registrant’s amended and restated certificate of incorporation provides that if at any time prior to the earlier of a listing on a national securities exchange (which, for the avoidance of doubt, does not include an “over-the-counter”
system or network) or the consummation of an IPO, stockholders acting as a group (collectively, the “Tag-Along Sellers”) propose to transfer shares of Common Stock in a transaction or series of related transactions that constitutes a
change of control, then each other stockholder that beneficially owns (including all shares beneficially owned by such stockholder’s affiliates) at least 5% of the total shares of Common Stock outstanding shall have the right to exercise
certain tag-along rights.
Special Meetings of Stockholders
The Registrant’s amended and restated bylaws provide that special meetings of stockholders may be called at any time pursuant to a
resolution adopted by the board of directors, or upon the written request to the Secretary of the Registrant (the “Secretary”) by one or more stockholders holding, in the aggregate, at least a majority of the voting power of the shares
entitled to vote in the election of directors of the Registrant. Stockholders requesting a special meeting must provide a notice to the Registrant with the proposed date, time and place of the meeting, the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining
stockholders entitled to notice of the meeting, not less than 10 days nor more than 60 days before the date on which the meeting is to be held.
Stockholder Action and Advance Notice Requirements for Stockholder Proposals and Director Nominations
The Registrant’s amended and restated bylaws provide that stockholders may take action by written consent if the consent is signed by
holders of the Registrant’s outstanding shares having the number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
In addition, the Registrant’s amended and restated bylaws establish advance notice procedures for:
|
|
•
|
|
stockholders to nominate candidates for election as a director; and
|
|
|
•
|
|
stockholders to propose topics for consideration at stockholders’ meetings.
|
For
nominations of directors or proposals of business to be properly brought before an annual meeting by a stockholder the stockholder must have given timely notice thereof in writing (“Record Stockholder Notice”) to the Secretary and any such
business must be a proper matter for stockholder action under Delaware law. To be timely, a Record Stockholder Notice shall be received by the Secretary at the principal executive offices of the Registrant not less than 45 nor more than 75 days
prior to the one-year anniversary of the date on which the Registrant first mailed its proxy materials for the preceding year’s annual meeting of stockholders; provided, however, that, subject to
5
certain exceptions and limitations, (A) if the meeting is convened more than 30 days prior to or delayed by more than 30 days after the one-year anniversary of the preceding year’s
annual meeting, or if no annual meeting was held during the preceding year, notice by the Record Stockholder to be timely must be so received not later than the close of business on the later of (1) the 45th day before such annual meeting or
(2) the 10th day following the date on which public announcement of the date of such meeting is first made and (B) in the event that the number of directors to be elected to the board of directors is increased and a public announcement
naming all of the nominees for director or indicating the increase in the size of the board of directors is not made by the Registrant at least 10 days before the last day a stockholder may timely deliver a notice of nomination as set forth above, a
Record Stockholder Notice shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it is received by the Secretary at the principal executive offices of the Registrant not later than the
close of business on the 10th day following the date on which such public announcement is first made by the Registrant.
Directors
The Registrant’s board of directors currently has seven members. Each of the directors will serve for a term of one year. Directors hold
office until the annual meeting of stockholders and until their successors have been duly elected and qualified. The Registrant’s board of directors may elect a director to fill a vacancy, including vacancies created by the expansion of the
board of directors, upon the affirmative vote of a majority of the remaining directors then in office or by a sole remaining director.
The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws do not provide for cumulative voting
in the election of directors.
Forum for Adjudication of Disputes
The Registrant’s amended and restated certificate of incorporation provides that unless the Registrant consents in writing to the
selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery shall not have jurisdiction, another state court located within the state of Delaware, or if no state court located within the state of
Delaware has jurisdiction, the federal district court for the District of Delaware), will be the sole and exclusive forum for any derivative action or proceeding brought on behalf of the Registrant, any action asserting breach of a fiduciary duty
owed by any director, officer or other employee of the Registrant, any action asserting a claim arising pursuant to the DGCL, the amended and restated certificate of incorporation or the bylaws of the Registrant, or any action asserting a claim
governed by the internal affairs doctrine. Although the Registrant has included a choice of forum provision in its amended and restated certificate of incorporation, it is possible that a court could rule that such provision is inapplicable or
unenforceable. In addition, this provision would not affect the ability of the Registrant’s stockholders to seek remedies under the federal securities laws.
|
Item 5.
|
Interests of Named Experts and Counsel.
|
Not applicable.
|
Item 6.
|
Indemnification of Directors and Officers.
|
Section 145(a) of the DGCL provides, in
general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the corporation), because he or she is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in
6
settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding, if he or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred
by the person in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made with respect to any claim, issue, or matter as to which he or she shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines
that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other adjudicating court shall deem proper.
Section 145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending
any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized by Section 145 of the DGCL. Section 145(e) of the DGCL further provides that such
expenses (including attorneys’ fees) incurred by former directors and officers or other employees or agents of the corporation may be so paid upon such terms and conditions as the corporation deems appropriate.
Section 145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify the person against such liability under
Section 145 of the DGCL.
The Registrant’s amended and restated certificate of incorporation provides that the Registrant will
indemnify and hold harmless, to the fullest extent permitted by the DGCL, any person who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that he or she is or was one of the Registrant’s directors or officers or is or was serving at the Registrant’s request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise. The Registrant’s amended and restated certificate of incorporation further provides for the advancement of expenses to each of its officers and directors.
The Registrant’s amended and restated certificate of incorporation provides that, to the fullest extent permitted by the DGCL, the
Registrant’s directors shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. Under Section 102(b)(7) of the DGCL, the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary duty can be limited or eliminated except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (2) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL (relating to unlawful payment of dividend or unlawful stock purchase or redemption); or (4) for any
transaction from which the director derived an improper personal benefit.
The Registrant also maintains a general liability insurance
policy which covers certain liabilities of directors and officers of the Registrant arising out of claims based on acts or omissions in their capacities as directors or officers, whether or not the Registrant would have the power to indemnify such
person against such liability under the DGCL or the provisions of the Registrant’s amended and restated certificate of incorporation.
The Registrant has also entered into indemnity agreements with each of the Registrant’s directors and executive officers. These
agreements provide that the Registrant will indemnify each of its directors and such officers to the fullest extent permitted by law and by the Registrant’s amended and restated certificate of incorporation or amended and restated bylaws.
7
|
Item 7.
|
Exemption 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: