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EX-1.1 - EX-1.1 - RSP Permian, Inc.a2217908zex-1_1.htm
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As filed with the Securities and Exchange Commission on January 10, 2014

Registration No. 333-192268

UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



AMENDMENT NO. 4
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933



RSP Permian, Inc.
(Exact name of registrant as specified in its charter)



Delaware
(State or other jurisdiction of incorporation or organization)
  1311
(Primary Standard Industrial
Classification Code Number)
  90-1022997
(I.R.S. Employer
Identification Number)

3141 Hood Street, Suite 701
Dallas, Texas 75219
(214) 252-2700

(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)

Scott McNeill
Chief Financial Officer
3141 Hood Street, Suite 701
Dallas, Texas 75219
(214) 252-2700
(Name, address, including zip code, and telephone number, including area code, of agent for service)



Copies to:
Douglas E. McWilliams
Christopher G. Schmitt
Vinson & Elkins L.L.P.
1001 Fannin Street, Suite 2500
Houston, Texas 77002
  J. Michael Chambers
David J. Miller
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002

          Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after the effective date of this Registration Statement.

          If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box:    o

          If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

          If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

          If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.    o

          Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer o   Accelerated filer o
Non-accelerated filer ý (Do not check if a smaller reporting company)   Smaller reporting company o

          The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.



EXPLANATORY NOTE

        This Amendment No. 4 to the Registration Statement on Form S-1 (File No. 333-192268) is filed solely to amend Item 13 and Item 16 of Part II thereof and to transmit certain exhibits thereto. This Amendment No. 4 does not modify any provision of the preliminary prospectus contained in Part I. Accordingly, the preliminary prospectus has been omitted.



Part II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 13.    Other Expenses of Issuance and Distribution

        The following table sets forth an itemized statement of the amounts of all expenses (excluding underwriting discounts and commissions) payable by us in connection with the registration of the common stock offered hereby. With the exception of the SEC registration fee, the FINRA filing fee and the New York Stock Exchange listing fee, the amounts set forth below are estimates.

SEC registration fee

  $ 62,210  

FINRA filing fee

    72,950  

NYSE listing fee

    250,000  

Accounting fees and expenses

    400,000  

Legal fees and expenses

    1,750,000  

Printing and engraving expenses

    700,000  

Transfer agent and registrar fees

    10,850  

Miscellaneous

    253,990  
       

Total

  $ 3,500,000  
       

Item 14.    Indemnification of Directors and Officers

        Section 145 of the DGCL provides that a corporation may indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise), against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. A similar standard is applicable in the case of derivative actions (i.e., actions by or in the right of the corporation), except that indemnification extends only to expenses, including attorneys' fees, incurred in connection with the defense or settlement of such action and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation.

        Our amended and restated certificate of incorporation and amended and restated bylaws will contain provisions that limit the liability of our directors and officers for monetary damages to the fullest extent permitted by the DGCL. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except liability:

    for any breach of the director's duty of loyalty to our company or our stockholders;

    for any act or omission not in good faith or that involve intentional misconduct or knowing violation of law;

    under Section 174 of the DGCL regarding unlawful dividends and stock purchases; or

    for any transaction from which the director derived an improper personal benefit.

        Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or

II-1


repeal. If the DGCL is amended to provide for further limitations on the personal liability of directors or officers of corporations, then the personal liability of our directors and officers will be further limited to the fullest extent permitted by the DGCL.

        In addition, we intend to enter into indemnification agreements with our current directors and officers containing provisions that are in some respects broader than the specific indemnification provisions contained in the DGCL. These indemnification agreements will require us, among other things, to indemnify our directors against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our future directors and officers.

        We intend to maintain liability insurance policies that indemnify our directors and officers against various liabilities, including certain liabilities under arising under the Securities Act and the Exchange Act, that may be incurred by them in their capacity as such.

        The proposed form of Underwriting Agreement filed as Exhibit 1.1 to this registration statement provides for indemnification of our directors and officers by the underwriters against certain liabilities arising under the Securities Act or otherwise in connection with this offering.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

Item 15.    Recent Sales of Unregistered Securities

        In connection with this offering, we will issue: (i) 1,793,123 shares of our common stock to Rising Star in connection with the Rising Star Acquisition; (ii) 9,902,876, 9,954,626 and 2,166,152 shares of our common stock to Collins, Wallace LP and Collins & Wallace Holdings, LLC, respectively, in connection with the Collins and Wallace Contributions; (iii) 105,170 shares of our common stock to Pecos in connection with the Pecos Contribution; and (iv) 10,816,626 shares of our common stock to ACTOIL in connection with the ACTOIL NPI Repurchase.

        The shares of our common stock described in this Item 15 will be issued in reliance upon the exemption from the registration requirements of the Securities Act provided by Section 4(2) of the Securities Act as sales by an issuer not involving any public offering.

Item 16.    Exhibits and Financial Statement Schedules

        (a)   Exhibits

Exhibit
number
  Description
1.1   Form of Underwriting Agreement

3.1

**

Form of Amended and Restated Certificate of Incorporation of RSP Permian, Inc.

3.2

**

Form of Amended and Restated Bylaws of RSP Permian, Inc.

4.1

 

Form of Common Stock Certificate

4.2

**

Form of Stockholders' Agreement among RSP Permian, Inc., RSP Permian Holdco, L.L.C., Ted Collins, Jr., Wallace Family Partnership, LP, Rising Star Energy Development Co., L.L.C. and Pecos Energy Partners, L.P.

II-2


Exhibit
number
  Description
4.3 ** Form of Registration Rights Agreement among RSP Permian, Inc., RSP Permian Holdco, L.L.C., Ted Collins, Jr., Wallace Family Partnership, LP, ACTOIL, LLC, Rising Star Energy Development Co., L.L.C. and Pecos Energy Partners, L.P.

5.1

**

Opinion of Vinson & Elkins L.L.P. as to the legality of the securities being registered

10.1

**

Amended and Restated Credit Agreement, dated September 10, 2013, by and between RSP Permian, L.L.C., as borrower, Comerica Bank, as administrative agent, and the lenders party thereto

10.2

**

Form of RSP Permian, Inc. 2014 Long-Term Incentive Plan

10.3

**

Form of Restricted Stock Agreement

10.4

**

Form of Indemnification Agreement between RSP Permian, Inc. and each of the directors and officers thereof

10.5

**

Form of Master Contribution Agreement among RSP Permian, Inc., RSP Permian Holdco, L.L.C., RSP Permian, L.L.C., Rising Star Energy Development Co., L.L.C., Ted Collins, Jr., Wallace Family Partnership, LP, Collins & Wallace Holdings, LLC and Pecos Energy Partners, L.P.

10.6

**

Form of Letter Agreement by and between ACTOIL, LLC and RSP Permian, L.L.C.

10.7

**

Form of Amended and Restated Limited Liability Company Agreement of RSP Permian Holdco, L.L.C.

21.1

**

Subsidiaries of RSP Permian, Inc.

23.1

**

Consent of Grant Thornton LLP

23.2

**

Consent of Grant Thornton LLP

23.3

**

Consent of Grant Thornton LLP

23.4

**

Consent of Grant Thornton LLP

23.5

**

Consent of Ryder Scott Company, L.P.

23.6

**

Consent of Vinson & Elkins L.L.P. (included as part of Exhibit 5.1 hereto)

23.7

**

Consent of Director Nominee

23.8

**

Consent of Director Nominee

23.9

**

Consent of Director Nominee

23.10

**

Consent of Director Nominee

24.1

**

Power of Attorney (included on the signature page of this Registration Statement)

99.1

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

99.2

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

99.3

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

99.4

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

**
Previously filed.

II-3


        (b)   Financial Statement Schedules. Financial statement schedules are omitted because the required information is not applicable, not required or included in the financial statements or the notes thereto included in the prospectus that forms a part of this registration statement.

Item 17.    Undertakings

        The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

        The undersigned registrant hereby undertakes that:

            (1)   For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

            (2)   For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

II-4



SIGNATURES

        Pursuant to the requirements of the Securities Act, the registrant has duly caused this Amendment No. 4 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on January 10, 2014.

    RSP PERMIAN, INC.

 

 

By:

 

/s/ SCOTT MCNEILL

Scott McNeill
Chief Financial Officer and Director

        Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons on January 10, 2014 in the capacities indicated.

Signature
 
Title

 

 

 

 

 
*

Michael Grimm
  Chairman of the Board

*

Steven Gray

 

Chief Executive Officer and Director
(Principal Executive Officer)

/s/ SCOTT MCNEILL

Scott McNeill

 

Chief Financial Officer and Director
(Principal Financial Officer and
Principal Accounting Officer)

*

David Albin

 

Director

*

Joseph B. Armes

 

Director

*By:

 

/s/ SCOTT MCNEILL

Scott McNeill
Attorney-in-Fact

 

 

II-5



INDEX TO EXHIBITS

Exhibit
number
  Description
1.1   Form of Underwriting Agreement

3.1

**

Form of Amended and Restated Certificate of Incorporation of RSP Permian, Inc.

3.2

**

Form of Amended and Restated Bylaws of RSP Permian, Inc.

4.1

 

Form of Common Stock Certificate

4.2

**

Form of Stockholders' Agreement among RSP Permian, Inc., RSP Permian Holdco, L.L.C., Ted Collins, Jr., Wallace Family Partnership, LP, Rising Star Energy Development Co., L.L.C. and Pecos Energy Partners, L.P.

4.3

**

Form of Registration Rights Agreement among RSP Permian, Inc., RSP Permian Holdco, L.L.C., Ted Collins, Jr., Wallace Family Partnership, LP, ACTOIL, LLC, Rising Star Energy Development Co., L.L.C. and Pecos Energy Partners, L.P.

5.1

**

Opinion of Vinson & Elkins L.L.P. as to the legality of the securities being registered

10.1

**

Amended and Restated Credit Agreement, dated September 10, 2013, by and between RSP Permian, L.L.C., as borrower, Comerica Bank, as administrative agent, and the lenders party thereto

10.2

**

Form of RSP Permian, Inc. 2014 Long-Term Incentive Plan

10.3

**

Form of Restricted Stock Agreement

10.4

**

Form of Indemnification Agreement between RSP Permian, Inc. and each of the directors and officers thereof

10.5

**

Form of Master Contribution Agreement among RSP Permian, Inc., RSP Permian Holdco, L.L.C., RSP Permian, L.L.C., Rising Star Energy Development Co., L.L.C., Ted Collins, Jr., Wallace Family Partnership, LP, Collins & Wallace Holdings, LLC and Pecos Energy Partners, L.P.

10.6

**

Form of Letter Agreement by and between ACTOIL, LLC and RSP Permian, L.L.C.

10.7

**

Form of Amended and Restated Limited Liability Company Agreement of RSP Permian Holdco, L.L.C.

21.1

**

Subsidiaries of RSP Permian, Inc.

23.1

**

Consent of Grant Thornton LLP

23.2

**

Consent of Grant Thornton LLP

23.3

**

Consent of Grant Thornton LLP

23.4

**

Consent of Grant Thornton LLP

23.5

**

Consent of Ryder Scott Company, L.P.

23.6

**

Consent of Vinson & Elkins L.L.P. (included as part of Exhibit 5.1 hereto)

23.7

**

Consent of Director Nominee

23.8

**

Consent of Director Nominee

23.9

**

Consent of Director Nominee

II-6


Exhibit
number
  Description
23.10 ** Consent of Director Nominee

24.1

**

Power of Attorney (included on the signature page of this Registration Statement)

99.1

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

99.2

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

99.3

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

99.4

**

Ryder Scott Company, L.P., Summary of Reserves at June 30, 2013

**
Previously filed.

II-7




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EXPLANATORY NOTE
Part II INFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
INDEX TO EXHIBITS