EARTHSTONE ENERGY INC (Form: 8-K, Received: 07/15/2022 16:13:50)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report: July 15, 2022

(Date of earliest event reported)

EARTHSTONE ENERGY, INC.

(Exact name of registrant as specified in its charter)

Delaware

001-35049

84-0592823

(State or other jurisdiction of incorporation)

(Commission File Number)

(IRS Employer Identification No.)

1400 Woodloch Forest Drive, Suite 300

The Woodlands, Texas 77380

(Address of principal executive offices) (Zip Code)

(281) 298-4246

(Registrant’s telephone number, including area code)

(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:


			☐			Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)


			☐			Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)


			☐			Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))


			☐			Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Class A Common Stock, $0.001 par value per share	ESTE	New York Stock Exchange

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.

On July 15, 2022, Earthstone Energy, Inc. (the “Company”) entered into the Company’s standard indemnification agreement (the “Indemnification Agreement”) with Douglas E. Swanson, Jr., a member of the Board of Directors the Company, pursuant to which the Company agreed to indemnify Mr. Swanson in connection with claims brought against him in his capacity as a director of the Company. The Indemnification Agreement also provides, among other things, certain expense advancement rights in legal proceedings so long as Mr. Swanson undertakes to repay the advancement if it is later determined that he is not entitled to be indemnified.

The foregoing description of the Indemnification Agreement is qualified in its entirety by the terms of the Form of Indemnification Agreement included with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference.

Item 3.03 Material Modification to Rights of Security Holders.

The information set forth in Item 5.03 to this Current Report on Form 8-K is incorporated herein by reference into this Item 3.03.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On July 15, 2022, the Company filed a Certificate of Elimination (the “Certificate of Elimination”) with the Secretary of State of the State of Delaware eliminating all provisions of the Certificate of Designations (“Certificate of Designations”) filed by the Company with the Secretary of State of the State of Delaware on April 13, 2022 related to a series of preferred stock designated as Series A Convertible Preferred Stock (the “Series A Preferred Stock”). On July 6, 2022, all outstanding shares of Series A Preferred Stock were converted into shares of Class A common stock, par value $0.001 per share of the Company. Such shares previously designated Series A Preferred Stock have been returned to the authorized but undesignated shares of the Company’s preferred stock. Effective upon the filing of the Certificate of Elimination, all matters set forth in the Certificate of Designations were eliminated from the Company’s Third Amended and Restated Certificate of Incorporation, as amended.

The foregoing description of the Certificate of Elimination is qualified in its entirety by the terms of the Certificate of Elimination included with this Current Report on Form 8-K as Exhibit 3.1 and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

The following exhibits are included with this Current Report on Form 8-K:


Exhibit No.						Description

3.1						Certificate of Elimination of Series A Convertible Preferred Stock.
10.1						Form of Indemnification Agreement (incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K filed by the Registrant with the SEC on December 29, 2014).
104						Cover Page Interactive Data File (embedded within the Inline XBRL document).

SIGNATURE

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.


		EARTHSTONE ENERGY, INC.

Date:	July 15, 2022	By:	/s/ Tony Oviedo
			Tony Oviedo
			Executive Vice President - Accounting and Administration

Exhibit 3.1

CERTIFICATE OF ELIMINATION

SERIES A CONVERTIBLE PREFERRED STOCK

EARTHSTONE ENERGY, INC.

(Pursuant to Section 151 of the Delaware General Corporation Law)

Earthstone Energy, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), in accordance with the provisions of Section 151(g) of the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies as follows:

1. That, pursuant to Section 151 of the DGCL and authority granted in the Third Amended and Restated Certificate of Incorporation of the Company (as so amended and as further amended from time to time in accordance with its terms and the DGCL, the “Certificate of Incorporation”), the Board of Directors of the Company (the “Board”), by resolutions duly adopted, previously authorized the issuance of 280,000 shares of Series A Convertible Preferred Stock, par value $0.001 per share, of the Company (the “Series A Preferred Stock”), and established the powers, preferences and relative, participating, optional and other special rights, and qualifications, limitations and restrictions thereof, and, on April 13, 2022, filed a Certificate of Designations with respect to such Series A Preferred Stock in the office of the Secretary of State of the State of Delaware (the “Certificate of Designations”).

2. Pursuant to the provisions of Section 151(g) of the DGCL, the Board adopted, among other things, the following resolutions:

WHEREAS, 280,000 shares of Series A Preferred Stock were issued by the Company on April 14, 2022 and all such shares shall have been reacquired by the Company pursuant to the conversion thereof into shares of Class A common stock, par value $0.001 per share, of the Company (the “Class A Common Stock”), on July 6, 2022;

WHEREAS, pursuant to such conversion, no shares of such Series A Preferred Stock are outstanding and no shares of such Series A Preferred Stock shall be issued subject to the Certificate of Designations; and

WHEREAS, it is desirable that all matters set forth in the Certificate of Designations with respect to such Series A Preferred Stock be eliminated from the Certificate of Incorporation.

NOW, THEREFORE, BE IT,

RESOLVED, that none of the authorized shares of Series A Preferred Stock are outstanding, and none of the authorized shares of Series A Preferred Stock will be issued subject to the Certificate of Designations; and be it

FURTHER RESOLVED, that a certificate containing certain of these resolutions (the “Certificate of Elimination”) be, and hereby is, approved, ratified and confirmed in all respects as the act and deed of the Company, and the Company is hereby authorized and directed to file with the Secretary of State of the State of Delaware the Certificate of Elimination with the effect under the DGCL of eliminating from the Certificate of Incorporation all matters set forth in the Certificate of Designations; and be it

FURTHER RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized and directed, for and on behalf of the Company and in its name, to execute, deliver and file the Certificate of Elimination at such time as they deem appropriate and with such modifications as any Authorized Officer shall approve, such approval to be conclusively evidenced by the execution and delivery of the Certificate of Elimination to the Secretary of State of the State of Delaware and to take such further actions as they may deem necessary or appropriate to carry out the intent of the foregoing resolutions in accordance with the applicable provisions of the DGCL.

3. Pursuant to the provisions of Section 151(g) of the DGCL, all references to the Series A Preferred Stock in the Certificate of Incorporation are hereby eliminated, and the shares that were designated to such series are hereby returned to the status of authorized but unissued shares of preferred stock of the Company.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company has caused this Certificate of Elimination to be signed on its behalf by its duly authorized officer on this 15th day of July, 2022.

EARTHSTONE ENERGY, INC.

By: /s/ Robert J. Anderson

Name: Robert J. Anderson

Title: Authorized Officer