EE 8-K
Excelerate Energy, Inc. (EE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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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:
Securities registered pursuant to Section 12(b) of the Act:
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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 1.01 Entry into a Material Definitive Agreement.
In connection with the initial public offering of Excelerate Energy, Inc. (the “Company”), the Company entered into a Stockholder’s Agreement, as further amended in August 2023 (the “Stockholder’s Agreement”), with Excelerate Energy Holdings, LLC (“EE Holdings”) and Excelerate Energy Limited Partnership (“EELP”). The Stockholder’s Agreement grants EE Holdings, subject to the board’s fiduciary duties and certain ownership thresholds, the right to designate the chairperson of the Company’s board of directors (the “Board”), a certain number of nominees for election to the Board and, subject to listing exchange requirements, certain committee members (together, the “Board and Committee Composition Rights”). In the event that EE Holdings ceases to have the right to designate one or more director(s), if requested by the chairperson of the Board or a majority of directors then in office, the director designee selected by EE Holdings shall resign (the “Resignation Provision”) or EE Holdings shall take all action necessary to remove such director designee. Additionally, EE Holdings has certain observer rights as long as EE Holdings (including its permitted transferees) has the right to designate director-designees under the Stockholder’s Agreement. The Stockholder’s Agreement also specifies that the Company will not take certain significant actions specified therein without the prior written consent of EE Holdings, subject to specified ownership thresholds (the “Consent Rights”).
Recently, in an opinion captioned West Palm Beach Firefighters’ Pension Fund v. Moelis & Company (“Moelis”), the Court of Chancery of the State of Delaware declared invalid certain rights that are similar to some of the Board and Committee Composition Rights and to the Consent Rights. In light of the Moelis decision, on April 4, 2024, the Company, EELP and EE Holdings have entered into a Waiver Agreement with respect to the Stockholder’s Agreement (the “Waiver Agreement”). The Waiver Agreement is effective immediately and (i) reaffirms that the Board and Committee Composition Rights are subject to the fiduciary duties of the directors so that the Board and the Company need only comply with such rights to the extent that doing so is consistent with the fiduciary duties that the Company’s directors have in their capacity as directors, and waives any Board and Committee Composition Rights to the extent necessary to reflect this reaffirmation (the “Confirmation Waivers”); (ii) waives the Resignation Provision if the director designee subject to the Resignation Provision determines in good faith that resigning is inconsistent with his or her fiduciary duties (the “Resignation Provision Waiver”); and (iii) waives the Consent Rights (the “Consent Rights Waiver” and, together with the Confirmation Waiver and Resignation Provision Waiver, the “Waivers”). Each of the Waivers shall terminate, and be of no further force and effect, upon the occurrence of either (a) a final judicial decision from which there is no further right of appeal (which decision need not be issued in litigation involving the Company) or (b) the enactment of a law in the State of Delaware, where, in either case, the parties to the Waiver Agreement mutually agree that the decision or the new law results in the obligations waived in the Waiver Agreement, as applicable, being enforceable absent the relevant Waiver. In addition, the Waiver Agreement provides that, if such a decision or new law requires approval of the Board or stockholders to have such a result, then the Company and the Board shall take all Necessary Action (as defined in the Stockholder’s Agreement, including to limit any required action of the Board to those consistent with the directors’ fiduciary duties) to obtain such approval.
A copy of the Waiver Agreement is attached to this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Waiver Agreement is qualified in its entirety by reference thereto.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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Description |
10.1 |
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Waiver Agreement, by and among the Company, EE Holdings and EELP, dated April 4, 2024 |
104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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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Excelerate Energy, Inc. |
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Date: |
April 5, 2024 |
By: |
/s/ Dana Armstrong |
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Dana Armstrong |
EXECUTION VERSION
WAIVER AGREEMENT WITH RESPECT TO STOCKHOLDER’S AGREEMENT
This Waiver Agreement with respect to Stockholder’s Agreement (this “Waiver Agreement”), dated April 4, 2024, is by and among Excelerate Energy, Inc., a Delaware corporation (the “Company”), Excelerate Energy Limited Partnership, a Delaware limited partnership (the “Partnership”), and Excelerate Energy Holdings, LLC, a Delaware limited liability company (together with its Permitted Transferees who are assignees pursuant to Section 4.9 of the Stockholder’s Agreement, the “Kaiser Investor”) (each a “Party” and collectively, the “Parties”).
RECITALS
WHEREAS, on April 18, 2022, the Parties entered into that certain Stockholder’s Agreement, which was subsequently amended by the Parties through Amendment No. 1 thereto, dated August 9, 2023 (as so amended, and as may be amended from time to time, the “Stockholder’s Agreement”);
WHEREAS, Section 2.1 of the Stockholders Agreement provides (subject to certain ownership thresholds) the Kaiser Investor with certain rights regarding Board Designees (all obligations of the Board or the Company pursuant to Section 2.1 other than those set out in Subsection (j) (regarding Observers), Subsection (k) (regarding confidentiality) and Subsection (l) (regarding exculpation, indemnification, advancement, and reimbursement), collectively, the “Board and Committee Composition Rights”);
WHEREAS, the Board and Committee Composition Rights are generally qualified by reference to fiduciary duties under Delaware law (including through the definition of Necessary Action);
WHEREAS, the Stockholders Agreement further provides that, if the Kaiser Investor shall cease to have the right to designate one or more director(s) pursuant to the Stockholders Agreement, the Director Designee(s) selected by the Kaiser Investor shall, at the request of a majority of the directors then in office or the Chairman of the Board (or the Chairman of the Nominating and Governance Committee in connection with the removal of the Chairman of the Board) resign immediately (“Company Resignation Right”), or the Kaiser Investor shall take all action necessary to remove such Director Designee(s) (“Kaiser Removal Obligation”);
WHEREAS, the Stockholders Agreement further provides (subject to certain ownership thresholds) that the Company will not, and will take all Necessary Action to cause its subsidiaries not to, take certain actions without the prior written consent of the Kaiser Investor (“Kaiser Consent Rights”);
WHEREAS, in an opinion captioned West Palm Beach Firefighters’ Pension Fund v. Moelis & Company (“Moelis”), the Court of Chancery of the State of Delaware declared invalid certain rights that are similar to some of the Board and Committee Composition Rights and to the Kaiser Consent Rights;
WHEREAS, the Stockholders Agreement provides that (i) if any provision of the Stockholders Agreement is found to be invalid or unenforceable in any jurisdiction, a suitable and equitable provision will be substituted therefor in order to carry out, so far as may be valid and
EXECUTION VERSION
enforceable, the intent and purpose of such invalid or unenforceable provision and (ii) each Party will take such further actions as may be reasonably requested from time to time by the other Parties to give effect to and carry out the transactions contemplated therein (the “Severability and Further Assurances Provisions”);
WHEREAS, the Stockholders Agreement provides that any provision thereof may be waived in a writing signed by each of the parties against whom the waiver is to be effective; and
WHEREAS, in light of Moelis and the Severability and Further Assurances Provisions, the Parties have determined to enter into this Waiver Agreement.
NOW THEREFORE, for and in consideration of the mutual consideration and covenants contained herein and other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound agree as follows:
EXECUTION VERSION
[Signature Page Follows]
EXECUTION VERSION
IN WITNESS WHEREOF, the Parties hereto have executed this Waiver Agreement as of the date first written above.
COMPANY
Excelerate Energy, Inc.
By: /s/ Alisa Newman Hood
Name: Alisa Newman Hood
Title: Executive Vice President and General Counsel
PARTNERSHIP
Excelerate Energy Limited Partnership
By: Excelerate Energy, Inc., its general partner
By: /s/ Alisa Newman Hood
Name: Alisa Newman Hood
Title: Executive Vice President and General Counsel
KAISER INVESTOR
Excelerate Energy Holdings, LLC
By: Kaiser-Francis Management Company LLC, Inc., its manager
By: /s/ Don P. Millican
Name: Don P. Millican
Title: President