UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
(Amendment No. 1)
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| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 20162017
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| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from _______________ to _______________
Commission file number: 000-51719
LINN ENERGY, INC.
(Successor in interest to Linn Energy, LLC)
(Exact name of registrant as specified in its charter)
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| Delaware | | 81-5366183 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
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600 Travis Houston, Texas | | 77002 |
| (Address of principal executive offices) | | (Zip Code) |
Registrant’s telephone number, including area code
(281) 840-4000
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes ¨x No x¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes xNo ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes xNo ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filerx | ¨ | Accelerated filer | ¨ |
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Non-accelerated filer | ¨ | (Do not check if a smaller reporting company) | | Smaller reporting company x |
| | | Smaller reporting company | x |
| | 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. ¨
Indicate by check-mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes¨ ¨ No x
The aggregate market value of voting and non-voting common equity held by non-affiliates of the registrant was approximately $20 million$1.1 billion on June 30, 2016,2017, based on $0.09$30.54 per unit,share, the last reported sales price of the units of Linn Energy, LLCshares on the OTC Markets Group Inc.’s Pink marketplaceOTCQB market on such date.
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Section 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes xNo ¨
As of February 28, 2017,January 31, 2018, there were 89,229,89277,229,257 shares of Class A common stock, par value $0.001 per share, outstanding.
Documents Incorporated By Reference:
None
EXPLANATORY NOTE
When referring to Linn Energy, Inc. (formerly known as Linn Energy, LLC) (“Successor,” “LINN Energy” or the “Company”), the intent is to refer to LINN Energy, Inc. a newly formed Delaware corporation formed in February 2017, and its consolidated subsidiaries as a whole or on an individual basis, depending on the context in which the statements are made. Linn Energy, Inc. is a successor issuer of Linn Energy, LLC pursuant to Rule 15d-5 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Linn Energy, Inc. is not a successor of Linn Energy, LLC for purposes of Delaware corporate law. When referring to the “Predecessor” in reference to the period prior to the emergence from bankruptcy, the intent is to refer to Linn Energy, LLC, the predecessor that will be dissolved following the effective date of the Amended Joint Chapter 11 Plan of Reorganization of Linn Energy, LLC and Its Debtor Affiliates Other Than Linn Acquisition Company, LLC and Berry Petroleum Company, LLC (the “Plan”) and resolution of all outstanding claims, and its consolidated subsidiaries as a whole or on an individual basis, depending on the context in which the statements are made.
LINN Energy is an independent oil and natural gas company that was formed in February 2017, in connection with the reorganization of the Predecessor. The Predecessor was publicly traded from January 2006 to February 2017. On May 11, 2016, Linn Energy, LLC, and certain of its direct and indirect subsidiaries, and LinnCo (collectively, the “LINN Debtors”) and Berry (collectively with the LINN Debtors, the “Debtors”), filed voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code (“Bankruptcy Code”) in the U.S. Bankruptcy Court for the Southern District of Texas (“Bankruptcy Court”). The Debtors’ Chapter 11 cases were administered jointly under the caption In re Linn Energy, LLC.,LLC, et al., Case No. 16‑60040. During the pendency of the Chapter 11 proceedings, the Debtors operated their businesses as “debtors-in-possession” under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code. The Company emerged from bankruptcy effective February 28, 2017 (the “Effective Date”).
LINN Energy is filing this Amendment No. 1 on Form 10-K/A (the “Amended Filing”) to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 20162017 (the “Original Filing”), filed with the Securities and Exchange Commission (“SEC”) on March 23, 2017,February 27, 2018, solely to disclose all Part III information. In accordance with Rule 12b-15 under the Exchange Act, this Amended Filing includes certifications from the Company’s Chief Executive Officer and Chief Financial Officer dated as of the date of this filing. Accordingly, Item 15 of Part IV has also been amended to reflect the filing of these currently dated certifications.
All other items as presented in the Original Filing are unchanged. Except for the foregoing amended information, this Amended Filing does not amend, update or change any other information presented in the Original Filing.
TABLE OF CONTENTS
Item 10. Directors, Executive Officers and Corporate Governance
The Company’s business and affairs are managed by a board of directors (“Board”(the “Board”) and executive officers. Prior toThe names, ages and positions of the Effective Date, the Predecessor’sCompany’s current directors were elected annually and executive officers, were appointed for one-year terms. Astogether with certain information concerning each of the Effective Date inthem as of March 31, 2018, is set forth below. In accordance with the Company’s Amended and Restated Certificate of Incorporation, (“New Charter Documents”), the following individuals were appointed to the Board toeach of our current directors will serve until the Company’s first annual meeting (which shall befollowing the Effective Date. The Board currently consists of the six members described below. One additional authorized director seat remains vacant.
There are no earlier than February 28, 2018,family relationships among any of our directors and executive officers. Certain of our executive officers served as officers of the “First Election”). At all timesCompany prior to the First Election, (a) the total number of directors shall be seven and (b) no director may be removed, with or without cause, without the affirmative vote or written consent of the holders of at least seventy-five percent (75%) of the voting power of the shares entitled to vote generally in the election of directors; provided, however, that in the event the Board approves a listing on a national exchange or an initial public offering prior to the First Election, the restrictions set forth above shall cease to apply.during its Chapter 11 proceedings.
Directors and Executive Officers of the Company (Post-Effective Date Successor)
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| Name | | Age
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| Evan Lederman | | 38 | | Chairman and Director |
| Matthew Bonanno | | 39 | | Director |
| Philip Brown | | 40 | | Director |
| Andrew Taylor | | 40 | | Director |
| Mark E. Ellis | | 6061 | | President, Chief Executive Officer and Director |
| David B. Rottino | | 5051 | | Executive Vice President, Chief Financial Officer and Director |
Evan Lederman | | 37 | | Chairman and Director |
Matthew Bonanno | | 38 | | Director |
Philip Brown | | 39 | | Director |
Kevin Mahony | | 29 | | Director |
Andrew Taylor | | 39 | | Director |
| Arden L. Walker, Jr. | | 5758 | | Executive Vice President and Chief Operating Officer |
Thomas E. EmmonsCandice J. Wells | | 4843 | | Senior Vice President, –General Counsel and Corporate ServicesSecretary |
| Jamin B. McNeil | | 5152 | | Senior Vice President – Houston Division Operations |
Candice J. WellsThomas E. Emmons | | 4249 | | Senior Vice President General Counsel and– Corporate SecretaryServices |
Evan Lederman has served on the Company’s Board since the Effective Date and as Chairman of the Board since March 2, 2017. Mr. Lederman serves on the Company’s Audit and Compensation Committees. Mr. Lederman is a Managing Director, Co-Head of Restructuring and a Partner on the Investment Team at Fir Tree Partners. Mr. Lederman focuses on the funds’ distressed credit and special situation investment strategies, including co-managing its energy restructuring initiatives. Prior to joining Fir Tree Partners, Mr. Lederman worked in the Business Finance and Restructuring groups at Weil, Gotshal & Manges LLP and Cravath, Swaine & Moore LLP. In addition to the Company, Mr. Lederman is currently a member of the boards, in his capacity as a Fir Tree Partner’s employee, of Ultra Petroleum Corp. (Chairman), Amplify Energy Corp., New Emerald Energy LLC, Roan Resources LLC and Deer Finance, LLC. Mr. Lederman received a J.D. degree with honors from New York University School of Law and a B.A., magna cum laude, from New York University.
Matthew Bonanno has served on the Company’s Board since the Effective Date. He also serves as Chairman of the Company’s Audit Committee and on the Company’s Compensation Committee. Mr. Bonannojoined York Capital Management in July 2010 and is a Partner of the Firm and the Co-Head of North America Credit. Mr. Bonanno joined York from the Blackstone Group where he worked as an associate focusing on restructuring, recapitalization and reorganization transactions. Prior to joining the Blackstone Group, Mr. Bonanno worked on financing and strategic transactions at News Corporation and as an Investment Banker at JP Morgan and Goldman Sachs. In addition to the Company, Mr. Bonanno is currently a member of the Boards, in his capacity as a York employee, of Rever Offshore AS, and all entities incorporated pursuant to York’s partnership with Costamare Inc. and Augustea Bunge Maritime, Next Decade LLC, Vantage Drilling Co., Roan Resources LLC and Samson Resources II, LLC. Mr. Bonanno is also a member of the Board of Directors of the Children’s Scholarship Fund. Mr. Bonanno received a B.A. in History from Georgetown University and an M.B.A in Finance from The Wharton School of the University of Pennsylvania.
Philip Brown has served on the Company’s Board since the Effective Date and serves on the Company’s Audit and Compensation Committees. Mr. Brown joined P. Schoenfeld Asset Management (“PSAM”) in 2009 and is a Partner of the firm, where he focuses on credit-oriented investments across various industries. Prior to joining PSAM, Mr. Brown held positions at Sun Capital Partners, Inc., an operationally-focused private equity firm, and Buckeye Capital Partners, an event-driven hedge fund. He began his career as an investment banking analyst at Wasserstein Perella & Co.
Andrew Taylor has served on the Company’s Board since the Effective Date and serves as Chairman of the Company’s Compensation Committee and on the Company’s Audit Committee. Mr. Taylor is a member of the investment team of Elliott Management Corporation (“Elliott”), a New York-based trading firm, where he is responsible for various corporate investments. Prior to joining Elliott in 2015, Mr. Taylor held similar positions in BlackRock’s Distressed Products Group, R3 Capital Partners and the Global Principal Strategies team at Lehman Brothers. In addition to the Company, Mr. Taylor, in his capacity as an Elliott employee, serves on the Board of Roan Resources LLC and Birch Permian Holdings, Inc.
Mark E. Ellis is the Successor’sCompany’s President and Chief Executive Officer in addition to serving on the Board and has served in such capacity since the Effective Date. He previously served as the Predecessor’s Chairman, President and Chief Executive Officer from December 2011 to February 2017, the President, Chief Executive Officer and Director from January 2010 to December 2011 and the President and Chief Operating Officer from December 2007 to January 2010. Mr. Ellis serves on the boards of PDC Energy, Inc., the Independent Petroleum Association of America, American Exploration & Production Council and the Houston Museum of Natural Science. Mr. Ellis is a member of the Society of Petroleum Engineers.
David B. Rottino is the Successor’sCompany’s Executive Vice President and Chief Financial Officer in addition to serving on the Board and has served in such capacity since the Effective Date. He previously served as the Predecessor’s Executive Vice President and Chief Financial Officer from August 2015 to February 2017 and as Executive Vice President, Business Development and Chief Accounting Officer from January 2014 to August 2015. From July 2010 to January 2014, he served as Senior Vice President of Finance, Business Development and Chief Accounting Officer and from June 2008 to July 2010, Mr. Rottino served as Senior Vice President and Chief Accounting Officer.
Evan Lederman was appointed to the Successor’s Board on the Effective Date. Mr. Lederman is a Managing Director, Co-Head of Restructuring and a Partner on the Investment Team at Fir Tree Partners. Prior to joining Fir Tree Partners, Mr. Lederman worked in the Business Finance and Restructuring groups at Weil, Gotshal & Manges LLP and Cravath, Swaine & Moore LLP. In addition to LINN Energy, Mr. Lederman is currently a member of the board, in his capacity as a Fir Tree Partner’s employee, of Amplify Energy (formally Memorial Production Partners), New Emerald Energy LLC, and Deer Finance, LLC.
Matthew Bonanno was appointed to the Successor’s Board on the Effective Date. Mr. Bonanno joined York Capital Management (“York”) in July 2010 and is a Partner of the firm. Mr. Bonanno joined York from the Blackstone Group, where he worked as an associate focusing on restructuring, recapitalization and reorganization transactions. Prior to joining the Blackstone Group, he worked on financing and strategic transactions at News Corporation and as an investment banker at JP
Item 10. Directors, Executive Officers and Corporate Governance - Continued
Morgan and Goldman Sachs. Mr. Bonanno is currently a member of the board, in his capacity as a York employee, of Rever Offshore AS, all entities incorporated pursuant to York’s partnership with Costamare Inc. and Augustea Bunge Maritime, Next Decade LLC and Vantage Drilling Co.
Philip Brown was appointed to the Successor’s Board on the Effective Date. Mr. Brown joined P. Schoenfeld Asset Management (“PSAM”) in 2009 and is a Partner of the firm where he focuses on credit-oriented investments across various industries. Prior to joining PSAM, Mr. Brown held positions at Sun Capital Partners, Inc., an operationally-focused private equity firm, and Buckeye Capital Partners, an event-driven hedge fund. He began his career as an investment banking analyst at Wasserstein Perella & Co.
Kevin Mahony was appointed to the Successor’s Board on the Effective Date. Mr. Mahony is a Principal at Centerbridge Partners (“Centerbridge”), which he joined in July 2014. Prior to joining Centerbridge, Mr. Mahony was an associate at Oaktree Capital Management in its Global Principal Group and an investment banking analyst at Lazard in its Restructuring Group. He is currently a member of the board of directors, in his capacity as a Centerbridge employee, of Genco Shipping & Trading.
Andrew Taylor was appointed to the Successor’s Board on the Effective Date. Mr. Taylor is a member of the investment team of Elliott Management Corporation (“Elliott”), a New York-based trading firm, where he is responsible for various corporate investments. Prior to joining Elliott in 2015, Mr. Taylor held similar positions in BlackRock’s Distressed Products Group, R3 Capital Partners and the Global Principal Strategies team at Lehman Brothers.
Arden L. Walker, Jr. is the Successor’sCompany’s Executive Vice President and Chief Operating Officer and has served in such capacity since the Effective Date. He previously served as the Predecessor’s Executive Vice President and Chief Operating Officer from January 2011 to February 2017. From January 2010 to January 2011, Mr. Walker served as Senior Vice President and Chief Operating Officer. Mr. Walker joined the Company in February 2007 as Senior Vice President, Operations and Chief Engineer. Mr. Walker is a member of the Society of Petroleum Engineers and Independent Petroleum Association of America. He also serves on the board of the Sam Houston Area Council of the Boy Scouts of America.
Thomas E. Emmons is the Successor’s Senior Vice President – Corporate Services and has served in such capacity since the Effective Date. He previously served as the Predecessor’s Senior Vice President – Corporate Services from January 2014 to February 2017. From September 2012 to January 2014, Mr. Emmons served as Vice President – Corporate Services and from August 2008 to September 2012, Mr. Emmons served as Vice President, Human Resources and Environmental, Health and Safety.
Jamin B. McNeil is the Successor’s Senior Vice President – Houston Division Operations and has served in such capacity since the Effective Date. He previously served as the Predecessor’s Senior Vice President – Houston Division Operations from January 2014 to February 2017. From June 2007 to January 2014, Mr. McNeil served as Vice President – Houston Division Operations. Mr. McNeil is a member of the Society of Petroleum Engineers.
Candice J. Wells is the Successor’sCompany’s Senior Vice President, General Counsel and Corporate Secretary and has served in such capacity since the Effective Date. She previously served as the Predecessor’s Senior Vice President, General Counsel and Corporate Secretary from January 2016 to February 2017. From October 2013 to January 2016, Ms. Wells served as Vice President, General Counsel and Corporate Secretary. From March 2013 to October 2013, Ms. Wells served as Vice President, acting General Counsel and Corporate Secretary and from September 2011 to March 2013, she served as Vice President, Assistant General Counsel and Corporate Secretary.
Jamin B. McNeil is the Company’s Senior Vice President – Houston Division Operations and has served in such capacity since the Effective Date. He previously served as the Predecessor’s Senior Vice President – Houston Division Operations from January 2014 to February 2017. From June 2007 to January 2014, Mr. McNeil served as Vice President – Houston Division Operations. Mr. McNeil is a member of the Society of Petroleum Engineers.
Thomas E. Emmons is the Company’s Senior Vice President – Corporate Services and has served in such capacity since the Effective Date. He previously served as the Predecessor’s Senior Vice President – Corporate Services from January 2014 to February 2017. From September 2012 to January 2014, Mr. Emmons served as Vice President – Corporate Services and from August 2008 to September 2012, Mr. Emmons served as Vice President, Human Resources and Environmental, Health and Safety.
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
The Company has no securities registered pursuant to Section 12 of the Exchange Act; thus the provisions of Section 16(a) of the Exchange Act requiresare not applicable to the Company’s directors and executive officers, and persons who own more than 10% of a registered class of the Company’s equity securities, to file with the SEC and any exchange or other system on which such securities are traded or quoted, initial reports of ownership and reports of changes in ownership of the Company’s common stock and other equity securities. Officers, directors and more than 10% stockholders are required by the SEC’s regulations to furnish the Company and any exchange or other system on which such securities are traded or quoted with copies of all Section 16(a) forms they filed with the SEC.Company.
Item 10. Directors, Executive Officers and Corporate Governance - Continued
To the Company’s knowledge, based solely on a review of the copies of such reports furnished to the Company and written representations that no other reports were required, the Company believes that all reporting obligations of the Company’s officers, directors and more than 10% stockholders under Section 16(a) were satisfied during the year ended December 31, 2016.
CORPORATE GOVERNANCE
Governance Guidelines and Codes of Ethics
The Company’s Board has adopted Corporate Governance Guidelines to assist it in the exercise of its responsibility to provide effective governance over the Company’s affairs for the benefit of its shareholders. In addition, the Company has adopted a Code of Business Conduct and Ethics, which sets forth legal and ethical standards of conduct for all the Company’s employees, as well as the Company’s directors. The Company also has adopted a separate code of ethics which applies to the Company’s Chief Executive Officer and Senior Financial Officers. All of these documents are available on the Company’s website, www.linnenergy.com, and will be provided free of charge to any shareholder requesting a copy by writing to the Company’s Corporate Secretary, Linn Energy, Inc., 600 Travis, Houston, Texas 77002. If any substantive amendments are made to the Code of Ethics for the Company’s Chief Executive Officer and Senior Financial Officers or if the Company grants any waiver, including any implicit waiver, from a provision of such code, the Company will disclose the nature of such amendment or waiver within four business days on its website. The information on the Company’s website is not, and shall not be deemed to be, a part of this filing or incorporated into any other filings the Company makes with the SEC.
Communications to the Company’s Board of Directors
The Company’s Board has a process in place for communication with shareholders. Shareholders should initiate any communications with the Company’s Board in writing and send them to LINN Energy’s Board c/o Candice J. Wells, Senior Vice President, General Counsel and Corporate Secretary, Linn Energy, Inc., 600 Travis, Houston, Texas 77002. All such communications will be forwarded to the appropriate directors. This centralized process will assist the Company’s Board in reviewing and responding to shareholder communications in an appropriate manner. If a shareholder wishes for a particular director or directors to receive any such communication, the shareholder must specify the name or names of any specific Board recipient or recipients in the communication. Communications to the Company’s Board must include the number of shares owned by the shareholder as well as the shareholder’s name, address, telephone number and email address, if any.
Board of Directors
Composition and Independence
The following information relatesCompany is traded on the OTCQB market, the applicable standards of which do not require the Company to have a majority of independent directors; however, each of Mr. Lederman, Mr. Taylor, Mr. Bonanno and Mr. Brown meet the Predecessordefinition of Independent Director in NASDAQ Marketplace Rule 5605(a)(2). Mr. Ellis and Mr. Rottino do not meet the activitiesNASDAQ definition of Independent Director because they are employees of the Predecessor’s Board of Directors for the year ended December 31, 2016. The applicable information for the period following the Effective Date will be contained in the Company’s Annual Report on Form 10-K and any amendments for the year ended December 31, 2017.Company.
Meetings of the Predecessor’s Board of Directors; Executive SessionsDirectors
The Predecessor’s Board heldholds regular and special meetings from time to time as necessary. Regular meetings may be held without notice on dates set by the Predecessor’s Board. Special meetings of the Predecessor’s Board may be called with reasonable24 hours’ notice to each member (unless waived) upon request of the Chairman of the Board, the Chief Executive Officer or upon the written request of any threetwo Board members. A quorum for a regular or special meeting will exist when a majority of the members are participating in the meeting either in person or by conference telephone. Any action required or permitted to be taken at a Board meeting may be taken without a meeting, without prior notice and without a vote if all of the members sign a written consent authorizing the action.
During 2016,2017, the Predecessor’s Board held fivefour regular and nineeleven special meetings. The standing committees of the Company’s Board held an aggregate of ninesix meetings during this period. Each director attended at least 75% of the aggregate number of meetings of the Board and committees on which he served.
The Corporate Governance Guidelines adopted by Due to requirements contained in the Predecessor’s Board provide thatCompany’s Restated Certificate of Incorporation following its emergence from bankruptcy, the independent directors will meetCompany did not hold an annual meeting in executive session at least quarterly, or more frequently if necessary. The lead director will chair the executive sessions of the independent directors.
Item 10. Directors, Executive Officers and Corporate Governance - Continued
2017.
Leadership Structure
The Board determined that Mr. Lederman, as representative of one of the Predecessor
The Predecessor’s Nominating Committee believed thatCompany’s largest shareholders, should serve as Chairman of the Board, while Mr. Ellis servingwould serve as both Chairman and Chief Executive Officer (“CEO”) wasOfficer. The Board believes that this is the most effective leadership structure for the PredecessorCompany because it made clear that the Chairman of the Board, and CEO is responsible for managingacting through its Chair, intends to have an active role in the Company’s business under the oversight and reviewmanagement of the Company’s Board, and enabled the Company’s CEO to act as a bridge between management and the Board, helping both to act with a common purpose.business.
Lead Director of the Predecessor
David D. Dunlap served as lead director of the Predecessor from February 2013 through January 2017. The lead director had clearly defined leadership authority and responsibilities, which included presiding at all meetings of the Board at which the Chairman of the Board was not present, including executive sessions of the independent directors, and served as liaison between the Chairman of the Board and the independent directors. The Company’s lead director was afforded direct and complete access to the Chairman of the Board at any time as such director deemed necessary or appropriate.
Risk Oversight
The Board provides oversight of the Company’s major risk exposures and the steps management has taken to monitor and manage such exposures. The Board also consults with the Compensation Committee of the Board regarding the Company’s major risk exposures and whether the Company’s compensation policies and practices create risks that are reasonably likely to have a material adverse effect on the Company. The Predecessor’s Compensation Committee determined that, with respect to 2016, the Company’s compensation policies and practices did not create risks that are reasonably likely to have a material adverse effect on the Company.
Committees of the Predecessor’s Board of Directors
The Predecessor’s Board had standinghas an Audit Committee and Compensation andCommittee with the members identified below. Subsequent to the Effective Date, the Board does not have a Nominating and Governance Committees. Each member of these committees was an independent directorCommittee, and directors and nominees are selected in accordance with the listing standardsCompany’s Restated Certificate of the NASDAQ Global Select Market (“NASDAQ”) and applicable SEC rules. Incorporation.
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| BOARD MEMBERS | AUDIT
COMMITTEE | COMPENSATION
COMMITTEE |
| Evan Lederman | | |
| Matthew Bonanno | | |
| Phillip Brown | | |
| Andrew Taylor | | |
| Mark E. Ellis | | |
| David B. Rottino | | |
The Predecessor’s Board adopted a written charter for each of these committees, which sets forth each committee’s purposes, responsibilities and authority. Each committee reviews and assesses, on an annual basis, the adequacy of its charter and recommends any proposed modifications. These committee charters are available on the Company’s website at www.linnenergy.com. You may also contact Candice J. Wells, the Company’s Senior Vice President, General Counsel and Corporate Secretary at Linn Energy, Inc., 600 Travis, Houston, Texas 77002, to request paper copies free of charge. The following is a brief description of the functions and operations of the standing committees of the Predecessor’s Board.
Members of the Committees of the Predecessor’s Board of Directors
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BOARD MEMBERS | AUDIT
COMMITTEE | COMPENSATION
COMMITTEE | NOMINATING AND GOVERNANCE COMMITTEE |
David D. Dunlap | | | |
Mark E. Ellis | | | |
Stephen J. Hadden | | | |
Michael C. Linn | | | |
Joseph P. McCoy | | | |
Jeffrey C. Swoveland | | | |
Item 10. Directors, Executive Officers and Corporate Governance - Continued
Audit Committee
During 2017, the Audit Committee held four meetings. The Audit Committee assists the Company’s Board in its general oversight of the Company’s financial reporting, internal controls, audit functions and oil and natural gas reserves, and is directly responsible for the appointment, retention, compensation and oversight of the work of the Company’s independent public accountant. During 2016, the Audit Committee held five meetings. In 2016, each member of the Audit Committee was “independent” as defined by the NASDAQ listing standards and applicable SEC rules, and was financially literate. Mr. McCoy was designated the “audit committee financial expert” for 2016.
The Company’s Audit Committee also reviews, on an annual basis, related party transactions and other specific matters that the Company’s Board believes may involve conflicts of interest. The Audit Committee determines if the related party transaction or resolution of the conflict of interest is in the best interest of the Company. In accordance with the Predecessor’s limited liability company agreement, any conflict of interest matters approved by the Audit Committee was conclusively deemed to be fair and reasonable to the Company and approved by all of the Company’s unitholders. The report of the Company’s Audit Committee appears under the heading “Report of the Audit Committee.”
AsThe standards of the Effective Date,OTCQB market applicable to the Company do not contain requirements regarding the composition of the Audit Committee. Each of the members of the Predecessor’s Audit Committee were replaced with board members appointed in accordance with the New Charter Documents and a new Audit Committee was formed. The Successor’sCompany’s Audit Committee is composedfinancially literate, but the current Audit Committee likely does not meet the other requirements contained in NASDAQ Marketplace Rule 5605-4 regarding Audit Committee Composition because three of the four members may not meet the criteria for independence set forth in Rule 10A-3(b)(1) under the Exchange Act. Each of Messrs. Lederman, Taylor and Bonanno (Chair), Brown, Lederman, Mahonyrepresent a fund or funds that own greater than 10% of the Company’s outstanding common stock and Taylor (“New Audit Committee”).thus each may be deemed an “affiliate” under the rule.
Compensation Committee
The Compensation Committee’s primary responsibilities are to: (i) approve the compensation arrangements for the Company’s senior management, and for the Company’s Board members, including establishment of salaries and bonuses and other compensation for the Company’s executive officers, (ii) to approve any compensation plans in which the Company’s officers and directors are eligible to participate and (iii) to administer such plans, including the granting of equity awards or other benefits under any such plans and (iii) to review and discuss with the Company’s management the Compensation Discussion and Analysis to be included in the Company’s annual proxy statement. The Compensation Committee also oversees the preparation of the report on executive compensation for inclusion in the Company’s annual proxy statement.
plans. During 2016,2017, the Compensation Committee held threetwo meetings. During 2016, each
The standards of the OTCQB market applicable to the Company do not contain requirements regarding the composition of the Compensation Committee members was “independent”Committee. Because the Company qualifies as defined by the NASDAQ listing standards. All Compensation Committee members in 2016 were also “non-employee directors” as defined by Rule 16b-3a “smaller reporting company” under the Exchange Act and “outside directors” under Rule 162(m)each of the Internal Revenue Code (the “Code”). The report of the Company’s Compensation Committee appears under the heading “Compensation Committee Report.”
Procedures and Processes for Determining Executive and Director Compensation
Please refer to “Compensation Discussion and Analysis – The Compensation Committee,” for a discussion of the Compensation Committee’s procedures and processes for making compensation determinations.
Compensation Committee Interlocks and Insider Participation
In 2016, no member of the Predecessor’s Compensation Committee served as a member of the board of directors or compensation committee of any entity that had one or more executive officers serving as a member of the Predecessor’s Board or Compensation Committee. No member of the Predecessor’s Compensation Committee had ever been an officer or employee of the Company. There are no family relationships among any of the Company’s directors or executive officers.
As of the Effective Date, the members of the Predecessor’s Compensation Committee were replaced with board members appointed in accordance withmeets the New Charter Documents and a newdefinition of an Independent Director, the current Compensation Committee was formed. The Successor’s Compensation Committee is composed of Messrs. Taylor (Chair), Bonanno, Brown, Lederman and Mahony (“New Compensation Committee”).
Item 10. Directors, Executive Officers and Corporate Governance - Continued
Nominating and Governance Committee
The Predecessor’s Nominating Committee’s primary responsibilities were to: (i) develop criteria, recruit and recommend candidates for election tomeets the Company’s Board, (ii) develop and recommend corporate governance guidelines to the Company’s Board, and to assist the Company’s Board in implementing such guidelines, (iii) lead the Company’s Board in its annual review of the performance of the Board and its Committees, (iv) review and recommend to the Board amendments, as appropriate, to the Company’s Code of Business Conduct and Ethics and the Company’s Code of Ethics for Chief Executive Officer and Senior Financial Officers and (v) assess the independence of each non-employee director and to determine whether a director qualified as an “audit committee financial expert.” The Predecessor’s Nominating Committee considered the following qualifications, along with such other individual qualities the Board identified from time to time, for director nominees:
personal and professional integrity and high ethical standards;
good business judgment;
an excellent reputation in the industry in which the nominee or director is or has been primarily employed;
a sophisticated understanding of the Company’s business or similar businesses;
curiosity and a willingness to ask probing questions of management;
the ability and willingness to work cooperatively with other members of the Board and with the Chief Executive Officer and other senior management; and
the ability and willingness to support the Company with his or her preparation for, attendance at and participation in Board meetings.
The Predecessor’s Nominating Committee evaluated each nominee based upon a consideration of a nominee’s qualification as independent and consideration of diversity, age, skills and experience in the context of the needs of the Board as described in the Company’s Corporate Governance Guidelines. The Predecessor’s Nominating Committee did not have a policy with regard to the consideration of diversity in identifying director nominees. Diversity, including diversity of experience, professional expertise, gender, race and age, was one factor outlined in the Company’s Corporate Governance Guidelines that the Predecessor’s Nominating Committee considered in evaluating a nominee. The Predecessor’s Nominating Committee relied on various sources to identify director nominees. These included input from directors, management, professional search firms and others that the Predecessor’s Nominating Committee determined were reliable.
In 2016, the Predecessor’s Nominating Committee held one meeting and each member of the Predecessor’s Nominating Committee was “independent” as defined by thecomposition requirements under NASDAQ listing standards.
Prior to the Effective Date, the Predecessor’s Nominating Committee considered director candidate suggestions made by unitholders in the same manner as other candidates. Subsequent to the Effective Date, the Board does not have a Nominating and Governance Committee and directors and nominees are selected in accordance with the New Charter Documents.Marketplace Rule 5605-6.
Report of the Audit Committee
The Audit Committee oversees the Company’s financial reporting process on behalf of the Board. Management has the primary responsibility for the preparation of the financial statements and the reporting process, including the systems of internal control.
With respect to the consolidated financial statements for the year ended December 31, 2016,2017, the New Audit Committee reviewed and discussed the consolidated financial statements of LINN Energy and the quality of financial reporting with management and the independent public accountant. In addition, it discussed with the independent public accountant the matters required to be discussed by Auditing Standard No. 16, Communications with Audit Committees, as adopted by the Public Company Accounting Oversight Board (“PCAOB”) on August 15, 2012. The New Audit Committee also discussed
Item 10. Directors, Executive Officers and Corporate Governance - Continued
with the independent public accountant its independence from LINN Energy and received from the independent public accountant the written disclosures and the letter from the independent public accountant complying with the applicable requirements of the PCAOB regarding the independent public accountant’s communications with the New Audit Committee concerning independence. The New Audit Committee determined that the non-audit services provided to LINN Energy by the independent public accountant are compatible with maintaining the independence of the independent public accountant.
Based on the reviews and discussions described above, the New Audit Committee recommended to the Company’s Board that the consolidated financial statements of LINN Energy be included in the Original Filing.
|
| |
| | Submitted By: |
| | Audit Committee |
| | Matthew Bonanno (Chair) Philip Brown Evan Lederman Kevin Mahony
Andrew Taylor |
Notwithstanding anything to the contrary set forth in any of the Company’s previous or future filings under the Securities Act of 1933, as amended, (the “Securities Act”), or the Exchange Act that might incorporate this Amended Filing or future filings with the SEC, in whole or in part, the preceding report shall not be deemed to be “soliciting material” or to be “filed” with the SEC or incorporated by reference into any filing except to the extent the foregoing report is specifically incorporated by reference therein.
Item 11. Executive Compensation
2016 Executive Summary
Throughout 2015 and early 2016, the Company undertook a number of actions to address the impact of continued low commodity prices and the Company’s level of indebtedness, including minimizing capital expenditures, further reducing its recurring operating expenses and repurchasing and exchanging certain of its unsecured debt obligations. Despite taking these actions, the Company was ultimately unable to ensure sufficient liquidity to satisfy its debt service obligations, meet other financial obligations and comply with its debt covenants. As a result, the Company and its subsidiaries and affiliates filed Bankruptcy Petitions for relief under Chapter 11 of the Bankruptcy Code in May 2016.2017 SUMMARY COMPENSATION TABLE
The Company maintained normal business operations throughout the course of the bankruptcy and received confirmation of a plan of reorganization, which enabled the Company to emerge from bankruptcy on February 28, 2017. However, the Company’s efforts at restructuring and ultimate bankruptcy filing significantly impacted the Company’s compensation practices during 2016, and limitations under the Bankruptcy Code effectively prohibited the Company from following its normal compensation program and calendar. Because 2016 was an unprecedented year, the Company’s pay practices during 2016 were tied to its successful reorganization and are specific to 2016 only.
2016 Executive Compensation Highlights and Compensation Philosophy
At the beginning of 2016, the Predecessor’s Compensation Committee extended the salary freeze in effect for all Named Officers whose base salaries had remained unchanged since 2014, other thantable sets forth certain information with respect to Mr. Rottino whose base salary was increased upon his promotionthe compensation paid for the fiscal years ended December 31, 2017 and 2016 to the Company’s Chief Executive Officer, Chief Financial Officer in 2015. The Company has historically used traditional compensation elements of base salary, annual cash incentives, long-term equity-based incentives and employee benefits to deliver competitive compensation. Because ofChief Operating Officer (collectively, the expected focus on restructuring throughout 2016, the Predecessor’s Compensation Committee sought to adopt an entirely new compensation structure designed to address the challenges of incentivizing and retaining Named Officers and all employees during this time. The Compensation Committee retained the compensation consultant Alvarez & Marsal (“A&M”“Named Officers”) to assist in developing a plan. As a result of this process, the Predecessor’s Compensation Committee adopted the Linn Energy, LLC Executive Incentive Plan (“Incentive Plan”) in February 2016, which provided quarterly cash based compensation to the Company’s Named Officers upon the achievement
:
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| | | | | | | | | | | | | | | | | |
| (a) | | (b) | | (c) | | (d) | | (e) | | (f) | | (g) | | (h) | |
| Name & Principal Position | | Year | | Salary ($) | | | | Stock Awards ($) (1) | | Non-Equity
Incentive Plan
Compensation
($) (2) | | All Other
Compensation
($) (3) | | Total ($) (4) | |
Mark E. Ellis – President and Chief Executive Officer | | 2017 | | 900,000 | | — |
| | 58,199,717 |
| | 1,035,000 | | 20,800 | | 60,155,517 | |
| | 2016 | | 900,000 | | — |
| | — |
| | 6,900,000 | | 25,900 | | 7,825,900 | |
David B. Rottino – Executive Vice President and Chief Financial Officer | | 2017 | | 500,000 | | — |
| | 24,734,849 |
| 1,000,000 | | 20,800 | | 26,255,649 | |
| | 2016 | | 500,000 | | — |
| | — |
| 2,700,000 | | 25,900 | | 3,225,900 | |
Arden L. Walker, Jr. – Executive Vice President and Chief Operating Officer | | 2017 | | 500,000 | | — |
| | 24,734,849 |
| 500,000 | | 20,800 | | 25,755,649 | |
| | 2016 | | 500,000 | | — |
| | — |
| 2,700,000 | | 25,900 | | 3,225,900 | |
| | | | | | | | | | | |
| |
(1) | The amounts in column (e) reflect the aggregate grant date fair value of (i) restricted stock units (“RSUs”) granted under the Linn Energy, Inc. 2017 Omnibus Incentive Plan (“Omnibus Plan”) and (ii) Class B Units (“Class B Units”) of Linn Energy Holdco LLC (“Holdco LLC”), which are intended to be “profits interests” for U.S. federal income tax purposes, granted under the Linn Energy Holdco LLC Incentive Interest Plan (“Holdco LLC Plan”), computed in accordance with FASB ASC Topic 718. Assumptions used in the calculation of these amounts are included in Note 15 to the Company’s audited consolidated financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2017. These calculations assume full achievement of all performance conditions applicable to the Class B Units granted under the Holdco LLC Plan, as such performance conditions have been satisfied as of the date of this submission. The value ultimately realized upon the actual vesting and settlement of the award(s) may or may not be equal to this determined value. The Company granted no share-based awards during the year ended December 31, 2016. In December 2016, the Company canceled all of its then-outstanding unvested restricted units, phantom units and performance unit awards, as well as its then-outstanding unit options, in each case, without payment of any consideration. |
| |
(2) | The amounts in column (f) for 2017 reflect cash bonus payments approved by the Compensation Committee for performance in 2017. The 2017 amounts were not actually paid until January 2018. The amounts in column (f) for 2016 reflect cash bonus payments under the Executive Incentive Plan (described below) that were paid in four installments in March 2016, July 2016, October 2016 and January 2017. |
| |
(3) | For each Named Officer, the amount shown in column (g) reflects (1) matching contributions allocated by the Company to such Named Officer pursuant to the Company’s Retirement Savings Plan and (2) $10,000 paid by the Company to such Named Officer for reimbursement of certain tax preparation expenses. |
| |
(4) | Distributions paid in respect of the Named Executive Officers’ respective vested Class B Units (which the Named Executive Officers converted into Class A-2 Units of Holdco LLC (“Class A-2 Units”) on July 31, 2017), in accordance with the terms of the Amended and Restated Limited Liability Company Agreement of Linn Energy Holdco LLC (the “Holdco LLC Agreement”), are not included in the Summary Compensation Table. In 2017, Mr. Ellis received $638,577, and each of Messrs. Walker and Rottino received $271,395, in the form of distributions in respect of their respective vested Class A-2 Units. |
Item 11. Executive Compensation - Continued
of certain performance metrics, and determinedNarrative Disclosure to discontinue any equity-based awards under the Predecessor’s Long Term Incentive Plan (“LTIP”). Furthermore, because the Company’s Plan provided that the Company’s pre-petition equity would be canceled as2017 Summary Compensation Table
As of the Effective Date, with no recovery for the Company’s previous unitholders, in December 2016, the Company canceled all unvested equity awards that itsentered into a new employment agreement with each of the Named Officers or former directors held related towhich governed the Company’s pre-petition units.terms of his compensation for 2017. Compensation for our Named Officers during 2016 was provided in accordance with the orders issued by the Bankruptcy Court.
The Company’s “Named Officers” for 2016 discussed below are:Employment Agreements
Mark E. Ellis, the Predecessor’s Chairman, President and Chief Executive Officer (President
The Company entered into a Second Amended and Chief Executive Officer asRestated Employment Agreement with Mr. Ellis, effective February 28, 2017, that provides for an annual base salary of not less than $900,000, subject to annual review and upward adjustment by the Board, in its sole discretion. Mr. Ellis is entitled to receive cash incentive compensation payable at the sole discretion of the Effective Date);Board. The Board may, in its discretion, set, in advance, an annual target bonus for Mr. Ellis, and for 2016, the Board set Mr. Ellis’s target bonus at 115% of his annual base salary. Mr. Ellis is eligible for long-term incentive compensation awards at the discretion of the Board. Mr. Ellis is entitled to participate in and to receive benefits as a senior executive under all of the Company’s employee benefit plans, programs and arrangements available to senior executives, subject to the eligibility criteria and other terms and conditions thereof, as such plans, programs and arrangements may be duly amended, terminated, approved or adopted by the Board from time to time.
Mr. Ellis’s employment agreement subjects him to assignment of business opportunities and perpetual confidentiality covenants, as well as non-solicit and non-compete obligations that restrict his ability to compete with the Company’s business and solicit the Company’s employees, clients and customers, both during employment and for one year following his termination, unless the termination is without Cause or for Good Reason and occurs within six months before or two years after a Change of Control (as defined in the agreement), in which case the post-termination non-compete and non-solicit obligations do not apply.
David B. Rottino, the Company’s Executive Vice President and Chief Financial Officer;Officer
The Company entered into a Third Amended and Restated Employment Agreement with Mr. Rottino, effective February 28, 2017, that provides for an annual base salary of not less than $500,000, subject to annual review and upward adjustment by the Board, in its sole discretion. Mr. Rottino is entitled to receive cash incentive compensation payable at the sole discretion of the Board. The Board may, in its discretion, set, in advance, an annual target bonus for Mr. Rottino, and for 2016, the Board set Mr. Rottino’s target bonus at 100% of his annual base salary. Mr. Rottino is eligible for long-term incentive compensation awards at the discretion of the Board. Mr. Rottino is entitled to participate in and to receive benefits as a senior executive under all of the Company’s employee benefit plans, programs and arrangements available to senior executives, subject to the eligibility criteria and other terms and conditions thereof, as such plans, programs and arrangements may be duly amended, terminated, approved or adopted by the Board from time to time.
Mr. Rottino’s employment agreement subjects him to assignment of business opportunities and perpetual confidentiality covenants, a non-compete obligation that restricts his ability to compete with the Company’s business during employment, and a non-solicitation obligation that restricts his ability to solicit the Company’s employees, clients and customers, both during employment and for one year following his termination, unless the termination is without Cause or for Good Reason and occurs within six months before or two years after a Change of Control (as defined in the agreement), in which case the post-termination non-solicit obligation does not apply.
Arden L. Walker, Jr., the Company’s Executive Vice President and Chief Operating Officer;
Jamin B. McNeil, the Company’s Senior Vice President – Houston Division Operations; and
Thomas E. Emmons, the Company’s Senior Vice President – Corporate Services.Officer
The Predecessor’s Compensation Committee
The Compensation Committee has overall responsibilityCompany entered into a Second Amended and Restated Employment Agreement with Mr. Walker, effective February 28, 2017, that provides for an annual base salary of not less than $500,000, subject to annual review and upward adjustment by the approval, evaluation and oversight of allBoard, in its sole discretion. Mr. Walker is entitled to receive cash incentive compensation payable at the Company’s compensation plans, policies and programs. The fundamental responsibilitiessole discretion of the Committee are to: (i) establishBoard. The Board may, in its discretion, set, in advance, an annual target bonus for Mr. Walker, and for 2016, the goals, objectives and policies relevant to the compensationBoard set Mr. Walker’s target bonus at 100% of the Company’s senior management, and evaluate performance in light of those goals to determine compensation levels, (ii) approve and administer the Company’shis annual base salary. Mr. Walker is eligible for long-term incentive compensation plans, (iii) set compensation levels and make awards under incentive compensation plans that are consistent with the Company’s compensation principles and the Company’s performance and (iv) review the Company’s disclosure relating to compensation. The Committee also has responsibility for evaluating compensation paid to the Company’s non-employee directors.
The Compensation Setting Process
Compensation Committee Meetings. The Compensation Committee holds regular quarterly meetings each year, which coincide with the Company’s quarterly Board meetings. It also holds additional meetings as required to carry out its duties. The Committee Chairman works with the Company’s Corporate Secretary to establish each meeting agenda. Given the restructuring process and subsequent constraints of the Bankruptcy Code, the Compensation Committee’s process in 2016 was different than prior years and was focused on crafting a new compensation program applicable to the specific circumstances of 2016.
Role of Compensation Consultant. The Committee’s Charter grants the Committee the sole and direct authority to retain and terminate compensation advisors and to approve their fees. All such advisors report directly to the Compensation Committee, and all assignments are directed by the Committee Chairman. Historically, the Committee had engaged Meridian Compensation Partners, LLC (“Meridian”) to assist the Committee in assessing and determining competitive compensation packages for the Company’s executive officers and did so again on a limited basis for 2016. Although Meridian reviewed data of companies that would have been considered the Company’s peers historically, a formal peer group was not selected and utilized for compensation purposes given the Company’s restructuring in 2016. Meridian provided general advice along with limited peer data to assist the Committee in setting appropriate targets for incentive compensation. In addition to its limited engagement of Meridian, the Committee also engaged A&M in 2016 to provide specific advice related to compensation practices during a restructuring process. A&M considered data from other companies similarly situated to the Company during 2016, including those involved in formal and informal restructuring processes. Neither Meridian nor A&M did any other work for the Company in 2016, other than testimony provided by A&M in court proceedings related to the Company’s bankruptcy filing. Prior to Meridian or A&M providing any services in 2016, the Committee assessed the independence of Meridian and A&M pursuant to SEC rules and concluded that no conflict of interest exists that would prevent either Meridian or A&M from independently representing the Committee.
Item 11. Executive Compensation - Continued
2016 Executive Compensation Components
For 2016, the principal components of compensation for Named Officers were:
Base salary;
Opportunities for quarterly cash incentive payments under the Incentive Plan; and
Other benefits available to all employees
Base Salary. The Company provides Named Officers and other employees with a base salary to provide them with a reasonable base level of monthly income relative to their role and responsibilities. In 2016, each of the Company’s Named Officers, other than Mr. McNeil and Mr. Emmons, had an employment agreement (the “Old Employment Agreements”) that provided for a minimum level of base salary and upward adjustments at the discretion of the Company’s Board; however, approvalBoard. Mr. Walker is entitled to participate in and to receive benefits as a senior executive under all of the Old Employment Agreements wasCompany’s employee benefit plans, programs and arrangements available to senior executives,
subject to the eligibility criteria and other terms and conditions thereof, as such plans, programs and arrangements may be duly amended, terminated, approved or adopted by the Board from time to time.
Mr. Walker’s employment agreement subjects him to assignment of business opportunities and perpetual confidentiality covenants, as well as non-solicit and non-compete obligations that restrict his ability to compete with the Company’s business and solicit the Company’s employees, clients and customers, both during employment and for one year following his termination, unless the termination is without Cause or for Good Reason and occurs within six months before or two years after a Change of Control (as defined in the agreement), in which case the post-termination non-compete and non-solicit obligations do not sought from the Bankruptcy Court so their applicability during 2016 is uncertain. New employment agreements were entered into with each of the Named Officers as of the Effective Date.apply.
2016 Executive Incentive Plan. As part of a comprehensive new compensation program for 2016 for all employees, executive officers and independent directors, the
The Predecessor’s Compensation Committee adopted the Executive Incentive Plan which was intended to enable Named Officers to earn cash compensation for 2016. Pursuant to the terms of the Executive Incentive Plan, the Committee assigned a target incentive award to each participant. The target incentive award was intended to approximate the sum of the participant’s (i) target bonus amount under the Predecessor’s historical Employee Incentive Compensation Program (“EICP”) and (ii) target annual long term incentive amount under the Predecessor’s LTIP,long term incentive plan, each as determined by the Committee using competitive market data. Payments under the Executive Incentive Plan were made quarterly based on achievement of performance goals established by the Committee, although the Committee had discretionincluding certain volume and cash cost metrics, at differing payout levels ranging from 50% to award (and actually did award) for the first quarter of 2016 only, the payment based solely on a participant’s continued employment with the Company through the end of such quarter.200%. The total amount of all payments under the Executive Incentive Plan maycould not exceed the amount of the participant’s target incentive award. The Executive Incentive Plan was submitted toapproved by the Bankruptcy Court and approved on August 1, 2016. Pursuant to the Bankruptcy Court’s order, all payments under the Executive Incentive Plan were permitted to be paid and not subject to disgorgement.
Generally,Linn Energy, Inc. 2017 Omnibus Incentive Plan
On February 28, 2017, the Company implemented the Omnibus Plan, pursuant to which employees, including the Named Officers, and consultants of the Company and its affiliates are eligible to receive stock options, restricted stock, performance awards, other stock-based awards and other cash-based awards. The Compensation Committee has broad authority under the Plan to, among other things: (i) select participants; (ii) determine the types of awards that participants receive and the number of shares that are subject to such awards; and (iii) establish the terms and conditions of awards, including the price (if any) to be paid for the shares or the award. For 2017, each of the Named Officers was granted awards of RSUs under the Omnibus Plan.
The RSUs are subject to time-based vesting and vested 25% on February 28, 2017 and an additional 25% on February 28, 2018 and will vest an additional 25% on each of February 28, 2019 and February 28, 2020, in each case, subject to the Named Officer’s continued employment with the Company through the applicable vesting date. Pursuant to each Named Officer’s employment agreement, all unvested RSUs accelerate in full upon a participant must be employedtermination of the Named Executive Officer’s employment (i) due to the Named Officer’s death or Disability, (ii) by the Company or other employing affiliate without Cause or (iii) by the Named Officer for Good Reason (as each such term is defined in his employment agreement), in each case, subject to the Named Officer’s timely execution and non-revocation of a release of claims in favor of the Company. Additionally, pursuant to the Named Officers’ respective RSU agreements, all unvested RSUs will become fully vested upon the consummation of a Change in Control (as defined in the RSU agreement).
Linn Energy Holdco LLC Incentive Interest Plan
On February 28, 2017, Holdco LLC implemented the Holdco LLC Plan, pursuant to which Holdco LLC granted Class B Units to the Named Officers and certain other members of its management, which Class B Units are intended to qualify as “profits interests” for U.S. federal income tax purposes.
The Class B Units are subject to a time condition and a performance condition (which is either a “base” performance condition or an “appreciation” performance condition). The Class B Units (both the “base” and “appreciation” performance Class B Units) time vested 25% on February 28, 2017 and an additional 25% on February 28, 2018 and will time vest an additional 25% on each of February 28, 2019 and February 28, 2020, in each case, subject to the Named Officer’s continued employment with the Company through the applicable paymentvesting date. Approximately 43% of the Class B Units are subject to the “base” performance condition, which is satisfied once the Equity Value (as defined in the Holdco LLC Plan) equals or
exceeds $1,606,138,731.60, and approximately 57% of the Class B Units are subject to the “appreciation” performance condition, which is satisfied once the Equity Value equals or exceeds $2,007,673,414.50, in each case, prior to the Named Officer’s termination of employment with the Company Group (as defined in the Holdco LLC Plan). As of the date in order to earn a quarterly paymenthereof, the performance conditions have been satisfied with respect to the target incentive award. However, if a participant was terminated involuntarily by the Company without “Cause,” terminated employment voluntarily due to “Good Reason” or was terminated due to death or “Disability” (with all capitalized terms defined in the Incentive Plan), then the participant would receive a pro-rated amount of the quarterly payment the participant would have earned for the quarter in which the termination occurs had the participant remained employed through the applicable payment date.
On February 2, 2016, the following target awards under the Incentive Plan were granted to the Company’s Named Officers:
|
| | |
Executive Officer | Title | Target Incentive Award |
Mark E. Ellis | Chairman, President and Chief Executive Officer | $6,900,000 |
David B. Rottino | Executive Vice President and Chief Financial Officer | $2,700,000 |
Arden L. Walker, Jr. | Executive Vice President and Chief Operating Officer | $2,700,000 |
Jamin B. McNeil | Senior Vice President – Houston Division Operations | $1,131,250 |
Thomas E. Emmons | Senior Vice President – Corporate Services | $1,108,750 |
The Predecessor’s Compensation Committee approved the following performance targets under the Incentive Plan and each quarter upon review of the Company’s financial and operating results, approved an award to each Named Officer at the Target payout.
Item 11. Executive Compensation - Continued
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Q2 | Q3 | Q4 |
| Metric (Equally Weighted) | Threshold (50% Payout) | Target (100% Payout) | Maximum (200% Payout) | Threshold (50% Payout) | Target (100% Payout) | Maximum (200% Payout) | Threshold (50% Payout) | Target (100% Payout) | Maximum (200% Payout) |
Volumes (MMcfe) | 90,477 |
| 93,275 |
| 96,073 |
| 92,685 |
| 95,552 |
| 98,419 |
| 90,512 |
| 93,311 |
| 96,110 |
|
Cash Costs LOE ($ Millions) | $ | 151,661 |
| $ | 144,439 |
| $ | 137,217 |
| $ | 141,939 |
| $ | 135,180 |
| $ | 128,421 |
| $ | 141,163 |
| $ | 134,441 |
| $ | 127,719 |
|
| LOE Cash Cost ($/Mcfe) | | | | 1.53 |
| 1.41 |
| 1.30 |
| 1.56 |
| 1.44 |
| 1.33 |
|
Cash Costs G&A ($ Millions) | $ | 58,137 |
| $ | 55,369 |
| $ | 52,601 |
| $ | 52,814 |
| $ | 50,229 |
| $ | 47,784 |
| $ | 51,191 |
| $ | 48,753 |
| $ | 46,315 |
|
“Say on Pay” VoteOfficers’ Class B Units.
In accordance with its New Charter Documents,the terms of the Holdco LLC Agreement, on July 31, 2017, the Named Executive Officers converted all of their Class B Units into Class A-2 Units. The Class A-2 Units that have not yet satisfied the time condition will continue to time vest as described above. The Class A-2 Units may be converted into Class A common stock of the Company at the election of the holder and in accordance with the terms of the Holdco LLC Agreement.
OUTSTANDING EQUITY AWARDS AT DECEMBER 31, 2017
|
| | | | | | | | |
| | | Incentive Interest Awards(1) | | Restricted Stock Unit Awards(2) |
| Name | | Number
of Units
That
Have Not
Vested
(#) | | Market
Value of
Units That
Have Not
Vested
($) (3) | | Number
of Units of Stock
That
Have Not
Vested
(#) | | Market
Value of
Units of Stock
That
Have Not
Vested
($) (3) |
Mark E. Ellis(a) | | 922,544 | | 37,132,396 | | 446,149 | | 17,957,497 |
David B. Rottino(b) | | 392,081 | | 15,781,260 | | 189,613 | | 7,631,923 |
Arden L. Walker, Jr.(b) | | 392,081 | | 15,781,260 | | 189,613 | | 7,631,923 |
| |
(1) | Amounts reflect Class B Units granted under the Holdco LLC Plan. On July 31, 2017, pursuant to the terms of the Holdco LLC Agreement, the Class B Units of Messrs. Ellis, Rottino and Walker were converted into 1,302,525, 553,572 and 553,572 Class A-2 Units, respectively. The number of Class A-2 Units outstanding is subject to adjustment from time to time in accordance with the terms of the Holdco LLC Agreement to maintain the economic equivalency between a Class A-2 Unit and a share of Class A common stock of the Company. |
| |
(2) | Amounts reflect RSUs awarded under the Omnibus Plan. |
| |
(3) | Based on the closing sales price of the Company’s Class A common stock on December 31, 2017 of $40.25 per share. |
| |
(a) | On February 28, 2017, Mr. Ellis was granted 594,866 RSUs and 1,388,021 Class B Units. Mr. Ellis’s RSUs vested 25% on February 28, 2017 and an additional 25% on February 28, 2018 and will vest an additional 25% on each of February 28, 2019 and February 28, 2020, in each case, subject to Mr. Ellis’s continued employment with the Company through the applicable vesting date. Mr. Ellis’s Class B Units are subject to a time condition and a performance condition (which has been satisfied). His Class B Units time vested 25% on February 28, 2017 and an additional 25% on February 28, 2018 and will time vest an additional 25% on each of February 28, 2019 and February 28, 2020, in each case, subject to Mr. Ellis’s continued employment with the Company through the applicable vesting date. Both the RSUs and the Class B Units are subject to acceleration under certain circumstances as described above. |
Mr. Ellis deferred until January 2018 the issuance of the Class A common stock of the Company underlying his initial tranche of vested RSUs. On July 31, 2017, in accordance with the terms of the Holdco LLC Agreement, all of Mr. Ellis’s Class B Units (both vested and unvested) were converted into 1,302,525 Class A-2 Units\. The unvested Class A-2 Units will not have an annual meetingcontinue to time vest as described above. The number of shareholdersClass A-2 Units held by Mr. Ellis is subject to adjustment from time to time in 2017; thus itaccordance with the Holdco LLC Agreement, and his Class A-2 Units are convertible into Class A common stock of the Company at any time upon his election, subject to any remaining vesting conditions.
| |
(b) | On February 28, 2017, each of Messrs. Rottino and Walker was granted 252,818 RSUs and 589,908 Class B Units. Each such Named Officer’s RSUs vested 25% on February 28, 2017 and an additional 25% on February 28, 2018 and will vest an additional 25% on each of February 28, 2019 and February 28, 2020, in each case, subject to such Named Officer’s continued employment with the Company through the applicable vesting date. Each such Named Officer’s Class B Units are subject to a time condition and a performance condition (which has been satisfied). Each such Named Officer’s Class B Units time vested 25% on February 28, 2017 and an additional 25% on February 28, 2018 and will time vest an additional 25% on each of February 28, 2019 and February 28, 2020, in each case, subject to such Named Officer’s continued employment with the Company through the applicable vesting date. Each such Named Officer’s RSUs and the Class B Units are subject to acceleration under certain circumstances as described above. |
Each of Messrs. Rottino and Walker deferred until January 2018 the issuance of the Class A common stock of the Company underlying his initial tranche of vested RSUs. On July 31, 2017, in accordance with the terms of the Holdco LLC Agreement, each such Named Officer converted all of his Class B Units into 553,572 Class A-2 Units. The unvested Class A-2 Units will continue to time vest as described above. The number of Class A-2 Units held by each of Messrs. Rottino and Walker is anticipated thatsubject to adjustment from time to time in accordance with the Company’s next advisory vote on its executive compensation program will beHoldco LLC Agreement, and his Class A-2 Units are convertible into Class A common stock of the Company’s 2018 annual meeting of shareholders.Company at any time upon his election, subject to any remaining vesting conditions.
Unit Ownership Guidelines
In 2015, due to continued low commodity prices and the resulting low unit price, the Committee suspended its minimum unit ownership guidelines for the Company’s executive officers and non-employee directors and that suspension continued through 2016. The New Compensation Committee has not yet considered imposing stock ownership guidelines given the Company’s recent emergence from bankruptcy.
Restrictions on Pledging and Derivative TransactionsPENSION BENEFITS AND NON-QUALIFIED DEFERRED COMPENSATION
The Company’s Policy on Trading in Securities prohibits Named Officers and directors from pledging any Company securities as collateraldoes not provide pension benefits, nor does it have a non-qualified deferred compensation plan for a loan, as well as prohibits any kind of derivative transaction involving Company securities.
Termination Arrangements and Change of Control Provisions
To attract and retain talented executives, the Committee has historically provided change of control and/or severance benefits to the Company’s Named Officers through either the Company’s Severance Plan, Change of Control Protection Plan (the “COC Plan”) or an individual employment agreement. However, the Bankruptcy Code requires approval by the Bankruptcy Court of any compensation plan that anticipates payments to “insiders” as that term is defined in the Bankruptcy Code. The COC Plan, to the extent it applied to “insiders,” would have required approval by the Bankruptcy Court and the Company elected not to submit the COC Plan to the Bankruptcy Court for approval. The Severance Plan was approved by the Bankruptcy Court only insofar as it applies to non-insiders. The Company also elected not to seek approval of the Old Employment Agreements; thus the applicability of the severance and change of control provisions of those agreements is uncertain. For purposes of the below tabular disclosures, the Company has assumed that neither the COC Plan, the Severance Plan, nor the Old Employment Agreements were in effect as of December 31, 2016 and that Named Officers were entitled only to the payments that would be due under the terms of the Incentive Plan (more fully described below).
Other Benefits
Perquisites
The Company believes in a simple, straightforward compensation program and as such, Named Officers have not in the past been provided unique perquisites or other personal benefits. The Compensation Committee periodically reviews the Company’s charitable contributions, the use of aircraft, vehicles and other potential perquisites that could result in personal benefits to the Company’s Named Officers. Other than as described below, consistent with the Compensation Committee’s
Item 11. Executive Compensation - Continued
general strategy, no perquisites or other personal benefits exceeded $10,000 for any of the Company’s Named Officers in 2016.
Tax Preparation
In an effort to provide for consistent personal income tax treatment among the Company’s Named Officers, the Predecessor’s Compensation Committee authorized reimbursement, in an amount up to $10,000 per year, for personal income tax preparation services for each of the Company’s Named Officers.
Retirement Savings Plan
employees. All employees, including the Company’s Named Officers, may participate in the Company’s Retirement Savings Plan or(which is the Company’s 401(k) Plan.plan). The Company provides this plan to help the Company’s employees save for retirement in a tax-efficient manner. Employees, including Named Officers, can contribute the maximum amount allowed by law. In 2016,2017, the Company made a matching contribution equal to 100% of the first 6%4% of eligible compensation contributed by the employee on a before-tax basis. As contributions are made throughout the year, plan participants become fully vested in the amounts contributed.
Nondiscriminatory Health and Welfare Benefits
All eligible employees, including the Company’s Named Officers, may participate in the Company’s health and welfare benefit programs, including medical, dental and vision care coverage, disability insurance and life insurance.
Tax and Accounting Implications
Code Section 162(m). Section 162(m) of the Code generally disallows a tax deduction to public companies for compensation over $1 million paid to the principal executive officer, the principal financial officer and the three additional most highly compensated executive officers of a company (other than the principal executive officer or the principal financial officer), as reported in that company’s most recent proxy statement. Qualifying performance-based compensation is not subject to the deduction limit if certain requirements are met. As part of its role, the Compensation Committee reviews and considers the deductibility of executive compensation; however, due to the Predecessor’s status as a publicly traded partnership for tax purposes rather than a publicly held corporation, the Predecessor believed that the provisions of Section 162(m) were not applicable to it. The Successor is evaluating the impact of 162(m) on its compensation practices since it emerged from bankruptcy as a C corporation.
Code Section 280G and Code Section 4999. The Company considers the impact of Sections 280G and 4999 of the Code in determining the Company’s post-termination compensation, and provides reimbursement for any excise tax, interest and penalties incurred if payments or benefits received due to a change of control would be subject to an excise tax under Section 4999 of the Code.
Code Section 409A. Section 409A of the Code provides that deferrals of compensation under a nonqualified deferred compensation plan or arrangement are to be included in an individual’s current gross income to the extent that such deferrals are not subject to a substantial risk of forfeiture and have not previously been included in the individual’s gross income, unless certain requirements are met. The Company structures its executive officer employment agreements, COC Plan and incentive plans, each to the extent they are subject to Section 409A, to be in compliance with Section 409A.
Accounting for Equity-Based Compensation. The Company recognizes expense for equity-based compensation over the requisite service period in an amount equal to the fair value of equity-based payments granted.
2017 Executive Compensation Elements
Compensation for the Company’s Named Officers for 2017 was established pursuant to the Plan. The primary elements include base salary, annual cash bonus and long-term equity incentives. In February 2017, Named Officers were awarded restricted stock units as well as certain profits interests in a subsidiary of the Company.
Item 11. Executive Compensation - Continued
COMPENSATION COMMITTEE REPORT
The New Compensation Committee has reviewed and discussed the Compensation Discussion and Analysis required by Item 402(b) of Regulation S-K with management and, based on such review and discussions, the New Compensation Committee recommended to the Company’s Board that the Compensation Discussion and Analysis be included in this Amended Filing.
|
| |
| Submitted By: |
| Compensation Committee
Andrew Taylor (Chair)
Matthew Bonanno
Philip Brown
Evan Lederman
Kevin Mahony
|
The New Compensation Committee was not responsible for establishing the 2016 compensation described in this filing. Compensation paid to Named Officers in 2016 was paid in accordance with applicable orders of the Bankruptcy Court. Notwithstanding anything to the contrary set forth in any of the Company’s previous or future filings under the Securities Act or the Exchange Act that might incorporate this Amended Filing or future filings with the SEC, in whole or in part, the preceding report shall not be deemed to be “soliciting material” or to be “filed” with the SEC or incorporated by reference into any filing except to the extent the foregoing report is specifically incorporated by reference therein.
2016 SUMMARY COMPENSATION TABLE
The following table sets forth certain information with respect to the compensation paid for the fiscal years ended December 31, 2016, 2015 and 2014 to the Company’s Chief Executive Officer, Chief Financial Officer and three other most highly compensated executive officers (collectively, the “Named Officers”):
|
| | | | | | | | | | | | | | | | | | | | | | | |
| (a) | | (b) | | (c) | | (d) | | (e) | | (f) | | (g) | | (h) | | (i) |
| Name & Principal Position | | Year | | Salary ($) | | Bonus ($) | | Unit Awards ($) (3) | | Option
Awards
($) (3) | | Non-Equity
Incentive Plan
Compensation
($) (4) | | All Other
Compensation
($) (5) | | Total ($) (6) |
Mark E. Ellis – | | 2016 | | 900,000 |
| | — |
| | — |
| | — |
| | 6,900,000 |
| | 25,900 |
| | 7,825,900 |
|
| Chairman, President and Chief Executive Officer | | 2015 | | 900,000 |
| | — |
| | 5,002,163 |
| | — |
| | 983,250 |
| | 25,900 |
| | 6,911,313 |
|
| | 2014 | | 900,000 |
| | — |
| | 7,586,711 |
| | — |
| | 1,191,000 |
| | 397,308 |
| | 10,075,019 |
|
David B. Rottino – | | 2016 | | 500,000 |
| | — |
| | — |
| | — |
| | 2,700,000 |
| | 25,900 |
| | 3,225,900 |
|
| Executive Vice President and Chief Financial Officer | | 2015 | | 500,000 |
| | — |
| | 1,731,506 |
| | — |
| | 427,500 |
| | 25,900 |
| | 2,684,906 |
|
| | 2014 | | 470,000 |
| | — |
| | 2,334,361 |
| | — |
| | 487,000 |
| | 25,600 |
| | 3,316,961 |
|
Arden L. Walker, Jr. – | | 2016 | | 500,000 |
| | — |
| | — |
| | — |
| | 2,700,000 |
| | 25,900 |
| | 3,225,900 |
|
| Executive Vice President and Chief Operating Officer | | 2015 | | 500,000 |
| | — |
| | 1,731,506 |
| | — |
| | 427,500 |
| | 25,900 |
| | 2,684,906 |
|
| | 2014 | | 500,000 |
| | — |
| | 2,451,056 |
| | — |
| | 518,000 |
| | 25,600 |
| | 3,494,656 |
|
Jamin B. McNeil – | | 2016 | | 375,000 |
| | — |
| | — |
| | — |
| | 1,131,250 |
| | 25,900 |
| | 1,532,150 |
|
Senior Vice President – Houston Division Operations (1) | | 2015 | | 375,000 |
| | — |
| | 654,182 |
| | — |
| | 267,188 |
| | 25,900 |
| | 1,322,270 |
|
| | 2014 | | 375,000 |
| | — |
| | 922,551 |
| | — |
| | 324,000 |
| | 25,600 |
| | 1,647,151 |
|
Thomas E. Emmons – | | 2016 | | 345,000 |
| | — |
| | — |
| | — |
| | 1,108,750 |
| | 25,900 |
| | 1,479,650 |
|
Senior Vice President – Corporate Services (2) | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | |
| |
(1)
| Mr. McNeil has been an employee of the Company since June 2007. Mr. McNeil became classified as a Named Officer during 2014. |
| |
(2)
| Mr. Emmons has been an employee of the Company since July 2007. Mr. Emmons became classified as a Named Officer during 2016. |
Item 11. Executive Compensation - Continued
| |
(3)
| The amounts in columns (e) and (f) reflect the aggregate grant date fair value of equity-based awards granted under the Predecessor’s LTIP, computed in accordance with FASB ASC Topic 718. The value ultimately realized upon the actual vesting of the award(s) or the exercise of the stock option(s) may or may not be equal to this determined value. The values in the “Unit Awards” column represent the grant date fair values for both restricted unit and performance unit awards (assuming performance at target). The performance unit awards were subject to market conditions. No performance units vested and no amounts were paid to settle such awards. The Company granted no share-based awards during the year ended December 31, 2016. In December 2016, the Company canceled all of its then-outstanding nonvested restricted units, phantom units and performance unit awards, as well as its then-outstanding unit options, without consideration given to the employees. There were no awards outstanding under the LTIP as of December 31, 2016. |
| |
(4)
| The amounts in column (g) for 2016 reflect cash payments under the Incentive Plan that were paid in four installments in March 2016, July 2016, October 2016 and January 2017. The amounts in column (g) for 2015 and 2014 reflect the cash EICP awards approved by the Predecessor’s Compensation Committee under the Predecessor’s EICP for performance. The 2015 amounts were not actually paid until January 2016 and the 2014 amounts were not actually paid until February 2015. |
| |
(5)
| For each Named Officer, the amount shown in column (h) reflects (1) matching contributions allocated by the Company to each of the Company’s Named Officers pursuant to the Retirement Savings Plan (which is more fully described under the heading “―Other Benefits”) and (2) $10,000 paid by the Company for reimbursement of certain tax preparation expenses. Mr. Ellis’ 2014 amount also includes approximately $371,708 paid by the Company for personal usage of company-leased aircraft. |
| |
(6)
| Distributions paid on issued, but unvested units pursuant to the equity awards are not included in the Summary Compensation Table because the fair value shown in column (e) reflects the value of distributions. Distributions, if any, were paid to the Company’s Named Officers at the same rate as all unitholders. Monthly distributions were paid by the Predecessor through September 2015. In October 2015, following the recommendation from management, the Predecessor’s Board determined to suspend payment of the Predecessor’s distribution. |
Distributions paid to Named Officers on unvested restricted units in 2016, 2015 and 2014 are shown below.
|
| | | | | | | |
| Named Officer | | 2016 ($) | | 2015 ($) | | 2014 ($) |
| Mark E. Ellis | | — |
| | 479,354 | | 936,404 |
| David B. Rottino | | — |
| | 154,279 | | 249,711 |
| Arden A. Walker, Jr. | | — |
| | 166,153 | | 334,990 |
| Jamin B. McNeil | | — |
| | 65,748 | | 132,290 |
| Thomas E. Emmons | | — |
| | | | |
Narrative Disclosure to the 2016 Summary Compensation Table
The Company did not seek Bankruptcy Court approval for the employment agreements described below for the Named Officers; thus the applicability of each during 2016 is uncertain. Named Officer compensation during 2016 was in accordance with the orders issued by the Bankruptcy Court. As of the Effective Date, the Company entered into a new employment agreement with each of the Named Officers.
2016 GRANTS OF PLAN-BASED AWARDS
The Company granted no plan-based equity awards during the year ended December 31, 2016. See Summary Compensation Table above for disclosure of cash payments under the Incentive Plan.
OUTSTANDING EQUITY AWARDS AT DECEMBER 31, 2016
In December 2016, the Company canceled all of its then-outstanding nonvested restricted units, phantom units and performance unit awards, as well as its then-outstanding unit options, without consideration given to the employees. There were no equity-based awards outstanding under the Predecessor’s LTIP as of December 31, 2016.
Item 11. Executive Compensation - Continued
2016 OPTION EXERCISES AND UNITS VESTED
|
| | | | | | | | | | |
| | | Option Awards | | Unit Awards |
| (a) | | (b) | | (c) | | (d) | | (e) |
| Name | | Number of Units
Acquired on Exercise (#) | | Value Realized on Exercise ($) | | Number of Units
Acquired on Vesting (#) | | Value Realized on Vesting ($) (1) |
Mark E. Ellis (2) | | — |
| | — |
| | 235,381 | | 245,706 |
David B. Rottino (3) | | — |
| | — |
| | 72,604 | | 77,040 |
Arden L. Walker, Jr. (4) | | — |
| | — |
| | 82,543 | | 85,868 |
Jamin B. McNeil (5) | | — |
| | — |
| | 31,644 | | 33,121 |
Thomas E. Emmons (6) | | — |
| | — |
| | 30,663 | | 32,258 |
| | | | | | | | | |
| |
(1)
| The value realized represents the total fair market value of the shares on the unit vesting date reported as earned compensation during 2016. |
| |
(2)
| Mr. Ellis vested and sold 68,271 units to satisfy statutory federal payroll tax withholding requirements. |
| |
(3)
| Mr. Rottino vested and sold 20,918 units to satisfy statutory federal payroll tax withholding requirements. |
| |
(4)
| Mr. Walker vested and sold 24,065 units to satisfy statutory federal payroll tax withholding requirements. |
| |
(5)
| Mr. McNeil vested and sold 9,042 units to satisfy statutory federal payroll tax withholding requirements. |
| |
(6)
| Mr. Emmons vested and sold 8,726 units to satisfy statutory federal payroll tax withholding requirements. |
PENSION BENEFITS
The Company does not provide pension benefits for the Company’s Named Officers or other employees. Retirement benefits are provided through the Retirement Savings Plan, as discussed previously.
NON-QUALIFIED DEFERRED COMPENSATION
The Company does not have a non-qualified deferred compensation plan. The Retirement Savings Plan is a 401(k) deferred compensation arrangement and a qualified plan under section 401(a) of the Code.
POTENTIAL PAYMENTS UPON TERMINATION OR CHANGE OF CONTROL
ChangeUpon any termination of control and/or severance benefits were historically provided toemployment with the Company’s Named Officers through either the Company’s Severance Plan, the COC Plan or an individual employment agreement. However, the Bankruptcy Code requires approval by the Bankruptcy Court of any compensation plan that anticipates payments to “insiders” as that term is defined in the Bankruptcy Code. The COC Plan, to the extent it applied to “insiders,” would have required approval by the Bankruptcy Court and the Company, elected not to submit the COC Plan to the Bankruptcy Court for approval. The Severance Plan was approved by the Bankruptcy Court only insofar as it applies to non-insiders. The Company also elected not to seek approval of the Old Employment Agreements; thus the applicability of the severance and change of control provisions of those agreements is uncertain. For purposes of the below tabular disclosures, the Company has assumed that neither the COC Plan, the Severance Plan, nor the Old Employment Agreements were in effect as of December 31, 2016 and that Named Officers were entitled only to the payments that would be due under the terms of the Incentive Plan.
Quantification of Payments on Termination
The chart below reflects the amount of compensation to each of the Company’s Named Officers is entitled under his Employment Agreement to receive: (i) his accrued but unpaid base salary as of the termination date, (ii) any unreimbursed business expenses incurred through the termination date, and (iii) any payments and benefits to which he may be entitled under any benefit plans, programs, or arrangements (collectively, the “Accrued Obligations”).
If Mr. Ellis’s employment with the Company is terminated by the Company without “cause” (and other than due to his death or disability) or by Mr. Ellis for “good reason” (each, a “Qualifying Termination”), in each case, not within the eventsix months preceding or the two years following a Change of termination of such officer’s employment pursuantControl, then in addition to the Incentive Plan. The amounts shown are calculated assuming that such termination was effective asAccrued Obligations and subject to his execution and non-revocation of December 31, 2016, and thus include amounts earned through such time (other than amounts payable pursuant to the Company’s Retirement Savings Plan) and are estimatesa general release of the amounts which wouldclaims, Mr. Ellis will be paid to the executives
Item 11. Executive Compensation - Continued
upon their termination. The actual amounts to be paid can only be determined at the time of the Named Officer’s actual separation from the Company.
|
| | | | | | | | | | | | | | | | | | |
| Name and Reason for Termination | | Severance Pay ($) | | Bonus ($) (1) | | Health Benefits ($) | | Early Vesting of Equity Awards ($) | | Estimated Tax Gross Up ($) (2) | | Total ($) |
| Mark E. Ellis | | | | | | | | | | | | |
| Without cause or good reason | | — |
| | 1,725,000 |
| | — |
| | — |
| | — |
| | 1,725,000 |
|
| Change of Control | | — |
| | 1,725,000 |
| | — |
| | — |
| | — |
| | 1,725,000 |
|
| Disability or Death | | — |
| | 1,725,000 |
| | — |
| | — |
| | — |
| | 1,725,000 |
|
| David B. Rottino | | | | | | | | | | | | |
| Without cause or good reason | | — |
| | 675,000 |
| | — |
| | — |
| | — |
| | 675,000 |
|
| Change of Control | | — |
| | 675,000 |
| | — |
| | — |
| | — |
| | 675,000 |
|
| Disability or Death | | — |
| | 675,000 |
| | — |
| | — |
| | — |
| | 675,000 |
|
| Arden L. Walker, Jr. | | | | | | | | | | | | |
| Without cause or good reason | | — |
| | 675,000 |
| | — |
| | — |
| | — |
| | 675,000 |
|
| Change of Control | | — |
| | 675,000 |
| | — |
| | — |
| | — |
| | 675,000 |
|
| Disability or Death | | — |
| | 675,000 |
| | — |
| | — |
| | — |
| | 675,000 |
|
| Jamin B. McNeil | | | | | | | | | | | | |
| Without cause or good reason | | — |
| | 282,813 |
| | — |
| | — |
| | — |
| | 282,813 |
|
| Change of Control | | — |
| | 282,813 |
| | — |
| | — |
| | — |
| | 282,813 |
|
| Disability or Death | | — |
| | 282,813 |
| | — |
| | — |
| | — |
| | 282,813 |
|
| Thomas E. Emmons | | | | | | | | | | | | |
| Without cause or good reason | | — |
| | 277,188 |
| | — |
| | — |
| | — |
| | 277,188 |
|
| Change of Control | | — |
| | 277,188 |
| | — |
| | — |
| | — |
| | 277,188 |
|
| Disability or Death | | — |
| | 277,188 |
| | — |
| | — |
| | — |
| | 277,188 |
|
| | | | | | | | | | | | | |
| |
(1)
(i) | The amounts shown above reflect payments under the Incentive Plan that were paid in January 2017. Under the Incentive Plan, if a Named Officer was terminated involuntarily by the Company without “Cause,” terminated employment voluntarily due to “Good Reason” or was terminated due to death or “Disability” (with all capitalized terms defined in the Incentive Plan), then the participant would receive a pro-rated amountA single lump sum payment (payable within 30 days of the quarterly paymentemployment termination date, “Cash Severance”) in an amount equal to two times the participant would have earned for the quarter in which the termination occurred had the participant remained employed through the applicable payment date.sum of: |
| |
(2)
a. | Using a hypotheticalhis base salary at the highest rate in effect at any time during the 36-month period immediately preceding the employment termination date (“Highest Base Salary”), plus |
| |
| (ii) | A pro-rated annual bonus with respect to the year of December 31, 2016,termination based on his target bonus (“Pro Rated Bonus”); |
| |
| (iii) | Any accrued but unpaid annual bonus for the Companyfiscal year prior to the year of termination (x) based on actual performance, if the Board has already finally determined that nonethe amount of such bonus as of the Company’s Named Officers would have “excess parachute payments”termination date, or (y) equal to his target bonus, if the Board has not finally determined the amount of such bonus as of the termination date (the “Unpaid Annual Bonus”); |
| |
| (iv) | The Company will also pay its portion of COBRA continuation coverage, as well as pay certain costs of continuing medical coverage for six months after the expiration of the maximum required period under COBRA; and |
| |
| (v) | accelerated vesting of all of Mr. Ellis’s outstanding and unvested long-term incentive awards. |
If Mr. Ellis’s Qualifying Termination occurs within the six-month period preceding or the two-year period following a Change of Control (as defined below), then he will receive the same payments and benefits set forth above, except that
| |
| 1) | the amount of his Cash Severance will increase to three times the sum of a) his Highest Base Salary plus b) the highest annual bonus that he was paid in the 36 months immediately preceding the Change of Control (“Highest |
Bonus Amount”), with such amount payable within 30 days of the employment termination date or, if the termination date precedes the Change of Control, within the 30 days following a Change of Control, if later; and
| |
| 2) | the period for continued coverage of medical benefits will be up to 18 months after the expiration of the maximum period required by COBRA. |
Mr. Ellis’s Employment Agreement provides for an Internal Revenue Code Section 280G “best-net” cutback, which would cause an automatic reduction in Mr. Ellis’ Change of Control severance payments and benefits in the event such reduction would result in Mr. Ellis receiving greater payments and benefits on an after-tax basis.
If Mr. Ellis’s employment with the Company is terminated due to his death or disability, then in addition to the Accrued Obligations, he will be entitled to: (i) the Pro-Rated Bonus; (ii) the Unpaid Annual Bonus, if any; and (iii) accelerated vesting of all of his outstanding and unvested long-term incentive awards.
Messrs. Walker’s and Rottino’s respective employment agreements provide for substantially similar benefits to Mr. Ellis upon termination due to death, disability, without cause or by the employee for good reason. If Mr. Rottino or Mr. Walker is terminated without cause or by the employee for good reason within the six-month period preceding or the two-year period following a Change of Control, he will be entitled to substantially the same benefits as Mr. Ellis, except (1) Cash Severance shall be 2.5 times the sum of his Highest Base Salary and Highest Bonus Amount and (2) the period for continued coverage of medical benefits will remain up to six months after the expiration of the maximum required period under COBRA.
The definition of “Change of Control,” for each of the Named Officers is the same. “Change of Control” means the first to occur of:
| |
| (i) | any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than Linn Energy, any trustee or other fiduciary holding securities under any employee benefit plan of Linn Energy, or any company owned, directly or indirectly, by the stockholders of Linn Energy in substantially the same proportions as their ownership of common stock of Linn Energy), becoming the beneficial owner (as defined in Section 280GRule 13d-3 under the Exchange Act), directly or indirectly, of securities of Linn Energy representing more than 50% of the Code; thus none wouldcombined voting power of Linn Energy’s then outstanding securities; |
| |
| (ii) | during any period of 24 consecutive calendar months, individuals who were directors of Linn Energy on the first day of such period (the “Incumbent Directors”) cease for any reason to constitute a majority of the Board; provided, however, that any individual becoming a director subsequent to the first day of such period whose election, or nomination for election, by Linn Energy’s stockholders was approved by a vote of at least two-thirds of the Incumbent Directors will be considered as though such individual were an Incumbent Director, but excluding, for purposes of this proviso, any such individual whose initial assumption of office occurs as a result of an actual or threatened proxy contest with respect to election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a “person” (as used in Section 13(d) of the Exchange Act), in each case, other than the Board, which individual, for the avoidance of doubt, shall not be deemed to be an Incumbent Director for purposes of this Section 6.4(c)(ii)), regardless of whether such individual was approved by a vote of at least two-thirds of the Incumbent Directors; |
| |
| (iii) | consummation of a reorganization, merger, consolidation or other business combination (any of the foregoing, a “Business Combination”) of Linn Energy or any direct or indirect subsidiary with any other corporation, in any case with respect to which Linn Energy voting securities outstanding immediately prior to such Business Combination do not, immediately following such Business Combination, continue to represent (either by remaining outstanding or being converted into voting securities of Linn Energy or any ultimate parent thereof) more than 50% of the then outstanding voting securities entitled to vote generally in the election of directors of Linn Energy (or its successor) or any ultimate parent thereof after the Business Combination; or |
| |
| (iv) | (A) a tax gross up.complete liquidation or dissolution of Linn Energy or (B) the consummation of a sale or disposition of all or substantially all of the assets of Linn Energy and its subsidiaries (on a consolidated basis) in one or a series of related transactions. |
| |
| (v) | For the avoidance of doubt, the restructuring of Linn Energy, LLC and certain of its affiliates under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas (Case No. 16-60040) (the “Reorganization”) will not constitute a “Change of Control.” |
DIRECTOR COMPENSATION
Historically, the Company has used a combination of cash and equity-based incentive compensation to attract and retain qualified candidates to serve on the Company’s Board. In setting director compensation, the Company considered the significant amount of time that directors expend in fulfilling their duties to the Company as well as the skill level required of membersAs of the Company’s Board.
Annual Retainer and Fees. In 2016, each non-employee directorEffective Date, the composition of the Predecessor received the following cash compensation for serving on the Predecessor’s Board:
Annual cash retainerBoard of $90,000 paid in four quarterly installments;
Annual committee chair fees of:
Item 11. Executive Compensation - Continued
| |
◦ | $15,000 for the Predecessor’s Audit Committee chair paid in four quarterly installments; |
| |
◦ | $10,000 for the Predecessor’s Compensation Committee chair paid in four quarterly installments; |
| |
◦ | $7,500 for the Predecessor’s Nominating and Governance Committee chair paid in four quarterly installments; and |
Annual LinnCo director fee of $15,000 (for directors serving on the boards of both LINN Energy and LinnCo) paid in four quarterly installments; and
Annual lead director fee of $10,000 paid in four quarterly installments.
Quarterly Cash Award in Lieu of Restricted Unit Grants. In January 2016, the Predecessor’s Compensation Committee approved a cash award of $161,500 to be paid in quarterly installments in lieu of the traditional equity grant to non-employee directors.
2016 DIRECTOR SUMMARY COMPENSATION TABLE
The table below summarizes the compensation the Company paid to its non-employee directors for the fiscal year ended December 31, 2016.
|
| |
Name | Fees Earned or Paid in Cash ($) |
David D. Dunlap | 273,500 |
Stephen J. Hadden | 269,500 |
Michael C. Linn | 260,500 |
Joseph P. McCoy | 294,250 |
Jeffrey C. Swoveland | 273,500 |
Mark E. Ellis,Directors was determined by the Company’s Presidentcharter documents, and Chief Executive Officer, isthe current Board does not included in this table as he was an employee in 2016 and thus received no additional compensation for his service as director. Mr. Ellis’ compensation is shown in the Summary Compensation Table above.
The Successor’s Board is not currently receivingreceive compensation from the Company.Company, other than reimbursement of business related expenses.
| |
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The following table sets forth, as of April 15, 2017,4, 2018, the number of units beneficially owned by: (i) each person who is known to the Company to beneficially own more than 5% of a class of LINN Energythe Company’s Class A Commoncommon stock; (ii) the current directors of the LINN Energy Board;directors; (iii) each named executive officer; and (iv) all current directors and executive officers of the Company as a group. The Company obtained certain information in the table from filings made with the SEC. Unless otherwise noted, each beneficial owner has sole voting power and sole investment power.
| |
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters - Continued |
| | | Name of Beneficial Owner | | Shares Beneficially Owned (1) | | Percentage of Shares Beneficially Owned | | Shares Beneficially Owned (1) | | Percentage of Shares Beneficially Owned |
| 5% Shareholders: | | | | | | |
Elliott funds (2) | | 17,292,322 |
| | 19.4% | | 15,794,132 |
| | 20.7% |
Fir Tree funds (3) | | 16,107,618 |
| | 18.1% | | 14,712,070 |
| | 19.3% |
York Capital funds (4) | | 10,363,461 |
| | 11.6% | | 8,452,360 |
| | 11.1% |
| Named Executive Officers and Directors: | | | | | | |
Mark E. Ellis (5)(6) | | 148,717 |
| | * | | 175,114 |
| | * |
David B. Rottino (7)(6) | | 63,205 |
| | * | | 75,881 |
| | * |
Arden L. Walker, Jr. (8)(6) | | 63,205 |
| | * | | 48,480 |
| | * |
Jamin B. McNeil (5)(9) | | 32,222 |
| | * | |
Thomas E. Emmons (5)(10) | | 32,222 |
| | * | |
Candice J. Wells (5)(11) | | 32,222 |
| | * | |
| Evan Lederman | | — |
| | * | | — |
| | * |
| Matthew Bonanno | | — |
| | * | | — |
| | * |
| Kevin Mahony | | — |
| | * | |
| Andrew Taylor | | — |
| | * | | — |
| | * |
| Philip Brown | | — |
| | * | | — |
| | * |
Executive Officers and Directors as a Group (11 persons) (5) | | 371,793 |
| | * | |
Executive Officers and Directors as a Group (10 persons) (5) | | | 399,738 |
| | * |
_________________
* Less than 1%. based on 76,422,401 shares of Class A Common Stock outstanding as of April 4, 2018.
| |
(1) | The amounts and percentages of common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power, which includes the power to vote or direct the voting of such security, or investment power, which includes the power to dispose of or to direct the disposition of such security. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities, and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest. The number of shares beneficially owned by a person includes shares of common stock underlying any derivative securities that are currently exercisable or vested or will be exercisable or vested within 60 days of April 15, 2017.5, 2018. The shares issuable under any such securities are treated as outstanding for computing the percentage ownership of the person holding these securities, but are not treated as outstanding for the purposes of computing the percentage ownership of any other person. |
| |
(2) | Consists of (i) 11,758,72326,513 shares held of record by Luxembourg Investment Company 162 S.à.r.l. (“Luxembourg”) and (ii) 5,533,599 shares held of recordowned by Elliott Associates, L.P. (“Elliott Associates”), (ii) 5,027,660 shares owned by The Liverpool Limited Partnership (“Liverpool”) and (iii) 10,739,959 shares owned by Spraberry Investments Inc. (“Spraberry,” and collectively with Elliot Associates and Liverpool, the “Elliot funds”). The sole limited partner of Liverpool is Elliott Associates. Spraberry is an indirect subsidiary of Elliott International, L.P. (“Elliott LP”). Elliott International L.P., a Cayman Islands limited partnership (“Elliott LP”), owns all of the shares of Luxembourg. Hambledon,Capital Advisors Inc., a Cayman Islands corporation controlled by Paul E. Singer, is the sole general partnerinvestment manager of Elliott LP (“Elliott GP”IM”). Each of and is regulated by the SEC as an investment advisor. Elliott LP, Mr. Singer and Elliott GPIM has voting and investment power with respect to the shares held by LuxembourgSpraberry and may be deemed to be the beneficial ownersowner thereof. The sole limited partner of Elliott LP is Elliott International Limited. There is no single shareholder of Elliott International Limited holding shares equal to 10% or more of its total capital. Each of Mr. Singer,Elliot Advisors GP LLC, Elliott Capital Advisors, L.P., a Delaware limited partnership controlled by Mr. Singer, and Elliott Special GP, LLC, a Delaware limited liability company controlled by Mr. Singer, is a general partner of Elliott Associates and is regulated by the SEC as an investment advisor. Each of Elliot Advisors GP LLC, Elliott Capital Advisors, L.P. and Elliott Special GP, LLC has shared voting and investment power with respect to the shares held by Elliott Associates and may be deemed to be the beneficial ownersowner thereof. The addressThere is no single limited partner of eachElliott Associates holding limited partnership interests equal to 10% or more of its total capital. Andrew Taylor, a member of the foregoing entities and Mr. Singer is c/oinvestment team of Elliott Management Corporation, 40 West 57th Street, New York, New York 10019.an affiliate of the Elliott funds, currently serves on the board of directors of the Company. |
| |
(3) | Consists of (i) 600,592548,558 shares held of recordowned by Fir Tree Capital Opportunity Master Fund III, L.P., (ii) 2,000,0061,826,728 shares held of recordowned by Fir Tree Capital Opportunity Master Fund, L.P., (iii) 10,914,5469,968,920 shares held of recordowned by Fir Tree E&P Holdings VI, LLC, (iv) 1,259,7311,150,589 shares owned by FT SOF IV Holdings, LLC and (v) 1,332,7431,217,275 shares owned by FT SOF V Holdings, LLC (collectively, the “Fir Tree funds”). Each ofFir Tree Capital Management LP (“FTCM”) (f/k/a Fir Tree Inc. (“Fir Tree”), is the investment manager for the foregoing entities, andFir Tree funds. Jeffrey Tannenbaum, David Sultan Managing Partnerand Clinton Biondo control FTCM. Each of Fir Tree,FTCM, Messrs. Tannenbaum, Sultan and Biondo has voting and iinvestment power with respect to the shares of Common Stock owned by the Fir Tree funds and may be deemed to be the beneficial owner of such shares. Evan S. Lederman is Chairman of the Company’s board of directors and a managing director of FTCM. Mr. Lederman does not have voting and investment power with respect to the shares of Common Stock owned by the Fir Tree funds in his capacity as managing director of FTCM. |
| |
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters - Continued |
nvestment power with respect to the shares owned by each of the Fir Tree funds and may be deemed to be beneficial owners thereof. The address of each of the foregoing entities and Mr. Sultan is c/o Fir Tree Inc., 55 West 46th Street, 29th Floor, New York, New York 10036.
| |
(4) | Consists of (i) 1,456,1301,272,896 shares held of recordowned by York Capital Management, L.P., (ii) 3,442,8002,788,317 shares held of recordowned by York Credit Opportunities Investments Master Fund, L.P., (iii) 3,093,0522,188,884 shares held of recordowned by York Credit Opportunities Fund, L.P., (iv) 2,025,5931,779,012 shares held of recordowned by York Multi-Strategy Master Fund, L.P., (v) 105,918109,603 shares held of recordowned by Exuma Capital, L.P., (vi) 278,587 shares owned by York Select Strategy Master Fund, L.P., (vi) 199,095 shares held of record by York Select, L.P. and (vii) 40,87335,061 shares held of recordowned by Jorvik Multi-Strategy Master Fund, L.P. (collectively, the “York Capital funds”). York Capital Management Global Advisors, LLC (“YCMGA”) is the senior managing member of the general partner of each of the York Capital funds. James G. Dinan is the chairman of, and controls, YCMGA. Each of YCMGA and Mr. Dinan has voting and investment power with respect to the shares owned by each of the York Capital funds and may be deemed to be beneficial owners thereof. The address of the York Capital funds and Mr. Dinan is 767 Fifth Avenue, 17th Floor, New York, New York 10153. |
chairman of, and controls, YCMGA. Each of YCMGA and Mr. Dinan has voting and investment power with respect to the shares owned by each of the York Capital funds and may be deemed to be beneficial owners thereof. Each of YCMGA and Mr. Dinan disclaim beneficial ownership of such shares except to the extent of their pecuniary interests therein. Matthew W. Bonanno, a partner of YCMGA, currently serves on the board of directors of the Company.
| |
(5) | The address of each beneficial owner is c/o Linn Energy, Inc., 600 Travis, Houston, Texas 77002. Represents restricted stock unit awards (“RSUs”) that vested upon the Effective Date. The respective recipients are entitled to receive the number of shares of common stock that correspond to the number of vested RSUs, less any shares of common stock withheld by the Company to satisfy the respective recipient’s tax obligations, on the earliest to occur of (i) the recipient’s Termination (as defined in the respective recipient’s RSU Award Agreement), (ii) the first anniversary of the Effective Date or (iii) a Change of Control (as defined in the respective recipient’s RSU Award Agreement). |
| |
(6) | Excludes shares of the Company’s Class A common stock issuable in the event Mr.any of Messrs. Ellis, Rottino and Walker exercises his right to convert 347,006 vestedhis Class BA-2 units in Linn Energy Holdco LLC (“Holdco LLC”) into shares of the Company’s Class A common stock at the conversion ratio and in accordance with conversion procedures set out in Annex I of the Limited Liability Company Operating Agreement of Holdco LLC (the “Holdco Operating Agreement”). |
| |
(7)
| Excludes shares of the Company’s Class A common stock issuable in the event Mr. Rottino exercises his right to convert 147,478 vested Class B units in Holdco LLC into shares of the Company’s Class A common stock at the conversion ratio and in accordance with conversion procedures set out in Annex I of the Holdco OperatingLLC Agreement. |
Securities Authorized for Issuance Under Equity Compensation Plans
The following table summarizes information about our equity compensation plans as of December 31, 2017:
|
| | | | | | | | | | | | | | |
| Plan Category | | Number of securities to be issued upon exercise of outstanding options, warrants, and rights | | | Weighted-average exercise price of outstanding options, warrants, and rights | | | Number of common shares remaining available for future issuance under equity compensation plans | |
Equity compensation plans not approved by security holders (1): | | | | | | | | | | | | |
| Linn Energy, Inc. 2017 Omnibus Incentive Plan | | | — |
| | | | — |
| | | | 2.8 million | |
| |
(8)
(1) | Excludes shares ofThe Company adopted the Omnibus Plan in February 2017 in connection with the Company’s Class A common stock issuableemergence from chapter 11 proceedings. Refer to Item 10 of this Amended Filing and Note 15 to the Company’s audited consolidated financial statements included in the event Mr. Walker exercises his right to convert 147,478 vested Class B units in Holdco LLC into shares ofCompany’s Annual Report on Form 10-K for the Company’s Class A common stock at the conversion ratio and in accordance with conversion procedures set out in Annex I of the Holdco Operating Agreement. |
| |
(9)
| Excludes shares of the Company’s Class A common stock issuable in the event Mr. McNeil exercises his right to convert 75,185 vested Class B units in Holdco LLC into shares of the Company’s Class A common stock at the conversion ratio and in accordance with conversion procedures set out in Annex I of the Holdco Operating Agreement. |
| |
(10)
| Excludes shares of the Company’s Class A common stock issuable in the event Mr. Emmons exercises his right to convert 75,185 vested Class B units in Holdco LLC into shares of the Company’s Class A common stock at the conversion ratio and in accordance with conversion procedures set out in Annex I of the Holdco Operating Agreement. |
| |
(11)
| Excludes shares of the Company’s Class A common stock issuable in the event Ms. Wells exercises her right to convert 75,185 vested Class B units in Holdco LLC into shares of the Company’s Class A common stock at the conversion ratio and in accordance with conversion procedures set out in Annex I of the Holdco Operating Agreement.year ended December 31, 2017 for additional information. |
| |
Item 13. | Item 13. Certain Relationships and Related Transactions, and Director Independence |
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In the ordinary course of the Company’s business, the Company purchases products or services from, or engages in other transactions with, various third parties. Occasionally, these transactions may involve entities that are affiliated with one or more members of the Company’s Board.
Review and Approval of Related Party Transactions
The Company reviews all relationships and transactions in which the Company and its directors and executive officers or their immediate family members are participants to determine whether such persons have a direct or indirect material interest. The Company has developed and implemented processes and controls to obtain information from its directors and executive officers with respect to related party transactions and for then determining, based on the facts and circumstances, whether the Company or a related party has a direct or indirect material interest in the transactions. As required under SEC rules, transactions that are determined to be directly or indirectly material to the Company or a related party are disclosed in the Company’s annual proxy statement. In addition, the Company’s Audit Committee or Board (if appropriate) reviews and approves or ratifies or disapproves any related party transaction that is required to be disclosed. In the course of its review of a disclosable related party transaction, consideration is given to:
the nature of the related party’s interest in the transaction;
the material terms of the transaction, including, without limitation, the amount and type of transaction;
the importance of the transaction to the related party;
the importance of the transaction to the Company;
whether the transaction would impair the judgment of a director or executive officer to act in the Company’s best interest; and
any other matters deemed appropriate.
Any director who is a related party with respect to a transaction under review may not participate in the deliberations or vote respecting approval or ratification of the transaction; provided, however, that such director may be counted in determining the presence of a quorum at the meeting where the transaction is considered.
Related Party Transactions
Mr. Dunlap, a member of the Predecessor’s Board, is the President and Chief Executive Officer of Superior, which provides certain oilfield services to LINN Energy. For the year ended December 31, 2016, the Company incurred expenditures of approximately $5 million related to services rendered by Superior and its subsidiaries. The Board determined for 2016 that LINN Energy’s relationship with Superior would not interfere with Mr. Dunlap’s exercise of his independent judgment in carrying out his responsibilities as a director of LINN Energy.Transactions. None
Indemnification of Officers and Directors
The Predecessor’s limited liability company agreement providedCompany’s Restated Certificate of Incorporation provides that the Company wouldwill generally indemnify officers and members of the Predecessor’s board of directorsBoard against all losses, claims, damages or similar events. Subject to any terms, conditions or restrictions set forth in the Predecessor’s limited liability company agreement, Section 18-108145 of the Delaware Limited Liability Company ActGeneral Corporation Law empowers a Delaware limited liability companycorporation to indemnify and hold harmless any member or manager or other person from and against all claims and demands whatsoever. The PredecessorCompany has also entered into individual indemnity agreements with each of the Company’s executive officers and directors which supplement the indemnification provisions in the Predecessor’s limited liability company agreement.Company’s Restated Certificate of Incorporation.
| |
Item 13. | Certain Relationships and Related Transactions, and Director Independence - Continued |
DIRECTOR INDEPENDENCE
The Predecessor’s Nominating Committee reviewed director independence on an annual basis and made a threshold determination as to the status of each director’s independence. After this initial determination was made, the Nominating Committee made a recommendation to the full Board, who then ultimately determined director independence. This subjective determination was made by considering all direct or indirect business relationships between each director (including his immediate family) and the Company, as well as relationships between the Company and charitable organizations with which the director was affiliated. For 2016, the full Board, upon recommendation by the Predecessor’s Nominating Committee, determined that Messrs. Dunlap, Hadden, Linn, McCoy and Swoveland qualified as “independent” in accordance with the published listing requirements of the NASDAQ Global Select Market (“NASDAQ”). The NASDAQ independence definition includes a series of objective tests, including that the director is not an employee of the Company and has not engaged in various types of business dealings with the Company. In addition, as further required by the NASDAQ rules, the Predecessor’s Nominating Committee made a subjective determination as to each independent director that no relationships existed which, in the opinion of the Predecessor’s Nominating Committee, would interfere with the exercise of his independent judgment in carrying out the responsibilities of a director. Mr. Ellis is not independent by virtue of his role as the Predecessor’s Chairman, President and Chief Executive Officer. During the Predecessor’s Board of Directors’ most recent review of independence, the Board specifically considered that Mr. Dunlap is the President and Chief Executive Officer of Superior, which provides certain oilfield services to the Company. For the year ended December 31, 2016, the Company incurred expenditures of approximately $5 million related to services rendered by Superior and its subsidiaries. The Predecessor’s Board then determined that LINN Energy’s relationship with Superior would not interfere with Mr. Dunlap’s exercise of his independent judgment in carrying out his responsibilities as a director of the Predecessor.
In addition, the members of the Predecessor’s Audit Committee each qualified as “independent” under standards established by the SEC for members of audit committees, and the audit committee included at least one member who is determined by the Predecessor’s Board to meet the qualifications of an “audit committee financial expert” in accordance with SEC rules. For 2016, Mr. McCoy was the independent director who had been determined to be an audit committee financial expert. This designation is a disclosure requirement of the SEC related to Mr. McCoy’s experience and understanding with respect to certain accounting and auditing matters. The designation does not impose on Mr. McCoy any duties, obligations or liability that are greater than are generally imposed on him as a member of the Audit Committee and Board, and his designation as an audit committee financial expert pursuant to this SEC requirement does not affect the duties, obligations or liability of any other member of the Audit Committee or Board.
Item 14. Principal Accounting Fees and Services
The following table presents fees for the audits of the Company’s annual consolidated financial statements for 20162017 and 20152016 and for other services provided by KPMG LLP.
|
| | | | | | | | |
| | | 2016 | | 2015 |
| Audit Fees | | $ | 1,700,000 |
| | $ | 1,700,000 |
|
| Audit-Related Fees | | 31,000 |
| | 478,000 |
|
| Tax Fees | | — |
| | — |
|
| All Other Fees | | — |
| | — |
|
| Total | | $ | 1,731,000 |
| | $ | 2,178,000 |
|
Item 14. Principal Accounting Fees and Services - Continued
|
| | | | | | | |
| | 2017 | | 2016 |
| Audit-Related Fees | 2,906,000 |
| | $ | 1,700,000 |
|
| Tax Fees | 79,299 |
| | 31,000 |
|
| All Other Fees | — |
| | — |
|
| Total | — |
| | — |
|
| | $ | 2,985,299 |
| | $ | 1,731,000 |
|
Audit fees are primarily for the audit of the Company’s consolidated financial statements included in the Form 10-K and the reviews of the Company’s consolidated financial statements included in the Form 10-Qs. Audit-related fees are primarily for consents, comfort letters and certain financial accounting consultation.consultations, including consultation related to the Company’s adoption of fresh start accounting, and consents. The Company incurred no tax-related services or other fees during the years ended December 31, 20162017 or 2015.2016.
Audit Committee Approval of Audit and Non-Audit Services
The Audit Committee pre-approves all audit and non-audit services to be provided to the Company by its independent public accountant in the upcoming year at the first meeting of each calendar year and at subsequent meetings as necessary. The non-audit services to be provided are specified and shall not exceed a specified dollar limit. During the course of a fiscal year, if additional non-audit services are identified, these services are presented to the Audit Committee for pre-approval. All of the services covered under the caption “Audit-Related Fees” were approved by the Predecessor’s Audit Committee and none were provided under the de minimis exception of Section 10A of the Exchange Act.
Part IV
Item 15. Exhibits and Financial Statement Schedules
(a) - 1. Financial Statements:
All financial statements are omitted for the reason that they are not required or the information is otherwise supplied in Item 8. “Financial Statements and Supplementary Data” in the Original Filing.
(a) - 2. Financial Statement Schedules:
All schedules are omitted for the reason that they are not required or the information is otherwise supplied in Item 8. “Financial Statements and Supplementary Data” in the Original Filing.
(a) - 3. Exhibits:
The exhibits required to be filed by this Item 15 are set forth in the “Index to Exhibits” accompanying this Amended Filing.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
|
| | |
| | LINN ENERGY, INC. |
| | | |
| | | |
Date: April 28, 201718, 2018 | By: | /s/ Mark E. Ellis |
| | | Mark E. Ellis President and Chief Executive Officer |
| | | |
| | | |
Date: April 28, 201718, 2018 | By: | /s/ David B. Rottino |
| | | David B. Rottino Executive Vice President and Chief Financial Officer |
| | | |
| | | |
Date: April 28, 201718, 2018 | By: | /s/ Darren R. Schluter |
| | | Darren R. Schluter Vice President and Controller (Duly Authorized Officer and Principal Accounting Officer) |
Supplemental Information to be Furnished With Reports Filed Pursuant to Section 15(d) of the Act by Registrants Which Have Not Registered Securities Pursuant to Section 12 of the Act
No annual report, proxy statement, form of proxy, or other proxy soliciting material has been sent to the registrant’s security holders. The registrant undertakes to furnish to the Securities and Exchange Commission any annual report or proxy material which it delivers to security holders in connection with an annual meeting.
|
| | |
| Exhibit Number | | Description |
| — | |
3.1 | — | |
| — | Purchase and Sale Agreement, dated May 23, 2017, by and among Linn Energy Holdings, LLC, Linn Operating, LLC, Linn Midstream, LLC and Berry Petroleum Company, LLC (incorporated by reference to Exhibit 2.1 to Current Report on Form 8-K filed on May 30, 2017) |
| — | |
| — | First Amendment, dated June 30, 2017, to Purchase and Sale Agreement, dated May 25, 2017, by and between Linn Energy Holdings, LLC, Linn Operating, LLC and Denbury Onshore, LLC (incorporated by reference to Exhibit 2.4 to Quarterly Report on Form 10-Q filed on August 3, 2017) |
| — | |
| — | First Amendment, dated July 10, 2017, to Purchase and Sale Agreement, dated June 1, 2017, by and between Linn Energy Holdings, LLC, Linn Operating, LLC, Linn Midstream, LLC and Bridge Energy LLC (incorporated by reference to Exhibit 2.6 to Quarterly Report on Form 10-Q filed on August 3, 2017) |
| — | |
| — | First Amendment, dated October 12, 2017, to Purchase and Sale Agreement, dated October 3, 2017, by and between Linn Energy Holdings, LLC, Linn Operating, LLC and Washakie Exaro Opportunities, LLC |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
Index to Exhibits - Continued
|
| | |
| Exhibit Number | | Description |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | Transition Services and Separation Agreement, dated as of February 28, 2017, by and between Linn Energy, LLC, LinnCo, LLC, and certain subsidiaries of Linn Energy, Inc. party thereto and Berry Petroleum Company, LLC (incorporated by reference to Exhibit 10.7 to Current Report on Form 8-K filed on March 3, 2017) |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
| — | |
Index to Exhibits - Continued
|
| | |
| Exhibit Number | | Description |
| — | |
| — | |
| — | First Amendment to Contribution Agreement, dated August 31, 2017, to Contribution Agreement, dated June 27, 2017, by and among Linn Energy Holdings, LLC, Linn Operating, LLC, Citizen Energy II, LLC and Roan Resources LLC |
| — | Second Amendment to Contribution Agreement, dated October 31, 2017, to Contribution Agreement, dated June 27, 2017, by and among Roan Holdco LLC, Linn Operating, LLC, Roan Holdings, LLC and Roan Resources LLC |
| — | Third Amendment to Contribution Agreement, dated November 29, 2017, to Contribution Agreement, dated June 27, 2017, by and among Linn Energy Holdings, LLC, Linn Operating, LLC, Citizen Energy II, LLC and Roan Resources LLC |
| — | |
| — | Credit Agreement dated as of February 28, 2017, among Linn Energy Holdco II LLC, as borrower, Linn Energy Holdco LLC, as parent, Linn Energy, Inc. as holdings, subsidiary guarantors party thereto, Wells Fargo Bank, National Association, as administrative agent and the lenders party thereto (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed on March 3, 2017) |
10.2 | — | Registration RightsFirst Amendment and Consent to Credit Agreement dated as of May 31, 2017, to Credit Agreement and Security Agreement dated as of February 28, 2017, among Linn Energy Holdco II LLC, as borrower, Linn Energy Holdco LLC, as parent, Linn Energy, Inc., the subsidiary guarantors party thereto, Wells Fargo Bank, National Association, as administrative agent and the lenders party thereto (incorporated by reference to Exhibit 10.1 to Quarterly Report on Form 10-Q filed on August 3, 2017) |
| — | Credit Agreement, dated as of August 4, 2017, among Linn Energy Holdco II LLC, as borrower, Linn Energy Holdco LLC, as parent, Linn Energy, Inc. as holdings, Royal Bank of Canada, as administrative agent, Citibank, N.A., as syndication agent, Barclays Bank PLC, JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc. and PNC Bank National Association, as co-documentation agents, and the holderslenders party thereto (incorporated by reference to Exhibit 10.26 to Registration Statement on Form S-1 filed on September 26, 2017) |
| — | First Amendment to Credit Agreement, dated as of September 29, 2017, to Credit Agreement dated as of August 4, 2017, among Linn Energy Holdco II LLC, as borrower, Linn Energy Holdco LLC, as parent, Linn Energy, Inc. as holdings, Royal Bank of Canada, as administrative agent, Citibank, N.A., as syndication agent, Barclays Bank PLC, JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc. and PNC Bank National Association, as co-documentation agents, and the lenders party thereto (incorporated by reference to Exhibit 10.2 to CurrentQuarterly Report on Form 8-K10-Q filed on March 3,November 14, 2017) |
10.3* | — | Linn Energy, Inc. 2017 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.1 to Registration Statement on Form S-8 filed on February 28, 2017) |
10.4* | — | Form |
10.5* | — | Form |
10.6* ** | — | Linn Energy Holdco LLC Incentive Interest Plan |
10.7* ** | — | Form |
10.8* ** | — | Form |
10.9 | — | Membership Interest Purchase Agreement, dated as |
10.10 | — | Transition Services and Separation Agreement, dated as |
10.11 | — | Joint Operating Agreement, dated February 28, 2017, between Linn Operating, Inc., as operator, and Berry Petroleum Company, LLC, as non-operator (Hugoton) (incorporated by reference to Exhibit 10.8 to Current Report on Form 8-K filed on March 3, 2017) |
10.12 | — | Joint Operating Agreement, dated February 28, 2017, between Berry Petroleum Company, LLC, as operator, and Linn Energy Holdings, LLC, as non-operator (Hill) (incorporated by reference to Exhibit 10.9 to Current Report on Form 8-K filed on March 3, 2017) |
10.13* | — | Form of Indemnity Agreement between Linn Energy, Inc. and the directors and officers of Linn Energy, Inc. (incorporated by reference to Exhibit 10.4 to Registration Statement on Form S-8 filed on February 28, 2017)Chief Financial Officer |
Index to Exhibits - Continued
|
| | |
| Exhibit Number | | Description |
10.14* | — | Second Amended and Restated Employment Agreement of Mark E. Ellis, dated February 28, 2017 (incorporated by reference to Exhibit 10.11 to Current Report on Form 8-K filed on March 3, 2017) |
10.15* | — | Third Amended and Restated Employment Agreement of David B. Rottino, dated February 28, 2017 (incorporated by reference to Exhibit 10.12 to Current Report on Form 8-K filed on March 3, 2017) |
10.16* | — | Second Amended and Restated Employment Agreement of Arden L. Walker, Jr., dated February 28, 2017 (incorporated by reference to Exhibit 10.13 to Current Report on Form 8-K filed on March 3, 2017) |
10.17* | — | Employment Agreement of Jamin B. McNeil, dated February 28, 2017 (incorporated by reference to Exhibit 10.14 to Current Report on Form 8-K filed on March 3, 2017) |
10.18* | — | Employment Agreement of Thomas E. Emmons, dated February 28, 2017 (incorporated by reference to Exhibit 10.15 to Current Report on Form 8-K filed on March 3, 2017) |
10.19* | — | Employment Agreement of Candice J. Wells, dated February 28, 2017 (incorporated by reference to Exhibit 10.16 to Current Report on Form 8-K filed on March 3, 2017) |
10.20* | — | Linn Energy, Inc. Severance Plan, dated February 28, 2017 |
12.1** | — | Computation of Ratio of Earnings to Fixed Charges |
21.1** | — | List of Significant Subsidiaries |
23.1** | — | Consent of KPMG LLP |
23.2** | — | Consent of DeGolyer and MacNaughton |
31.1** | — | |
31.2* | — | |
31.3* | — | Section 302 Certification of Chief Executive Officer |
31.4*** | — | Section 302 Certification of Chief Financial Officer |
32.1** | — | Section 906 Certification of Chief Executive Officer |
32.2** | — | Section 906 Certification of Chief Financial Officer |
99.1** | — | 2016 |
| — | |
| 101.INS** | — | XBRL Instance Document |
| 101.SCH** | — | XBRL Taxonomy Extension Schema Document |
| 101.CAL** | — | XBRL Taxonomy Extension Calculation Linkbase Document |
| 101.DEF** | — | XBRL Taxonomy Extension Definition Linkbase Document |
| 101.LAB** | — | XBRL Taxonomy Extension Label Linkbase Document |
| 101.PRE** | — | XBRL Taxonomy Extension Presentation Linkbase Document |
| |
| * | Management Contract or Compensatory Plan or Arrangement required to be filed as an Exhibit hereto pursuant to Item 601 of Regulation S-K. |
| |
| ** | Previously filed or furnished with the Company’s Annual Report on Form 10-K for the year ended December 31, 2016,2017, filed on March 23, 2017.February 27, 2018. |
*** Filed herewith.
