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 (Date of earliest event reported): May 31, 2023
Kinetik Holdings Inc.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-38048 | 81-4675947 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
| 2700 Post Oak Blvd., Suite 300 Houston, Texas 77056 |
| (Address of Principal Executive Offices and Zip Code) |
(713) 621-7330
(Registrant’s Telephone Number, Including Area Code)
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 communication 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 communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communication 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, par value $0.0001 per share | KNTK | 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 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Years. |
As further described in Item 5.07 of this Current Report on Form 8-K (this “Report”), at the Annual Meeting of Stockholders of Kinetik Holdings Inc. (the “Company”) held on May 31, 2023 (the “Annual Meeting”), the Company’s stockholders approved the following amendments (the “Amendments”) to the Company’s Third Amended and Restated Certificate of Incorporation (the “Certificate”):
| • | an amendment to Section 10.1 to the Certificate to add a sunset provision for the supermajority vote requirement for changes to Section 9.1 of the Certificate; and |
| • | an amendment to Section 8.1 of the Certificate to reflect new Delaware law provisions regarding officer exculpation. |
The Amendments became effective upon the filing of the Certificate of Amendment to the Company’s Third Amended and Restated Certificate of Incorporation (the “Certificate of Amendment”) with the Secretary of State of Delaware on May 31, 2023. A description of the Amendments is provided in “Proposal 4. Amendment to Certificate of Incorporation—Removal of Supermajority Requirement” and “Proposal 5. Amendment to Certificate of Incorporation—Officer Exculpation” of the Company’s definitive proxy statement filed with the Securities and Exchange Commission on April 21, 2023 (the “Proxy Statement”), which description and text are incorporated herein by reference. The foregoing description of the Amendments and the description incorporated by reference from the Proxy Statement do not purport to be complete and are qualified in their entireties by the full text of the Certificate of Amendment, which is filed herewith as Exhibit 3.1 to this Report and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
At the Annual Meeting, the Company’s stockholders voted upon the following six proposals, each of which is described in more detail in the Proxy Statement. The final vote results for each proposal were as follows:
Proposal 1: Election of Directors
The stockholders elected each of the eleven nominees listed below to the Company’s board of directors to serve a one-year term beginning upon their election until their respective successors have been duly elected and qualified at the annual meeting of stockholders in 2024.
| For | Withhold | Abstain | Broker Non-Votes |
|||||||||||||
| Deborah L. Byers |
135,274,595 | 93,142 | — | 3,460,257 | ||||||||||||
| Elizabeth P. Cordia |
135,282,338 | 85,399 | — | 3,460,257 | ||||||||||||
| David I. Foley |
135,187,535 | 180,202 | — | 3,460,257 | ||||||||||||
| Jesse Krynak |
135,287,454 | 80,283 | — | 3,460,257 | ||||||||||||
| D. Mark Leland |
135,226,865 | 140,872 | — | 3,460,257 | ||||||||||||
| Kevin S. McCarthy |
135,099,152 | 268,585 | — | 3,460,257 | ||||||||||||
| John-Paul Munfa |
135,286,985 | 80,752 | — | 3,460,257 | ||||||||||||
| Ben C. Rodgers |
135,282,006 | 85,731 | — | 3,460,257 | ||||||||||||
| Ronald Schweizer |
135,287,131 | 80,606 | — | 3,460,257 | ||||||||||||
| Laura A. Sugg |
134,622,493 | 745,244 | — | 3,460,257 | ||||||||||||
| Jamie Welch |
133,329,634 | 2,038,103 | — | 3,460,257 | ||||||||||||
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Proposal 2: Advisory Vote to Approve Named Executive Officer Compensation (Say-on-Pay)
The Company’s stockholders approved, on an advisory non-binding basis, the compensation of the named executive officers of the Company, as disclosed in the Proxy Statement, by the vote indicated below:
| For | Against | Abstain | Broker Non-Votes | |||
| 135,126,424 | 189,838 | 51,475 | 3,460,257 |
Proposal 3: Advisory Vote on the Frequency of Future Advisory Votes on Executive Compensation (Say-on-Frequency)
The Company’s stockholders voted, on an advisory non-binding basis, for the frequency of future advisory votes on compensation for the Company’s named executive officers, the results of which are indicated below:
| Every One Year | Every Two Years | Three One Years | Abstain | Broker Non-Votes | ||||
| 134,884,710 | 164,881 | 306,036 | 12,110 | 3,460,257 |
Based on these results, the Company intends to include a shareholder vote on the compensation of named executive officers in its proxy materials each year until the next non-binding advisory vote on the frequency of say-on-pay proposals.
Proposal 4: Amendment to Certificate of Incorporation – Removal of Supermajority Requirement
The Company’s stockholders approved an amendment to the Company’s Certificate to add a sunset provision for the supermajority vote requirement for changes to Section 9.1 of the Certificate, by the vote indicated below:
| For | Against | Abstain | Broker Non-Votes | |||
| 135,086,860 | 268,327 | 12,550 | 3,460,257 |
Proposal 5: Amendment to Certificate of Incorporation – Officer Exculpation.
The Company’s stockholders approved an amendment to the Company’s Certificate to reflect new Delaware law provisions regarding officer exculpation, by the vote indicated below:
| For | Against | Abstain | Broker Non-Votes | |||
| 130,474,262 | 4,882,750 | 10,725 | 3,460,257 |
Proposal 6: Ratification of the Appointment of Independent Auditor
The appointment of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023 was ratified by the stockholders, by the vote indicated below:
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 138,784,710 | 24,106 | 19,178 | — |
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| Item 9.01. | Financial Statements and Exhibits |
(c) Exhibits. The following exhibit accompanies this Report:
| Exhibit No. |
Exhibit Description | |
| 3.1 | Certificate of Amendment to the Third Amended and Restated Certificate of Incorporation of Kinetik Holdings Inc. (filed herewith) | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
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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.
Date: June 2, 2023
| KINETIK HOLDINGS INC. | ||
| By: | /s/ Todd Carpenter | |
| Name: | Todd Carpenter | |
| Title: | General Counsel, Assistant Secretary and Chief Compliance Officer | |
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Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KINETIK HOLDINGS INC.
May 31, 2023
Kinetik Holdings Inc., a corporation (the “Corporation”) organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “DGCL”), DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is Kinetik Holdings Inc.
SECOND: The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on December 12, 2016 under the name “Kayne Anderson Acquisition Corp.” (the “Original Certificate”). An amended and restated certificate of incorporation, which amended and restated the Original Certificate in its entirety, was filed with the Secretary of State of the State of Delaware on March 29, 2017 (the “First Amended and Restated Certificate”). A Second Amended and Restated Certificate of Incorporation (the “Second Amended and Restated Certificate”), which amended and restated the provisions of the First Amended and Restated Certificate in its entirety, was filed with the Secretary of State of the State of Delaware on November 9, 2018. A First Amendment to the Second Amended and Restated Certificate was effective on June 30, 2020. A Third Amended and Restated Certificate of Incorporation (the “Third Amended and Restated Certificate”), which amended and restated the provisions of the Second Amended and Restated Certificate, as amended, in its entirety, was filed with the Secretary of State of the State of Delaware on February 22, 2022.
THIRD: That the Board of Directors of the Corporation (the “Board”), by the requisite vote of its members, filed with the minutes of the Board, duly adopted resolutions proposing and declaring advisable the following amendments to the Third Amended and Restated Certificate:
RESOLVED, that the Third Amended and Restated Certificate be amended by amending Section 10.1 thereof to read in its entirety as follows:
“Section 10.1 Amendments. The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Third Amended and Restated Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Third Amended and Restated
Certificate and the DGCL; and, except as set forth in Article VIII and Article IX, all rights, preferences and privileges of whatever nature herein conferred upon stockholders, directors or any other persons by and pursuant to this Third Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article X. Notwithstanding the foregoing, any amendment, alteration, change or repeal of any provision contained in Article IX, or any provision inconsistent therewith or herewith, may be adopted, only, (i) until the earlier of (x) the date on which the BCP Sponsors no longer have any rights to designate nominees to the Board or (y) February 22, 2029, by the affirmative vote of the holders of at least sixty six and two thirds percent (66 2/3%) of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class and (ii) on and after the earlier of (x) the date on which the BCP Sponsors no longer have any rights to designate nominees to the Board or (y) February 22, 2029, by the affirmative vote of the holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.”
FURTHER RESOLVED, that the Third Amended and Restated Certificate be further amended by amending Section 8.1 thereof to read in its entirety as follows:
“Section 8.1 Limitation of Director and Officer Liability. A director or officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except for liability (i) for any breach of the director’s or officer’s duty of loyalty to the Corporation or its stockholders, (ii) for any act or omission not in good faith or which involves intentional misconduct or a knowing violation of law, (iii) with respect to any director, under Section 174 of the DGCL, (iv) for any transaction from which the director or officer derived an improper personal benefit or (v) with respect to any officer, in any action by or in the right of the Corporation. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director or officer of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.”
FOURTH: That pursuant to resolution of the Board, a meeting of stockholders of the Corporation was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
FIFTH: That the aforesaid amendment to the Third Amended and Restated Certificate was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
[Signature page follows.]
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be executed by its authorized officer on May 31, 2023.
| KINETIK HOLDINGS INC. | ||
| By: | /s/ Jamie Welch | |
| Name: | Jamie Welch | |
| Title: | Chief Executive Officer, President and Chief Financial Officer | |