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): January 16, 2019
KINDER MORGAN, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation)
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001-35081
(Commission
File Number)
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80-0682103
(I.R.S. Employer
Identification No.)
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1001 Louisiana Street, Suite 1000
Houston, Texas 77002
(Address of principal executive offices, including zip code)
713-369-9000
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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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
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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.
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Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On January 16, 2019, the Board of Directors of Kinder Morgan, Inc. (the “Company”) approved an amendment to the Company’s 2015 Amended and Restated Stock Incentive Plan to provide a minimum vesting period of 36 months for stock-based awards made under the plan, subject to an exception for up to 5% of the shares available for awards under plan. The amendment is filed as Exhibit 10.1 to this report and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On January 22, 2019, the Company filed with the Secretary of State of the State of Delaware a certificate of elimination (the “Certificate of Elimination”) that, effective upon filing, eliminated from the Company’s Amended and Restated Certificate of Incorporation all matters set forth in the Certificate of Designations of 9.75% Series A Mandatory Convertible Preferred Stock (the “Series A Preferred Stock”). No shares of the Series A Preferred Stock were issued and outstanding at the time of the filing of the Certificate of Elimination. A copy of the Certificate of Elimination is filed as Exhibit 3.1 to this report and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
S I G N A T U R E
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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Dated: January 22, 2019
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By:
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/s/ David P. Michels
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David P. Michels
Vice President and Chief Financial Officer
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CERTIFICATE OF ELIMINATION
OF
9.75% SERIES A MANDATORY CONVERTIBLE PREFERRED STOCK
OF
KINDER MORGAN, INC.
(Pursuant to Section 151(g) of the General Corporation Law of the State of Delaware)
Kinder Morgan, Inc. (the “
Company
”), a corporation organized and existing under the General Corporation Law of the State of Delaware, as amended (the “
DGCL
”), does hereby certify that:
1. Pursuant to Section 151 of the DGCL and the authority granted in the Amended and Restated Certificate of Incorporation of the Company, the Board of Directors of the Company by resolutions duly adopted, authorized the issuance of the 9.75% Series A Mandatory Convertible Preferred Stock (the “
Series A Preferred Stock
”), the voting powers, designations, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions thereof were set forth in the Certificate of Designation with respect to such Series A Preferred Stock filed with the Secretary of State of the State of Delaware on October 29, 2015.
2. On October 26, 2018, all of the shares of Series A Preferred Stock outstanding at such time converted to shares of the Company’s Class P common stock, par value $0.01 per share.
3. In accordance with the provisions of Section 151(g) of the DGCL, the Board of Directors of the Company has duly adopted the following resolutions:
RESOLVED
, that none of the authorized shares of the 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 therefor; and further
RESOLVED
, that the Company be, and hereby is, authorized and directed to file with the Secretary of State of the State of Delaware a certificate (the “
Certificate of Elimination
”) containing these resolutions, with the effect under the General Corporation Law of the State of Delaware of eliminating from the Company’s Amended and Restated Certificate of Incorporation all matters set forth in the Certificate of Designations of 9.75% Series A Mandatory Convertible Preferred Stock filed with the Secretary of State of the State of Delaware on October 29, 2015; and further
RESOLVED
, that the proper officers are, and each of them hereby is, authorized and directed, for and on behalf of the Company and in its name, to execute and file the Certificate of Elimination at such time as they deem appropriate, 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 General Corporation Law of the State of Delaware; and further
RESOLVED
, that all of the shares of Series A Preferred Stock shall revert back to the status of authorized and unissued shares of preferred stock, par value $0.01 per share, of the Company, undesignated as to series.
4.
In accordance with the provisions of Section 151(g) of the DGCL, the Series A Preferred Stock, no shares of which remain outstanding on the date hereof, is hereby eliminated from the Amended and Restated Certificate of Incorporation of the Company, along with all references to such series contained therein.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has caused this Certificate of Elimination to be duly executed as of this 22
nd
day of January, 2019.
KINDER MORGAN, INC.
By:
/s/ David P. Michels
David P. Michels
Vice President and Chief Financial Officer
AMENDMENT NO. 3 TO THE
KINDER MORGAN, INC.
2015 AMENDED AND RESTATED
STOCK INCENTIVE PLAN
THIS AMENDMENT NO. 3 (the “Amendment”) to the Kinder Morgan, Inc. 2015 Amended and Restated Stock Incentive Plan, as amended prior hereto (the “Plan”), is effective as of January 15, 2019. Capitalized terms used in this Amendment shall have the same meanings given to them in the Plan unless otherwise indicated.
WHEREAS, the Plan was originally adopted by the Board of Directors (the “Board”) as the Kinder Morgan, Inc. 2011 Stock Incentive Plan, effective as of January 1, 2011. The Plan was amended and restated as the Kinder Morgan, Inc. 2015 Amended and Restated Stock Incentive Plan by the Board on January 21, 2015, and was approved by the Company’s stockholders. The Plan was amended by the Board pursuant to Amendment No. 1 thereto effective as of January 18, 2017, and Amendment No. 2 thereto effective as of July 19, 2017; and
WHEREAS, the Board desires to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended as follows:
1.
Amendments
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The following amendments to the Plan shall be effective only with respect to Awards made on or after January 15, 2019, and shall not affect Awards made prior thereto.
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a.
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Exception to Minimum Exercisability or Vesting Requirement.
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A new subsection (c) shall be added to Section 5 of the Plan as follows:
“(c) Notwithstanding the minimum periods specified in Sections 7(e), 8(h), 9(c), 9(d) and 10(a) for Awards to be exercisable or vest, up to five percent (5%) of the shares of Stock available for Awards under the Plan as of January 15, 2019, subject to adjustment under Section 11, may be granted pursuant to Awards without such minimum exercisability or vesting requirement.”
Section 7(e) of the Plan shall be deleted in its entirety and replaced with the following:
“(e) Each Option shall become exercisable in whole or in part or in installments at such time or times as the Committee may prescribe at the time the Option is granted and specify in the Option Agreement; provided, that no Option shall be exercisable less than 36 months after it is granted, except in the event of a Change in Control of the Company.”
Section 8(h) of the Plan shall be deleted in its entirety and replaced with the following:
“(h) With respect to Restricted Stock and Restricted Stock Units, the Restricted Period shall commence on the Date of Grant and end at the time or times set forth on a schedule established by the Committee in the applicable Award Agreement; provided, that no Restricted Period shall be less than 36 months.”
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d.
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Stock Appreciation Rights.
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Section 9(c) of the Plan shall be deleted in its entirety and replaced with the following:
“(c) Free Standing Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at or after grant; provided, that no Free Standing Right shall be exercisable less than 36 months after it is granted, except in the event of a Change in Control of the Company.”
Section 9(d) of the Plan shall be deleted in its entirety and replaced with the following:
“(d) Related Stock Appreciation Rights shall be exercisable only at such time or times and to the extent that the Options to which they relate shall be exercisable in accordance with the provisions of Section 7 above and this Section 9 of the Plan; provided, that no Related Stock Appreciation Right shall be exercisable less than 36 months after it is granted, except in the event of a Change in Control of the Company.”
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e.
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Other Stock-Based Awards.
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Section 10(a) of the Plan shall be deleted in its entirety and replaced with the following:
“(a) The Committee is authorized to grant Awards to Grantee in the form of Other Stock-Based Awards, as deemed by the Committee to be consistent with the purposes of the Plan and as evidenced by an Award Agreement. Other Stock-Based Awards shall include a right or other interest granted to a Grantee under the Plan that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Stock, including but not limited to performance units, each of which may be subject to the attainment of Performance Goals or a period of continued employment or other terms or conditions as determined by the Committee. The Committee shall determine the terms and conditions of such Other Stock-Based Awards, consistent with the terms of the Plan, at the Date of Grant or thereafter, including any Performance Goals and Performance Periods. Stock or other securities or property delivered pursuant to an Award in the nature of a purchase right granted under this Section 10 shall be purchased for such consideration, paid for at such times, by such methods, and in such forms, including, without limitation, Stock, other Awards, notes or other property, as the Committee shall determine, subject to any required corporate action; provided, that no Other Stock-Based Award shall vest less than 36 months after it is granted, except in the event of a Change in Control of the Company.”
2.
Effect on the Plan.
Other than as specifically set forth herein, all other terms and provisions of the Plan shall remain unaffected by the terms of this Amendment, and shall continue in full force and effect.
