Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Departure and Appointment of Directors
Pursuant to the Plan and the Confirmation Order,
as of the Effective Date, the following directors ceased to serve on the Parent’s board of directors: Steve McDaniel, Judith D.
Buie, Damien Hannes, H. Weldon Holcombe, Eric P. McCrady, Neville W. Martin and Thomas L Mitchell.
Pursuant to the Plan and the Confirmation Order,
the Parent’s new board of directors shall consist of the four members listed below, who were appointed as of the Effective Date:
In connection with their appointment, Mr. Lazarus,
Mr. Hill, Mr. Vogel, and Mr. Putman each entered into an indemnification agreement with the Parent providing for indemnification
and advancement of litigation and other expenses to the fullest extent permitted by law for claims relating to their service to the Parent
and its subsidiaries. The foregoing description of the indemnification agreement is qualified in its entirety by the full text of the
document, which is attached as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated herein by reference.
As of the Effective Date of the Plan, other than
as set forth in the Plan and the Plan Supplement (as defined in the Plan), there are no arrangements or understandings between any of
the listed directors and any other persons pursuant to which such director was selected as a director and there are no transactions in
which any of the listed directors has an interest in which requires disclosure under Item 404(a) of Regulation S-K.
Stock Incentive Plan
Pursuant to the terms of the Plan, the Parent adopted
the Sundance Energy Inc. 2021 Stock Incentive Plan (the “Stock Incentive Plan”) providing for the issuance
from time to time, as approved by the Parent’s new board of directors, of equity and equity-based awards, in the aggregate and on
a fully-diluted basis, of up to 41,203 shares of New Common Stock, representing six percent (6%) of the New Common Stock issued or to
be issued as of the Effective Date. The Stock Incentive Plan also contains provisions with respect to payment of exercise or purchase
prices, vesting and expiration of awards, adjustments and treatment of awards upon certain corporate transactions, transferability of
awards and tax withholding requirements. The Stock Incentive Plan may be amended or terminated by the Board at any time, subject to certain
limitations requiring stockholder consent or the consent of the participant. The Stock Incentive Plan will expire on the tenth anniversary
of its effective date.
The foregoing description of the Stock Incentive
Plan does not purport to be complete and is qualified in its entirety by reference to the full text of the Stock Incentive Plan,
which is attached hereto as Exhibit 10.4 and is incorporated by reference herein.
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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On the Effective Date, pursuant to the terms of
the Plan and the Confirmation Order, the Parent filed the Amended and Restated Certificate of Incorporation of Sundance Energy Inc. (the
“Certificate of Incorporation”) with the office of the Secretary of State of Delaware. Also on the Effective Date, and pursuant
to the terms of the Plan and the Confirmation Order, the Parent adopted the Amended and Restated Bylaws of Sundance Energy Inc. (the “Bylaws”).
Pursuant to the Certificate of Incorporation, the
total number of shares of stock of all classes of authorized capital stock of the Parent consists of 1,500,000 shares of New Common Stock.
Each holder of shares of New Common Stock, as such,
shall be entitled to one vote for each share of New Common Stock held of record by such holder on all matters submitted for a vote of
the stockholders of the Parent, in addition to any other vote required by law. Except as otherwise required by law or provided in the
Stockholders Agreement, the board of directors of the Parent (the “Board”) may be filled by the affirmative votes of a majority
of the remaining members of the Board.
The holders of New Common Stock may receive such
dividends as the Board may declare in its discretion out of legally available funds. Holders of New Common Stock will share equally in
the Parent’s assets upon liquidation after payment or provision for all liabilities and any preferential liquidation rights then
outstanding. Shares of New Common Stock are not subject to any redemption provisions and are not convertible into any of the Parent’s
other securities.
Anti-Takeover Provisions
Some provisions of Delaware law, the Certificate
of Incorporation and the Bylaws summarized below could make certain change of control transactions more difficult, including acquisitions
of the Parent by means of a tender offer, proxy contest or otherwise, as well as removal of the incumbent directors. These provisions
may have the effect of preventing changes in management. It is possible that these provisions would make it more difficult to accomplish
or deter transactions that a stockholder might consider in his or her best interest, including those attempts that might result in a premium
over the market price for the New Common Stock.
Business Combinations under Delaware Law
The Parent expressly elects not to be governed
by, or subject to, Section 203 of the Delaware General Corporation Law (“DGCL”). In general, the statute prohibits a
publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder”
for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business
combination or the transaction by which the person became an interested stockholder is approved by the corporation’s board of directors
and/or stockholders in a prescribed manner or the person owns at least 85% of the corporation’s outstanding voting stock after giving
effect to the transaction in which the person became an interested stockholder. The term “business combination” includes mergers,
asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested
stockholder” is a person who, together with affiliates and associates, owns, or within three years did own, 15% or more of the corporation’s
voting stock. A Delaware corporation may “opt out” from the application of Section 203 through a provision in its certificate
of incorporation or by-laws. The Parent has “opted out” from the application of Section 203.
Number and Election of Directors
As of the Effective Date of the Plan, the Board
shall consist of not less than one nor more than fifteen members, the exact number of which shall be determined from time to time exclusively
by resolution adopted by directors representing at least a majority of the Board.
Calling of Special Meeting of Stockholders
The Bylaws provide that special meetings of stockholders
may be called only by (i) the Board or (ii) the secretary of the Parent, following receipt of one or more written demands to
call a special meeting of the stockholders from stockholders of record who own, in the aggregate, at least 20% of the voting power of
the outstanding shares of the Parent then entitled to vote on the matter or matters to be brought before the proposed special meeting
that complies with the procedures for calling a special meeting of the stockholders as may be set forth in the Bylaws.
Other Limitations on Stockholder Actions
The Bylaws provide that for so long as the Stockholders
Agreement remains in effect, with respect to all matters decided by the Board, each director shall have a number of votes equal to the
number of shares held by the stockholder and its Affiliates (as defined in the Bylaws) that own shares of New Common Stock that appointed
such director pursuant to the Stockholders Agreement. Thereafter, each director shall have one vote with respect to all matters decided
by the Board.
Newly Created Directorships and Vacancies on the Board
The Bylaws provide that vacancies on the Board
resulting from death, resignation, removal, disqualification or other causes, and newly created directorships resulting from any increase
in the number of directors on the Board, may be filled only by the affirmative vote of a majority of the remaining directors then in office,
even if less than a quorum, or by the sole remaining director.
Authorized but Unissued Shares
Under Delaware law, the Parent’s authorized
but unissued shares of New Common Stock are available for future issuance without stockholder approval. The Parent may use these additional
shares of New Common Stock for a variety of corporate purposes, including future public offerings to raise additional capital, acquisitions
and employee benefit plans. The existence of authorized but unissued shares of New Common Stock could render more difficult or discourage
an attempt to obtain control of the Parent by means of a proxy contest, tender offer, merger or otherwise.
The descriptions of the Certificate of Incorporation
and the Bylaws are qualified in their entirety by reference to the full texts of the Certificate of Incorporation and the Bylaws, which
are attached as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, respectively, and incorporated by reference herein.