Item 7.01 Regulation FD Disclosure.
Press Release
On May 22, 2020, the Company issued a press release announcing its entry into the RSA and the commencement of the Chapter 11 Cases, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
Cleansing Materials
The Company previously entered into confidentiality agreements with certain of the Consenting Noteholders (“Confidentiality Agreement Parties”) to facilitate discussions concerning the financial restructuring of the Company described in this Current Report on Form 8-K. Under the confidentiality agreements, the Company agreed to publicly disclose certain confidential information concerning the Company that it provided to the Confidentiality Agreement Parties (“Cleansing Materials”). Copies of the Cleansing Materials, consisting of (i) a presentation delivered in March 2020, containing certain financial and other information related to the Company, including a business overview, financial summary, and certain forecasts, and (ii) a supplemental presentation delivered in May 2020, containing a 13-week cash forecast and other updated forecasts, are attached to this Current Report on Form 8-K as Exhibits 99.2 and 99.3 and are incorporated herein by reference.
Statements made and information included in the Cleansing Materials are made as of the dates of the Cleansing Materials and not as of the date hereof. In subsequent operations, the Company’s views on some of these materials may have changed. As such, the Company’s future public filings may contain information that updates or supersedes some of the information in the Cleansing Materials. However, the Company is under no obligation to update the Cleansing Materials to the date hereof or to any future date.
In addition, the Company’s management prepared the forecasts contained in the Cleansing Materials from certain internal financial projections based on expectations, beliefs, opinions, and assumptions of the Company’s management that the Company’s management believed were reasonable at the time they were made in March 2020 and May 2020, as applicable. Those expectations, beliefs, opinions, and assumptions may not be appropriate as of the date hereof in light of developments in the Company’s business, the broader market for oil and natural gas, and the impact of the COVID-19. The forecasts were not prepared with a view toward public disclosure or compliance with the published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants regarding projections or forecasts, and do not purport to present the Company’s financial condition in accordance with accounting principles generally accepted in the United States.
Including the forecasts in this Current Report on Form 8-K should not be regarded as an indication that the Company or any other person considered, or now consider, this information to be predictive of actual future results, and does not constitute an admission or representation by any person that such information is material, or that the expectations, beliefs, opinions, and assumptions that underlie such forecasts remain the same as of this Current Report on Form 8-K, and readers are cautioned not to place undue reliance on the prospective financial information.
Neither the Company’s independent registered public accounting firm nor any other independent accountant has examined, compiled, or performed any procedures regarding the prospective financial information in this Current Report on Form 8-K. Accordingly, none has expressed any opinion or any other form of assurance on such information or its achievability and none assumes any responsibility for the prospective financial information.
The prospective financial information:
•is speculative by its nature and was based on numerous expectations, beliefs, opinions, and assumptions that are inherently uncertain and many of which are beyond the control of the Company and its subsidiaries and which may not prove to be accurate;
•may have changed since the forecasts were prepared in March 2020 and May 2020, as applicable, and does not necessarily reflect current estimates or expectations, beliefs, opinions, or assumptions that the Company’s management may have about prospects for the Company and its subsidiaries’ businesses, changes in general business or economic conditions, or any other transaction or event that has occurred or that may occur and that was not anticipated when the information was prepared;
•may not reflect current results or future performance, which may be more favorable or less favorable than as set forth in such information; and
•is not, and should not be regarded as, a representation that the expectations contained in, or forming a part of, the forecasts will be achieved.
Much of the financial information contained or incorporated by reference in this Current Report on Form 8-K is forward-looking. That forward-looking information is subjective in many respects and is subject to interpretation. Further, the information was prepared based on information available to management in March 2020 and May 2020, as applicable, and relates to multiple future years and such information becomes less predictive with each succeeding year. The Company cannot provide assurance that the financial projections will be realized; rather, actual future financial results are likely to vary materially from the forward-looking information presented or incorporated by reference herein.
Except as required by law, the Company does not currently intend to update or revise publicly any of the information contained in this Current Report on Form 8-K to reflect circumstances or other events occurring after the date the financial projections were prepared or to reflect the occurrence of future events. These considerations should be considered in reviewing the financial projections, which were prepared as of an earlier date. For additional information on factors that may cause actual future financial results to vary materially from the information presented, see the section entitled “Cautionary Note Regarding Forward Looking Statements” below.
The information contained in this Item 7.01, including Exhibits 99.1, 99.2, and 99.3, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (“Exchange Act”), or otherwise subject to the liabilities of that section, and is not be deemed to be incorporated by reference into any of the Company’s filings under the Securities Act of 1933, as amended (“Securities Act”) or the Exchange Act, whether made before or after the date hereof and regardless of any general incorporation language in such filings, except to the extent expressly set forth by specific reference in such a filing. The filing of this Current Report on Form 8-K (including the exhibits hereto or any information included herein or therein) is not deemed an admission as to the materiality of any information herein that is required to be disclosed solely by reason of Regulation FD.
Important Notes Regarding Non-GAAP Financial Measures
Exhibits 99.2 and 99.3 of this Current Report on Form 8-K include certain non-GAAP financial measures, including EBITDA, Adjusted EBITDA, Adjusted EBITDA by Segment, Margin by Segment, Unlevered Free Cash Flow and PV-10. These non-GAAP financial measures should be considered as a supplement to, and not as a substitute for, or superior to, the financial measures prepared under GAAP. Investors are urged to consider closely the disclosure in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Current Reports on Form 8-K.
EBITDA, Adjusted EBITDA, Adjusted EBITDA by Segment, Margin by Segment, Unlevered Free Cash Flow and PV-10 are non-GAAP financial measures used as supplemental financial measures by our management and by external users of our financial statements, such as investors, commercial banks and others, to assess our operating performance or liquidity as compared to that of other companies in our industry, without regard to financing methods, capital structure or historical costs basis. These non-GAAP financial measures are also used to assess our ability to incur and service debt and fund capital expenditures. Our non-GAAP financial measures should not be considered an alternative to net income (loss), operating income (loss), net cash provided by operating activities, standardized
measure of discounted future net cash flows, or any other measure of financial performance or liquidity presented in accordance with GAAP. Our non-GAAP measures may not be comparable to similarly titled measures of another company because all companies may not calculate these non-GAAP financial measures in the same manner.
We define EBITDA as net income (loss) before interest expense, income taxes, depreciation, depletion and amortization, with Adjusted EBITDA being EBITDA modified to exclude impairment of long-lived and intangible assets, (gain) loss on derivatives and other non-cash items and non-recurring items. Margin by Segment is calculated by subtracting the segment operating expense from the segment revenue. Unlevered Free Cash Flow is calculated as our consolidated EBITDA less capital expenditure for our oil and natural gas and contract drilling segments, with adjustments for corporate general and administrative expenses and certain other items. PV-10 is the estimated future net cash flows from proved reserves discounted at an annual rate of 10 percent before giving effect to income taxes. Exhibit 99.2 contains a reconciliation of Adjusted EBITDA by Segment and Margin by Segment to their respective most directly comparable GAAP financial measures. The presentation of EBITDA and Unlevered Free Cash Flow in Exhibits 99.2 and 99.3 is limited to our forecasts of these non-GAAP financial measures for fiscal years 2020 through 2024. We cannot reconcile these non-GAAP measures to their most directly comparable GAAP measure because the information necessary for quantitative reconciliations of the forward-looking non-GAAP financial measures to their respective most directly comparable GAAP financial measures is not (and was not, when prepared) available to us without unreasonable efforts. The probable significance of providing these forward-looking non-GAAP financial measures without the directly comparable GAAP financial measures is that such GAAP financial measures may be materially different from the corresponding non-GAAP financial measures. In addition, because the Company’s estimated PV-10 as of December 31, 2019 and the Company’s estimated consolidated Adjusted EBITDA for 2019 were presented in the Cleansing Materials as projections based on the expectations, beliefs, opinions, and assumptions of the Company’s management at the time they were prepared, the Company believes that it is not beneficial and potentially misleading to disclose the now stale assumptions underlying those non-GAAP financial measure projections and the comparisons between those non-GAAP financial measure projections and their GAAP counterparts. Please refer to the Company’s Annual Report on Form 10-K for the year ended December 31, 2019 for the Company’s net income (loss) and other operating results for fiscal year 2019. The Company’s PV-10 as of December 31, 2019 and its reconciliation to the standardized measure of discounted future net cash flows can be found in the Company’s press release dated March 16, 2020, a copy of which was filed as Exhibit 99.1 to the Company’s Current Report on Form 8-K filed on March 16, 2020.
Item 8.01 Other Events.
The Company is supplementing the risk factors in its Annual Report on Form 10-K for the year ended December 31, 2019 with the risk factor set forth below:
The Company and the other Company RSA Parties filed voluntary petitions on May 22, 2020 commencing the Chapter 11 Cases under the Bankruptcy Code. The Chapter 11 Cases and the Restructuring may have a material adverse impact on the Company’s business, financial condition, results of operations, and cash flows. In addition, the Chapter 11 Cases and the Restructuring are likely to have a material adverse impact on the trading price of the Company’s common stock.
As disclosed under Item 1.01, under the RSA, the Plan is expected to result in (i) each holder of the Subordinated Notes receiving its pro rata share of new common shares of the reorganized Company based on equity allocations at each of the Company, UDC and UPC, in exchange for its allowed Subordinated Notes claim and (ii) each holder of the Company’s common stock receiving no distribution under the Plan except that each holder that does not opt out of the releases under the Plan will receive its pro rata share of the Warrants. Because of this limited recovery to existing holders of the Company’s common stock, the trading price of the Company’s common stock may be adversely affected and may be volatile.
In addition, the Chapter 11 Cases could have a material adverse effect on the Company’s business, financial condition, results of operations, and liquidity. Bankruptcy Court protection also may make it more difficult to retain management and the key personnel necessary to the Company’s business. In addition, during the time the Company is involved in a bankruptcy proceeding, suppliers and others with whom it does business might lose confidence in the Company’s ability to reorganize its business successfully and may discontinue conducting business with the Company or seek to establish alternative commercial relationships.
Other significant risks include or relate to:
•the ability to obtain the Bankruptcy Court’s approval regarding motions or other requests made to the Bankruptcy Court in the Chapter 11 Cases, including maintaining strategic control as debtors-in-possession;
•delays in the Chapter 11 Cases;
•the ability to consummate the Plan in accordance with the RSA;
•the ability to achieve the Company RSA Parties’ stated goals and continue as a going concern;
•the effects of filing the Chapter 11 Cases on the Company RSA Parties’ businesses and the interest of various constituents, including shareholders, customers, suppliers, service providers, and employees;
•the high costs of bankruptcy proceedings and related advisory costs to effect a reorganization under the Plan or otherwise;
•the ability to maintain relationships with customers, suppliers, service providers, employees, and other third parties as a result of the Chapter 11 Cases;
•the ability to maintain contracts critical to the operations of the Company RSA Parties;
•the ability to fund and carry out the business plan of the Company RSA Parties;
•the ability to obtain acceptable financing;
•Bankruptcy Court rulings in the Chapter 11 Cases and the outcome of the Chapter 11 Cases in general;
•the time that the Company RSA Parties will operate with Chapter 11 protection and the continued availability of operating capital during the pendency of the proceedings;
•the ability to confirm and consummate a plan of reorganization regarding the Chapter 11 Cases, views and objections of creditors and other parties in interest that may make it difficult to consummate a plan promptly;
•the ability of third parties to obtain Bankruptcy Court approval to terminate or shorten the exclusivity period for the Company RSA Parties to propose and confirm a plan of reorganization, to appoint a U.S. trustee or to convert the Chapter 11 Cases to cases under Chapter 7 of the Bankruptcy Code;
•third-party motions in the Chapter 11 Cases, which may interfere with the Company RSA Parties’ ability to consummate the Plan; and
•the potential adverse effects of the Chapter 11 Cases on the liquidity and results of operations of the Company RSA Parties.
Because of the risks and uncertainties associated with the Chapter 11 Cases, the Company cannot predict or quantify the ultimate impact that events during the Chapter 11 Cases may have on its business, cash flows, liquidity, financial condition and results of operations, nor can the Company predict the ultimate impact that events during the Chapter 11 Cases may have on its corporate or capital structure.
Cautionary Note Regarding Forward Looking Statements
This Current Report on Form 8-K contains “forward-looking statements” within the meaning of the safe harbor provisions of Section 27A of the Securities Act and Section 21E of the Exchange Act. Forward-looking statements are not statements of historical facts and often contain words such as “may,” “will,” “expect,” “believe,” “anticipate,” “plan,” “estimate,” “seek,” “could,” “should,” “intend,” “potential,” or words of similar meaning. Forward-looking statements are based on management’s current expectations, beliefs, assumptions and estimates regarding the Company, industry, economic conditions, government regulations and energy policies and other factors. Forward-
looking statements may include, for example, statements regarding the Chapter 11 Cases, the RSA, the DIP Facility, the Exit Facility, the Company’s ability to complete the Restructuring and its ability to continue operating in the ordinary course while the Chapter 11 Cases are pending. These statements are subject to significant risks, uncertainties, and assumptions that are difficult to predict and could cause actual results to differ materially and adversely from those expressed or implied in the forward-looking statements, including risks and uncertainties regarding the Company’s ability to successfully complete a reorganization process under Chapter 11, including consummation of the Restructuring under the Plan; potential adverse effects of the Chapter 11 Cases on the Company’s liquidity and results of operations; the Company’s ability to obtain timely approval by the Bankruptcy Court regarding the motions filed in the Chapter 11 Cases; objections to the Company’s restructuring process, the DIP Facility, or other pleadings filed that could protract the Chapter 11 Cases; employee attrition and the Company’s ability to retain senior management and other key personnel due to the distractions and uncertainties, including the Company’s ability to provide adequate compensation and benefits during the Chapter 11 Cases; the Company’s ability to comply with the restrictions imposed by the DIP Credit Agreement and other financing arrangements; the Company’s ability to maintain relationships with suppliers, customers, employees and other third parties and regulatory authorities because of the Chapter 11 filing; the effects of the Chapter 11 Cases on the Company and on the interests of various constituents, including holders of the Company’s common stock; the Bankruptcy Court’s rulings in the Chapter 11 Cases, including the approvals of the RSA and the DIP Credit Agreement, and the outcome of the Chapter 11 Cases generally; the time that the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the Chapter 11 Cases; risks associated with third party motions in the Chapter 11 Cases, which may interfere with the Company’s ability to consummate the Restructuring or an alternative restructuring; increased administrative and legal costs related to the Chapter 11 process; potential delays in the Chapter 11 process due to the effects of the COVID-19 virus; and other litigation and inherent risks involved in a bankruptcy process. Forward-looking statements are also subject to the risk factors and cautionary language described occasionally in the reports and registration statements the Company files with the Securities and Exchange Commission, including those in the Company’s most recent and forthcoming Annual Report on Form 10-K and any updates thereto in the Company’s Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Additional factors, events, or uncertainties that may emerge occasionally, or those that the Company deems immaterial, could cause the Company’s actual results to differ, and it is impossible for the Company to predict them all. the Company makes forward-looking statements based on currently available information, and the Company assumes no obligation to, and expressly disclaim any obligation to, update or revise publicly any forward-looking statements made in this Current Report on Form 8-K, whether because of new information, future events or otherwise, except as required by law.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit Number
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Description
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10.1
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Restructuring Support Agreement, dated as of May 22, 2020, by and among Unit Corporation, Unit Petroleum Company, Unit Drilling Company, 8200 Unit Drive, L.L.C., Unit Drilling USA Colombia, L.L.C., Unit Drilling Colombia L.L.C., the Consenting RBL Lenders party thereto, BOKF, NA dba Bank of Oklahoma as RBL Agent, and the Consenting Noteholders party thereto
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10.2
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Continuation Agreement, dated as of May 22, 2020, by and among Superior Pipeline Company, L.L.C., Unit Corporation, SPC Midstream Operating, L.L.C., SP Investor Holdings, LLC, 8200 Unit Drive, L.L.C., Unit Drilling Colombia, L.L.C., Unit Drilling Company, Unit Drilling USA Colombia, L.L.C. and Unit Petroleum Company
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10.3
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99.1
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99.2
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99.3
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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