Diamondback Energy, Inc S-3ASR, filed Nov 21, 2022

Diamondback Energy, Inc. (FANG)

S-3ASR 2022-11-21

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	Delaware			45-4502447
	(State or Other Jurisdiction of Incorporation or Organization)			(I.R.S. Employer Identification Number)

Large accelerated filer	☒	Accelerated filer	☐
Non-accelerated filer	☐	Smaller reporting company	☐
		Emerging Growth Company	☐

	Exact name of co-registrant as specified in its charter(1)			State or other jurisdiction of incorporation or organization			I.R.S. Employer Identification Number
	Diamondback E&P LLC			Delaware			36-4728559

	About This Prospectus					ii
	Cautionary Note Regarding Forward-Looking Statements					iii
	Our Company					1
	Subsidiary Guarantors					1
	Risk Factors					2
	Use of Proceeds					3
	Description of Debt Securities					4
	Description of Capital Stock					18
	Plan of Distribution					22
	Where You Can Find More Information					24
	Information Incorporated by Reference					24
	Legal Matters					25
	Experts					25

	SEC registration fee					(1)
	Rating agency fees					(2)
	FINRA filing fee					(2)
	Legal fees and expenses					(2)
	Accounting fees and expenses					(2)
	Trustee fees and expenses					(2)
	Printing expenses					(2)
	Miscellaneous expenses					(2)
	Total					(2)

	Exhibit Number			Description
	1.1#			Form of Underwriting Agreement for debt securities.
	1.2#			Form of Underwriting Agreement for common stock.
	2.1+			Agreement and Plan of Merger, dated as of December 20, 2020, by and among Diamondback Energy, Inc., Bohemia Merger Sub, Inc. and QEP Resources, Inc. (incorporated by reference to Exhibit 2.1 to the Form 8-K, File No. 001-35700, filed by Diamondback Energy, Inc. with the SEC on December 21, 2020).
	2.2+			Agreement and Plan of Merger, dated as of May 15, 2022, by and among Diamondback Energy, Inc., Rattler Midstream GP LLC, Bacchus Merger Sub Company and Rattler Midstream LP (incorporated by reference to Exhibit 2.1 to the Form 8-K, File No. 001-35700, filed by Diamondback Energy, Inc. with the SEC on May 16, 2022).
	3.1			Amended and Restated Certificate of Incorporation of Diamondback Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Form 10-Q, File No. 001-35700, filed by Diamondback Energy, Inc. with the SEC on November 16, 2012).
	3.2			Certificate of Amendment No. 1 of the Amended and Restated Certificate of Incorporation of Diamondback Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Form 8-K, File No. 001-35700, filed by Diamondback Energy, Inc. with the SEC on December 12, 2016).
	3.3			Certificate of Amendment No. 2 of the Amended and Restated Certificate of Incorporation of Diamondback Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Form 8-K, File No. 001-35700, filed by Diamondback Energy, Inc. with the SEC on June 8, 2021).
	3.4			Third Amended and Restated Bylaws of Diamondback Energy, Inc. (incorporated by reference to Exhibit 3.1 to the Form 8-K, File No. 001-35700, filed by Diamondback Energy, Inc. with the SEC on October 3, 2022).
	4.1			Description of Diamondback Energy, Inc.’s Securities (incorporated by reference to Exhibit 4.6 to the Registration Statement on Form S-8, File No. 333-257561, filed by Diamondback Energy, Inc. with the SEC on June 30, 2021).
	4.2			Specimen certificate for shares of common stock, par value $0.01 per share, of Diamondback Energy, Inc. (incorporated by reference to Exhibit 4.1 to Amendment No. 4 to the Registration Statement on Form S-1, File No. 333-179502, filed by Diamondback Energy, Inc. with the SEC on August 20, 2012).
	4.3			Registration Rights Agreement, dated as of February 26, 2021, by and among Diamondback Energy, Inc., Guidon Operating LLC and Guidon Energy Holdings LP (incorporated by reference to Exhibit 4.3 to the Registration Statement on Form S-3, File No. 333-255731, filed by Diamondback Energy, Inc. with the SEC on May 3, 2021).
	4.4			Letter Agreement, dated as of April 27, 2021, by and among Diamondback Energy, Inc., Guidon Operating LLC and Guidon Energy Holdings LP relating to the Registration Rights Agreement referenced as Exhibit 4.2 hereto (incorporated by reference to Exhibit 4.4 to the Registration Statement on Form S-3, File No. 333-255731, filed by the Company with the SEC on May 3, 2021).
	4.5			Indenture, dated as of December 5, 2019, between Diamondback Energy, Inc. and Computershare Trust Company, National Association, as successor trustee to Wells Fargo Bank, National Association (incorporated by reference to Exhibit 4.1 to the Form 8-K, File No. 001-35700, filed by the Company with the SEC on December 5, 2019).

	Exhibit Number			Description
	4.6			First Supplemental Indenture, dated as of December 5, 2019, among Diamondback Energy, Inc., Diamondback E&P LLC, as successor by merger to Diamondback O&G LLC, and Computershare Trust Company, National Association, as successor trustee to Wells Fargo Bank, National Association (including the forms of 3.250% Senior Notes due 2026 and 3.500% Senior Notes due 2029) (incorporated by reference to Exhibit 4.2 to the Form 8-K, File No. 001-35700, filed by the Company with the SEC on December 5, 2019).
	4.7			Third Supplemental Indenture, dated as of March 24, 2021, among Diamondback Energy, Inc., Diamondback E&P LLC, as successor by merger to Diamondback O&G LLC, and Computershare Trust Company, National Association, as successor trustee to Wells Fargo Bank, National Association (including the forms of 3.125% Senior Notes due 2031 and 4.400% Senior Notes due 2051) (incorporated by reference to Exhibit 4.2 to the Form 8-K, File No. 001-35700, filed by the Company with the SEC on March 24, 2021).
	4.8			Fourth Supplemental Indenture, dated as of June 30, 2021, among Diamondback Energy, Inc., Diamondback E&P LLC and Computershare Trust Company, National Association, as successor trustee to Wells Fargo Bank, National Association (incorporated by reference to Exhibit 10.3 to the Form 10-Q, File No. 001-35700, filed by the Company with the SEC on August 5, 2021).
	4.9			Fifth Supplemental Indenture, dated as of March 17, 2022, among Diamondback Energy, Inc., Diamondback E&P LLC and Computershare Trust Company, National Association, as trustee (including the form of 4.250% Senior Notes due 2052) (incorporated by reference to Exhibit 4.2 to the Form 8-K, File No. 001-35700, filed by the Company with the SEC on March 17, 2022).
	4.10			Sixth Supplemental Indenture, dated as of October 28, 2022, among Diamondback Energy, Inc., Diamondback E&P LLC and Computershare Trust Company, National Association (including the form of 6.250% Senior Notes due 2033) (incorporated by reference to Exhibit 4.2 to the Form 8-K, File No. 001-35700, filed by the Company with the SEC on October 28, 2022).
	4.11			Indenture, dated as of October 16, 2019, among Viper Energy Partners LP, as issuer, Viper Energy Partners LLC, as guarantor, and Wells Fargo Bank, National Association, as trustee (including the form of Viper Energy Partners LP’s 5.375% Senior Notes due 2027) (incorporated by reference to Exhibit 4.1 to the Form 8-K, File 001-36505, filed by Viper Energy Partners LP on October 17, 2019).
	4.12			Form of Indenture, dated September 1, 1996, between Energen Corporation and The Bank of New York as trustee (incorporated by reference to Exhibit 4(i) to the Registration Statement on Form S-3, Registration No. 333-11239, filed by Energen Corporation with the SEC on August 30, 1996).
	4.13			Amended and Restated Officers’ Certificate, dated as of February 27, 1998, between Energen Corporation and The Bank of New York as trustee, relating to the Medium-Term Notes, Series B, due 2028 (incorporated by reference to Exhibit 4(d)(iii) to the Form 10-K, File No. 001-7810, filed by Energen Corporation with the SEC on February 28, 2018).
	4.14			Indenture, dated as of March 1, 2012, between QEP Resources, Inc. and Wells Fargo Bank, National Association as trustee (incorporated by reference to Exhibit 4.1 to the Form 8-K, File No. 001-34778, filed by QEP Resources, Inc. with the SEC on March 1, 2012).
	4.15			Officer’s Certificate, dated as of September 12, 2012, relating to the 5.250% Senior Notes due 2023 of QEP Resources, Inc. (incorporated by reference to Exhibit 4.1 to the Form 8-K, File No. 001-34778, filed by QEP Resources, Inc. with the SEC on September 14, 2012).
	4.16			Officer’s Certificate, dated as of November 21, 2017 (including the form of the 5.625% Senior Notes due 2026) (incorporated by reference to Exhibit 4.2 to the Form 8-K, File No. 001-34778, filed by QEP Resources, Inc. with the SEC on November 21, 2017).

	Exhibit Number			Description
	4.17			First Supplemental Indenture, dated as of March 23, 2021, among QEP Resources, Inc. and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.3 to the Form 8-K, File No. 001-35700, filed by the Company with the SEC on March 24, 2021).
	4.18*			Form of Indenture between Diamondback Energy, Inc., any guarantors party thereto and Computershare Trust Company, National Association, as trustee (including form of Debt Security).
	5.1*			Opinion of Akin Gump Strauss Hauer & Feld LLP regarding the legality of securities being registered.
	22.1			List of Issuers and Guarantor Subsidiaries (incorporated by reference to Exhibit 22.1 to the Form 10-Q, File No. 001-35700, filed by Diamondback Energy, Inc. with the SEC on August 5, 2021).
	23.1*			Consent of Akin Gump Strauss Hauer & Feld LLP (included on Exhibit 5.1).
	23.2*			Consent of Grant Thornton LLP with respect to Diamondback Energy, Inc.’s audited financial statements.
	23.3*			Consent of Ryder Scott Company, L.P. with respect to the Diamondback Energy, Inc. reserve report.
	23.4*			Consent of Ryder Scott Company, L.P. with respect to the Viper Energy Partners LP reserve report.
	24.1*			Powers of Attorney (included on signature pages hereto).
	25.1*			Form T-1 Statement of Eligibility of Trustee.
	107*			Calculation of Filing Fee Table.

	NAME			TITLE
	/s/ Travis D. Stice Travis D. Stice			Chief Executive Officer (principal executive officer), Chairman of the Board (Director)
	/s/ Kaes Van’t Hof Kaes Van’t Hof			President and Chief Financial Officer (principal financial officer)
	/s/ Teresa L. Dick Teresa L. Dick			Executive Vice President, Chief Accounting Officer and Assistant Secretary (principal accounting officer)
	/s/ Steven E. West Steven E. West			Director
	/s/ Vincent K. Brooks Vincent K. Brooks			Director
	/s/ Michael P. Cross Michael P. Cross			Director
	/s/ David L. Houston David L. Houston			Director

	NAME			TITLE
	/s/ Rebecca A. Klein Rebecca A. Klein			Director
	/s/ Stephanie K. Mains Stephanie K. Mains			Director
	/s/ Mark L. Plaumann Mark L. Plaumann			Director
	/s/ Melanie M. Trent Melanie M. Trent			Director
	/s/ Frank D. Tsuru Frank D. Tsuru			Director

	NAME			TITLE
	DIAMONDBACK ENERGY, INC.			Sole Member of Diamondback E&P LLC
	/s/ KAES VAN’T HOF Kaes Van’t Hof, President and Chief Financial Officer

Trust Indenture Act Section	Indenture Section
Section 310(a)(1)	609
(a)(2)	609
(a)(3)	Not Applicable
(a)(4)	Not Applicable
(b)	608
Section 311(a)	613
(b)	613
Section 312(a)	701
	702
(b)	702
(c)	702
Section 313(a)	703
(b)	703
(c)	106, 703
(d)	703
Section 314(a)	704
(a)(4)	101
(b)	Not Applicable
(c)(1)	102
(c)(2)	102
(c)(3)	Not Applicable
(d)	Not Applicable
(e)	102
Section 3.15(a)	601
(b)	602
(c)	601
(d)	601
(e)	514
Section 316(a)	101
(a)(1)(A)	502
	512
(a)(1)(B)	513
(a)(2)	Not Applicable
(b)	508
(c)	104
Section 317(a)(1)	503
(a)(2)	504
(b)	1003
Section 318(a)	107

ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	1
Section 101 Definitions	1
Section 102 Compliance Certificates and Opinions	8
Section 103 Form of Documents Delivered to Trustee	9
Section 104 Acts of Holders; Record Dates	10
Section 105 Notices, Etc., to Trustee, Company and Guarantors	12
Section 106 Notice to Holders; Waiver	12
Section 107 Trust Indenture Act Matters	13
Section 108 Effect of Headings and Table of Contents	13
Section 109 Successors and Assigns	14
Section 110 Separability Clause	14
Section 111 Benefits of Indenture	14
Section 112 Governing Law	14
Section 113 Legal Holidays	14
Section 114 No Adverse Interpretation of Other Agreements	14
Section 115 No Personal Liability of Directors, Officers, Employees and Stockholders	14
Section 116 Language of Notices, Etc.	15
Section 117 Force Majeure	15
Section 118 Waiver of Jury Trial	15
Section 119 Counterparts and E-signatures	15
Section 120 U.S.A. PATRIOT Act	16
ARTICLE II SECURITY FORMS	16
Section 201 Forms Generally	16
Section 202 Form of Face of Security	17
Section 203 Form of Reverse of Security	19
Section 204 Form of Legend for Global Securities	23
Section 205 Form of Trustee’s Certificate of Authentication	23
ARTICLE III THE SECURITIES	24
Section 301 Amount Unlimited; Issuable in Series	24
Section 302 Denominations	28
Section 303 Execution, Authentication, Delivery and Dating	28
Section 304 Temporary Securities	30
Section 305 Registration, Registration of Transfer and Exchange	31
Section 306 Mutilated, Destroyed, Lost and Wrongfully Taken Securities	33
Section 307 Payment of Interest; Interest Rights Preserved	34
Section 308 Persons Deemed Owners	35
Section 309 Cancellation	35
Section 310 Computation of Interest	36
Section 311 CUSIP Numbers	36
ARTICLE IV SATISFACTION AND DISCHARGE	36
Section 401 Satisfaction and Discharge of Indenture	36
Section 402 Application of Trust Money	37

ARTICLE V REMEDIES	38
Section 501 Events of Default	38
Section 502 Acceleration of Maturity; Rescission and Annulment	39
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee	41
Section 504 Trustee May File Proofs of Claim	41
Section 505 Trustee May Enforce Claims Without Possession of Securities	42
Section 506 Application of Money Collected	42
Section 507 Limitation on Suits	42
Section 508 Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert	43
Section 509 Restoration of Rights and Remedies	43
Section 510 Rights and Remedies Cumulative	43
Section 511 Delay or Omission Not Waiver	43
Section 512 Control by Holders	44
Section 513 Waiver of Past Defaults	44
Section 514 Undertaking for Costs	44
Section 515 Waiver of Usury, Stay or Extension Laws	45
ARTICLE VI THE TRUSTEE	45
Section 601 Certain Duties and Responsibilities	45
Section 602 Notice of Defaults	46
Section 603 Certain Rights of Trustee	47
Section 604 Not Responsible for Recitals or Issuance of Securities	48
Section 605 May Hold Securities	48
Section 606 Money Held in Trust	49
Section 607 Compensation and Reimbursement	49
Section 608 Conflicting Interests	50
Section 609 Corporate Trustee Required; Eligibility	50
Section 610 Resignation and Removal; Appointment of Successor	50
Section 611 Acceptance of Appointment by Successor	52
Section 612 Merger, Conversion, Consolidation or Succession to Business	53
Section 613 Preferential Collection of Claims Against Company	53
Section 614 Appointment of Authenticating Agent	53
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY	55
Section 701 Company to Furnish Trustee Names and Addresses of Holders	55
Section 702 Preservation of Information; Communications to Holders	55
Section 703 Reports by Trustee	56
Section 704 Reports by Company and Guarantors	56
ARTICLE VIII CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER OR LEASE	57
Section 801 Company May Consolidate, Etc., Only on Certain Terms	57
Section 802 Successor Substituted	57

ARTICLE IX SUPPLEMENTAL INDENTURES	58
Section 901 Supplemental Indentures Without Consent of Holders	58
Section 902 Supplemental Indentures With Consent of Holders	59
Section 903 Execution of Supplemental Indentures	61
Section 904 Effect of Supplemental Indentures	61
Section 905 Conformity with Trust Indenture Act	61
Section 906 Reference in Securities to Supplemental Indentures	61
Section 907 Waivers	61
ARTICLE X COVENANTS	62
Section 1001 Payment of Principal, Premium and Interest	62
Section 1002 Maintenance of Office or Agency	62
Section 1003 Money for Securities Payments to Be Held in Trust	62
Section 1004 Corporate Existence	63
Section 1005 Statement by Officer as to Default	64
Section 1006 Waiver of Certain Covenants	64
ARTICLE XI REDEMPTION OF SECURITIES	65
Section 1101 Applicability of Article	65
Section 1102 Election to Redeem; Notice to Trustee	65
Section 1103 Selection by Trustee of Securities to Be Redeemed	65
Section 1104 Notice of Redemption	66
Section 1105 Deposit of Redemption Price	67
Section 1106 Securities Payable on Redemption Date	68
Section 1107 Securities Redeemed in Part	68
Section 1108 No Limit on Repurchases	68
ARTICLE XII SINKING FUNDS	69
Section 1201 Applicability of Article	69
Section 1202 Satisfaction of Sinking Fund Payments with Securities	69
Section 1203 Redemption of Securities for Sinking Fund	69
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE	70
Section 1301 Company’s Option to Effect Defeasance or Covenant Defeasance	70
Section 1302 Defeasance and Discharge	70
Section 1303 Covenant Defeasance	71
Section 1304 Conditions to Defeasance or Covenant Defeasance	71
Section 1305 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions	73
Section 1306 Reinstatement	74
ARTICLE XIV GUARANTEES	74
Section 1401 Guarantees	74

	DIAMONDBACK ENERGY, INC., a Delaware corporation

	By:
	Name:
	Title:

Year	Redemption Price	Year	Redemption Price

Year	Redemption Price for Redemption Through Operation of the Sinking Fund	Redemption Price for Redemption Otherwise Than Through Operation of the Sinking Fund

Dated:	[_______________], as Trustee

	By:
	Authorized Signatory

	[_______________],
	as Trustee

	By	[NAME OF AUTHENTICATING AGENT],
		as Authenticating Agent

	By:
	Authorized Signatory

	/s/ RYDER SCOTT COMPANY, L.P.

	RYDER SCOTT COMPANY, L.P.
	TBPELS Firm Registration No. F-1580

SUITE 2800, 350 7TH AVENUE, S.W.	CALGARY, ALBERTA T2P 3N9	TEL (403) 262-2799
633 17TH STREET, SUITE 1700	DENVER, COLORADO 80202	TEL (303) 339-8110

National Banking Association (Jurisdiction of incorporation of organization if not a U.S. national bank)	04-3401714 (I.R.S. Employer Identification Number)
150 Royall Street, Canton, MA (Address of principal executive offices)	02021 (Zip Code)

Delaware		45-4502447
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)

Exact name of co-registrant as specified in its charter(1)	State or other jurisdiction of incorporation or organization	I.R.S. Employer Identification Number
Diamondback E&P LLC	Delaware	36-4728559

	COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION

	By:	/s/ Niki Austin
		Name: Niki Austin
		Title: Assistant Vice President

	Dollar Amounts In Thousands
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin		-0-
Interest-bearing balances		-0-
Securities:
Held-to-maturity securities		-0-
Available-for-sale securities		288,298
Federal funds sold and securities purchased under agreements to resell:
Federal funds sold in domestic offices		-0-
Securities purchased under agreements to resell		-0-
Loans and lease financing receivables:
Loans and leases held for sale		-0-
Loans and leases, net of unearned income		-0-
LESS: Allowance for loan and lease losses		-0-
Loans and leases, net of unearned income and allowance		-0-
Trading assets		-0-
Premises and fixed assets (including capitalized leases)		23,841
Other real estate owned		-0-
Investments in unconsolidated subsidiaries and associated companies		-0-
Direct and indirect investments in real estate ventures		-0-
Intangible assets:
Goodwill		134,625
Other intangible assets		562,813
Other assets		102,054
Total assets		1,111,631

LIABILITIES
Deposits:
In domestic offices			-0-
Noninterest-bearing			-0-
Interest-bearing			-0-
Federal funds purchased and securities sold under agreements to repurchase:
Federal funds purchased in domestic offices			-0-
Securities sold under agreements to repurchase			-0-
Trading liabilities			-0-
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases)			-0-
Not applicable
Not applicable
Subordinated notes and debentures			-0-
Other liabilities			180,273
Total liabilities			180,273

EQUITY CAPITAL
Perpetual preferred stock and related surplus			0
Common stock			500
Surplus (exclude all surplus related to preferred stock)			827,224
Retained earnings			103,633
Accumulated other comprehensive income			-0-
Other equity capital components			-0-
Total bank equity capital			931,358
Noncontrolling (minority) interests in consolidated subsidiaries			-0-
Total equity capital			931,358
Total liabilities and equity capital			1,111,631