Attached files
| file | filename |
|---|---|
| EX-1.1 - Energy XXI Ltd | v168687_ex1-1.htm |
| EX-1.2 - Energy XXI Ltd | v168687_ex1-2.htm |
| EX-3.1 - Energy XXI Ltd | v168687_ex3-1.htm |
| EX-5.2 - Energy XXI Ltd | v168687_ex5-2.htm |
| EX-5.1 - Energy XXI Ltd | v168687_ex5-1.htm |
| EX-99.1 - Energy XXI Ltd | v168687_ex99-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of The Securities Exchange Act of
1934
Date of
Report (Date of earliest event reported): December 8, 2009
Energy
XXI (Bermuda) Limited
(Exact
name of registrant as specified in its charter)
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BERMUDA
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001-33628
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98-0499286
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(State
or other jurisdiction of
incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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Canon’s
Court, 22 Victoria Street, P.O. Box HM
1179,
Hamilton HM EX, Bermuda
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code (441) 295-2244
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
Common
Stock Underwriting Agreement
On December 8, 2009, Energy XXI
(Bermuda) Limited (the “Company”) entered into an Underwriting Agreement (the
“Common Stock Underwriting Agreement”) with UBS Securities LLC and Credit Suisse
Securities (USA) LLC, as joint book-running managers and representatives of the
several underwriters named therein (the “Common Stock Underwriters”), pursuant
to which the Company agreed to sell 90,000,000 shares (the “Firm Common Shares”)
of the Company’s common stock, par value $0.001 per share (the “Common Shares”),
at a price of $1.90 per Common Share ($1.80 per Common Share, net of
underwriting discount). Pursuant to the Common Stock Underwriting
Agreement, the Company granted the Common Stock Underwriters a 30-day option to
purchase up to an additional 13,500,000 Common Shares on the same terms as the
Firm Common Shares to cover over-allotments, if any. The offer and
sale of the Common Shares have been registered under the Securities Act of 1933,
as amended (the “Securities Act”), pursuant to a Registration Statement on Form
S-3 (Registration No. 333-148713) of the Company, as supplemented by the
Prospectus Supplement dated December 8, 2009 relating to the Common Shares,
filed with the Securities and Exchange Commission (“Commission”) pursuant to
Rule 424(b) of the Securities Act on December 9, 2009. The Company
expects the transaction to close on December 14, 2009.
The Common Stock Underwriting Agreement
contains customary representations and warranties of the parties and
indemnification and contribution provisions under which the Company, on the one
hand, and the Common Stock Underwriters, on the other, have agreed to indemnify
each other against certain liabilities, including liabilities under the
Securities Act.
The summary of the Common Stock
Underwriting Agreement set forth in this Section 1.01 does not purport to be
complete and is qualified by reference to such agreement, which is filed as
Exhibit 1.1 hereto and incorporated herein by reference.
Preferred
Stock Underwriting Agreement
On December 8, 2009, Energy XXI
(Bermuda) Limited (the “Company”) entered into an Underwriting Agreement (the
“Preferred Stock Underwriting Agreement”) with UBS Securities LLC and Credit
Suisse Securities (USA) LLC, as joint book-running managers (the “Preferred
Stock Underwriters”), pursuant to which the Company agreed to sell 1,000,000
shares (the “Firm Preferred Shares”) of the Company’s 7.25% perpetual
convertible preferred stock, par value $0.001 per share (the “Preferred
Shares”), at a price of $100 per Preferred Share ($97.00 per Preferred Share,
net of underwriting discount). Pursuant to the Preferred Stock
Underwriting Agreement, the Company granted the Preferred Stock Underwriters a
30-day option to purchase up to an additional 100,000 Preferred Shares on the
same terms as the Firm Preferred Shares to cover over-allotments, if
any. The offer and sale of the Preferred Shares have been registered
under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to
a Registration Statement on Form S-3 (Registration No. 333-148713) of the
Company, as supplemented by the Prospectus Supplement dated December 8, 2009
relating to the Preferred Shares, filed with the Securities and Exchange
Commission (“Commission”) pursuant to Rule 424(b) of the Securities Act on
December 9, 2009. The Company expects the transaction to close on
December 14, 2009.
The Preferred Stock Underwriting
Agreement contains customary representations and warranties of the parties and
indemnification and contribution provisions under which the Company, on the one
hand, and the Preferred Stock Underwriters, on the other, have agreed to
indemnify each other against certain liabilities, including liabilities under
the Securities Act.
The
summary of the Preferred Stock Underwriting Agreement set forth in this Section
1.01 does not purport to be complete and is qualified by reference to such
agreement, which is filed as Exhibit 1.2 hereto and incorporated herein by
reference.
Item
3.03. Material Modification to Rights of Security
Holders.
The matters described below under Item
5.03 are incorporated herein by reference.
2
Item
5.03. Amendment to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
In connection with the offering of the
Preferred Shares, as described in Item 1.01 above, on December 8, 2009, the
Company adopted a Certificate of Designation to designate up to 1,100,000 of the
Company’s 7.25% convertible perpetual preferred stock, par value $0.001 per
share (the “Convertible Preferred Stock”). The following is a summary
of the material terms of the Preferred Stock set forth in the Certificate of
Designations.
The
annual dividend on each share of Convertible Preferred Stock is $7.25 and is
payable in cash, common stock or a combination thereof at the Company’s
election, in arrears, on each March 15, June 15, September 15 and December 15,
commencing on March 15, 2010, to holders of record on each March 1, June 1,
September 1 and December 1. If dividends are paid in common stock,
such shares will be valued at 95% of the Daily VWAP for the ten days preceding
the second trading day immediately prior to the record date for such
dividend. In addition, if dividends are paid in common stock, such
shares will be delivered to the dividend agent and the Company will instruct
such agent to either (1) sell such shares for cash on behalf of the holders of
the Convertible Preferred Stock and deliver the net proceeds to such holders,
less any withholding taxes, or (2) deliver such shares to or for the account of
such holders less any shares required to be sold for withholding
taxes.
The
Convertible Preferred Stock is not redeemable by the Company at any time. Each
share of Convertible Preferred Stock has a liquidation preference of $100 per
share and is convertible, at the holder’s option at any time, initially into
43.8596 shares (the “Conversion Rate”) of the Company’s common stock (equal to
an initial conversion price of $2.28 per share (the “Conversion Price”)) subject
in each case to specified adjustments as set forth in the Certificate of
Designations. Based on the initial Conversion Rate, 48,245,560 shares of common
stock would be issuable upon conversion of all 1,100,000 shares of the
Convertible Preferred Stock.
On or
after December 15, 2014, the Company may at its option cause all outstanding
shares of Convertible Preferred Stock to be automatically converted into common
stock at the then-prevailing Conversion Rate, if the Daily VWAP of the Company’s
common stock equals or exceeds 150% of the then-prevailing Conversion Price for
at least 20 trading days in a period of 30 consecutive trading
days.
If a
holder converts its Convertible Preferred Stock at any time beginning at the
opening of business on the trading day immediately following the effective date
of a transaction that constitutes a fundamental change and ending at the close
of business on the 30th trading day immediately following such effective date,
the holder will automatically receive a number of shares of the Company’s common
stock equal to the greater of:
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·
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the
sum of (i) a number of shares of the Company’s common stock based on the
prevailing Conversion Rate and (ii) the make-whole premium, if any, as
identified in the chart below; and
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·
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a
number of shares of the Company’s common stock equal to the lesser of (i)
the liquidation preference divided by the Market Value of the Company’s
common stock on the effective date of a fundamental change and
(ii) 105.2632 (subject to
adjustment).
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In
addition, each holder will upon conversion in connection with a fundamental
change have the right to receive an amount equal to all accrued, cumulated and
unpaid dividends on the Convertible Preferred Stock, paid in cash, common stock
or a combination thereof.
The
following table sets forth the stock price paid, or deemed paid, per share of
the Company’s common stock in a transaction that constitutes the fundamental
change, the effective date and the make-whole premium (expressed as a number of
additional shares of the Company’s common stock that will be added to the
Conversion Rate ) to be paid upon a conversion in connection with a fundamental
change:
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Stock
Price ($)1
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||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Effective
Date
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$ | 1.90 | $ | 2.25 | $ | 2.50 | $ | 2.75 | $ | 3.00 | $ | 3.25 | $ | 3.50 | $ | 3.75 | $ | 4.00 | $ | 4.50 | $ | 5.00 | $ | 6.00 | $ | 7.00 | $ | 8.00 | $ | 9.00 | $ | 10.00 | ||||||||||||||||||||||||||||||||
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December
14, 2009...
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8.7720 | 7.6995 | 6.4220 | 5.4109 | 4.5952 | 3.9269 | 3.3722 | 2.9067 | 2.5125 | 1.8870 | 1.4206 | 0.7952 | 0.4232 | 0.2022 | 0.0765 | 0.0145 | ||||||||||||||||||||||||||||||||||||||||||||||||
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December
15, 2010..
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8.7720 | 7.0027 | 5.8084 | 4.8698 | 4.1175 | 3.5045 | 2.9982 | 2.5752 | 2.2183 | 1.6547 | 1.2368 | 0.6801 | 0.3521 | 0.1600 | 0.0536 | 0.0032 | ||||||||||||||||||||||||||||||||||||||||||||||||
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December
15, 2011..
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8.7720 | 6.2838 | 5.1618 | 4.2909 | 3.6008 | 3.0446 | 2.5896 | 2.2125 | 1.8967 | 1.4021 | 1.0387 | 0.5592 | 0.2801 | 0.1195 | 0.0339 | 0.0023 | ||||||||||||||||||||||||||||||||||||||||||||||||
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December
15, 2012..
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8.7720 | 5.5230 | 4.4467 | 3.6297 | 2.9973 | 2.4992 | 2.1004 | 1.7765 | 1.5098 | 1.1008 | 0.8065 | 0.4248 | 0.2058 | 0.0820 | 0.0189 | 0.0009 | ||||||||||||||||||||||||||||||||||||||||||||||||
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December
15, 2013..
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8.7720 | 4.6819 | 3.5806 | 2.7736 | 2.1781 | 1.7348 | 1.4010 | 1.1462 | 0.9484 | 0.6666 | 0.4783 | 0.2457 | 0.1138 | 0.0395 | 0.0043 | 0.0023 | ||||||||||||||||||||||||||||||||||||||||||||||||
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December
15, 2014
and
thereafter……….
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8.7720 | 4.1474 | 2.8287 | 1.7739 | 0.9365 | 0.3015 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||||||||
3
(1) The
stock prices set forth in the table will be adjusted as of any date on which the
Conversion Rate of the Convertible Preferred Stock is adjusted by
multiplying the applicable price in effect immediately before the adjustment by
a fraction:
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·
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whose
numerator is the Conversion Rate immediately before the adjustment;
and
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·
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whose
denominator is the adjusted Conversion
Rate.
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In
addition, the number of additional shares in the table will be adjusted at the
same time, in the same manner in which, and for the same events for which, we
must adjust the Conversion Rate.
Except as
required by the law of Bermuda or the Company’s Memorandum of Association and
the Certificate of Designation, or for the authorization of any class of the
Company’s capital stock senior to the Convertible Preferred Stock, holders of
the Convertible Preferred Stock will have no voting rights unless dividends are
in arrears and unpaid for six or more quarterly periods. Until such arrearage is
paid in full, the holders will be entitled to elect two directors and the number
of directors on the Company’s board of directors will increase by that same
number.
No
dividends may be declared and paid upon, or set apart for payment upon, the
Company’s common stock or any other junior stock unless all
accumulated and unpaid dividends have been or contemporaneously are declared and
paid on the Convertible Preferred Stock for all dividend payment periods
terminating on or prior to the date of such declaration or payment.
The
foregoing description of the Certificate of Designations, which sets the terms
of the Convertible Preferred Stock, does not purport to be complete and is
qualified in its entirety by reference to the full text of the Certificate of
Designations, a copy of which is filed herewith as Exhibit 3.1 and is
incorporated herein by reference.
Item
7.01. Regulation FD Disclosure.
On December 9, 2009, the Company issued
a press release announcing that it had priced the concurrent offerings of
90,000,000 Common Shares and 1,000,000 Preferred Shares. A copy of
the press release is furnished as Exhibit 99.1 hereto and is incorporated herein
by reference.
In accordance with General Instruction
B.2 of Form 8-K, the information set forth in the attached Exhibit 99.1 is
deemed to be “furnished” and shall not be deemed to be “filed” for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit
Number
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Description
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1.1
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Underwriting
Agreement, dated December 8, 2009, by and among Energy XXI (Bermuda)
Limited, UBS Securities LLC and Credit Suisse Securities (USA) LLC, as
representatives of the several underwriters named
therein.
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1.2
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Underwriting
Agreement, dated December 8, 2009, by and among Energy XXI (Bermuda)
Limited, UBS Securities LLC and Credit Suisse Securities (USA)
LLC.
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3.1
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Certificate
of Designations of 7.25% Convertible Perpetual Preferred Stock of Energy
XXI (Bermuda) Limited.
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5.1
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Opinion
of Appleby Global, dated December 10, 2009.
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5.2
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Opinion
of Appleby Global, dated December 10, 2009.
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23.1
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Consent
of Appleby Global (contained in Exhibit 5.1 hereto).
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23.2
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Consent
of Appleby Global (contained in Exhibit 5.2 hereto).
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99.1
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Press
Release of Energy XXI (Bermuda) Limited, dated December 9,
2009.
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4
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| Energy XXI (Bermuda) Limited | |||
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By:
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/s/ David West Griffin | |
| Name: | David West Griffin | ||
| Title: | Chief Financial Officer | ||
December
11, 2009
5
EXHIBIT INDEX
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Exhibit
Number
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Description
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1.1
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Underwriting
Agreement, dated December 8, 2009, by and among Energy XXI (Bermuda)
Limited, UBS Securities LLC and Credit Suisse Securities (USA) LLC, as
representatives of the several underwriters named
therein.
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1.2
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Underwriting
Agreement, dated December 8, 2009, by and among Energy XXI (Bermuda)
Limited, UBS Securities LLC and Credit Suisse Securities (USA)
LLC.
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3.1
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Certificate
of Designations of 7.25% Convertible Perpetual Preferred Stock of Energy
XXI (Bermuda) Limited.
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5.1
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Opinion
of Appleby Global, dated December 10, 2009.
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5.2
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Opinion
of Appleby Global, dated December 10, 2009.
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23.1
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Consent
of Appleby Global (contained in Exhibit 5.1 hereto).
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23.2
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Consent
of Appleby Global (contained in Exhibit 5.2 hereto).
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99.1
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Press
Release of Energy XXI (Bermuda) Limited, dated December 9,
2009.
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