SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Date of Report (Date of Earliest Event Reported): January 15, 2013
Cobalt International Energy, Inc.
(Exact name of registrant as specified in its charter)
Registrants telephone number, including area code: (713) 579-9100
(Former name or former address if changed since last report.)
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:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On January 15, 2013, Cobalt International Energy, Inc. (the Company), in connection with a registered underwritten secondary public offering of shares of its common stock (the Offering), entered into an underwriting agreement (the Underwriting Agreement) with Morgan Stanley & Co. LLC and Citigroup Global Markets Inc., as underwriters (the Underwriters) of the Offering, and the selling stockholders named in Schedule A thereto (the Selling Stockholders), pursuant to which the Selling Stockholders agreed to sell to the Underwriters 40,000,000 shares of the Companys common stock. In addition, pursuant to the Underwriting Agreement, the Underwriters have been granted an option, exerisable within 30 days, to purchase up to an additional 6,000,000 shares of common stock on the same terms and conditions to cover over-allotments, if any. The Company will not receive any proceeds from the sale of the shares of common stock in the Offering.
A copy of the Underwriting Agreement is contained in Exhibit 1.1 hereto, which exhibit is incorporated by reference into this Item 1.01. The above description is qualified in its entirety by reference to such exhibit.
A copy of the Underwriting Agreement has been included to provide security holders with information regarding its terms. It is not intended to provide any other factual information about the Company or the Selling Stockholders. The representations, warranties and covenants contained in the Underwriting Agreement were made solely for purposes of the Offering and as of specific dates, were solely for the benefit of the parties to the Underwriting Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Underwriting Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to security holders. Security holders are not third-party beneficiaries under the Underwriting Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Underwriting Agreement, which subsequent information may or may not be fully reflected in the Companys public disclosures.
In connection with the Offering, the following exhibits are filed with this Current Report on Form 8-K and are incorporated by reference into the Companys Registration Statement on Form S-3 (Registration No. 333-171536) relating to the Offering: (i) the Underwriting Agreement (Exhibit 1.1 to this Current Report on Form 8-K), and (ii) the legal opinion of Davis Polk & Wardwell LLP (including the consent of Davis Polk & Wardwell LLP) (Exhibit 5.1 to this Current Report on Form 8-K).
Item 8.01 Other Events.
Upon completion of the Offering referred to in Item 1.01 herein, funds affiliated with First Reserve Corporation, Goldman, Sachs & Co., Riverstone Holdings LLC and The Carlyle Group, and KERN Partners Ltd. and certain limited partners in such funds affiliated with KERN Partners Ltd., respectively (together, the financial sponsors), will no longer control a majority of the voting power of the Companys outstanding common stock.
At such time, the Company will accordingly no longer qualify as a controlled company for purposes of certain exemptions from The New York Stock Exchange (the NYSE) corporate governance standards. As a result, the Company will be required to have at least one independent director on each of its nominating and corporate governance and compensation committees upon completion of the Offering, a majority of independent directors on those committees within 90 days after the completion of the Offering, and fully independent nominating and corporate governance and compensation committees and a majority independent board within one year after the completion of the Offering. The Company will also be required to perform an annual performance evaluation of its nominating and corporate governance and compensation committees. Prior to the Offering, the Companys board of directors had determined that one of the three members of the nominating and corporate governance committee, one of the five members of the compensation committee, three of the three members of the audit committee and three of the twelve members of the board of directors were independent for purposes of the NYSE corporate governance standards. After the completion of the Offering and the Company no longer qualifying as a controlled company, the Company intends to appoint additional directors or deem certain of its existing directors independent who meet the NYSE independence requirements within the time periods required by the NYSE corporate governance standards.
Furthermore, following the financial sponsors ceasing to control a majority of the voting power of the Companys outstanding common stock, certain provisions set forth in the Companys certificate of incorporation and bylaws will take effect. Such provisions concern:
· Election of Directors. All directors will no longer be elected annually. Instead, the board will be classified into three equally-sized (or as near as possible) classes of directors, with directors in each class serving for a period ending on the date of the third annual meeting of stockholders next following the annual meeting at which such director was elected. Following the Offering, the board will initially apportion sitting directors among the three classes. The terms of the directors initially apportioned to Class I, Class II, and Class III will end on the first, second, and third annual meeting of stockholders, respectively, following the Offering.
· Removal of Directors. Directors will no longer be able to be removed without cause. Instead, directors will only be able to be removed for cause with the affirmative vote of stockholders holding not less than a majority of the shares then entitled to vote generally in the election of directors, voting together as a single class.
· Written Consent of Stockholders. Stockholders holding not less than the minimum number of votes that would be necessary to authorize or take any action required or permitted to be taken at any annual or special meeting of stockholders at which all shares entitled to vote thereon were present and voted will no longer be able to take such action by written consent. Instead, any such action will only be able to be taken upon a vote of stockholders at an annual or special meeting of stockholders duly noticed and called in accordance with the Companys bylaws and Delaware law.
· Special Meetings. Stockholders holding a majority of the outstanding shares of the Companys common stock will no longer have the power to call a special meeting of stockholders. Instead, only the board of directors or the chairman of the board will be able to call a special meeting of stockholders.
This Current Report on Form 8-K includes forward-looking statements within the meaning of the safe harbor provisions of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 that is, statements related to future, not past, events. Forward-looking statements are based on current expectations and include any statement that does not directly relate to a current or historical fact. In this context, forward-looking statements often address the Companys expected future business and financial performance, and often contain words such as anticipate, believe, intend, expect, plan, will or other similar words. These forward-looking statements involve certain risks and uncertainties that ultimately may not prove to be accurate. Actual results and future events could differ materially from those anticipated in such statements. For further discussion of risks and uncertainties, individuals should refer to the Companys SEC filings. The Company undertakes no obligation and does not intend to update these forward-looking statements to reflect events or circumstances occurring after this press release, other than as required by law. Investors are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Current Report on Form 8-K. All forward-looking statements are qualified in their entirety by this cautionary statement.
Item 9.01. Financial Statements and Exhibits.
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.
Date: January 18, 2013