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As filed with the Securities and Exchange Commission on May 10, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER SECURITIES ACT OF 1933
Riley Exploration Permian, Inc.
(Exact name of registrant as specified in its charter)
Delaware | | | 87-0267438 |
(State or other jurisdiction of
incorporation or organization) | | | (I.R.S. Employer
Identification No.) |
29 E. Reno Avenue, Suite 500
Oklahoma City, Oklahoma 73104
(405) 415-8699
(Address, including zip code, and telephone number, including
area code, of Registrant’s principal executive offices)
Bobby D. Riley
Chief Executive Officer and Chairman of the Board
29 E. Reno Avenue, Suite 500
Oklahoma City, Oklahoma 73104
(405) 415-8699
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy To:
Amy R. Curtis
Holland & Knight LLP
1722 Routh Street, Suite 1500
Dallas, Texas 75201
(214) 969-1763 | | | Beth di Santo, Esq.
di Santo Law PLLC
170 Christopher Street
New York, New York 10014
(212) 365-8677 |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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. ☐
If this Form is a registration statement pursuant to general Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the commission pursuant to Rule 462(e) under the Securities Act, check the following box, ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ☐ | | | Accelerated filer ☒ | | | Non-accelerated filer ☐ | | | Smaller Reporting Company ☒ | | | 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 7(a)(2)(B) of Securities Act. ☐
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 which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
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Explanatory Note
This registration statement contains:
• | a base prospectus which covers the offering, issuance and sale by us of up to $250,000,000 in the aggregate of the securities identified below from time to time in one or more offerings; and |
• | a resale prospectus which covers the offering and sale of 12,037,813 shares of common stock of Riley Exploration Permian, Inc. that may be sold in one or more secondary offerings by the selling stockholders from time to time. |
The specific terms of the securities offered pursuant to the base prospectus will be specified in one or more prospectus supplements to be filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended.
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated May 10, 2024
PROSPECTUS
$250,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Rights
Riley Exploration Permian, Inc. (the “Company”) may offer and sell up to an aggregate of $250,000,000 of our common stock, par value $0.001 per share (“common stock”), our preferred stock, par value $0.0001 per share (“preferred stock”), debt securities, warrants, units and rights (collectively, “securities”) from time to time, separately or together, in amounts, at prices and on terms to be determined at or prior to the time of such offering.
We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. This prospectus describes the general terms of these securities. The specific terms of any securities and the specific manner in which we will offer them will be included in a supplement to this prospectus relating to that offering.
We encourage you to carefully read this prospectus and any applicable prospectus supplement before you invest in our securities. We also encourage you to read the documents we have referred you to in the “Where You Can Find More Information” section of this prospectus for information on us and for our financial statements. This prospectus may not be used to consummate sales of our securities unless accompanied by a prospectus supplement.
Our common stock is traded on the NYSE American under the symbol “REPX.” On May 9, 2024, the last reported sales price of our common stock was $27.72 per share. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
The securities offered in this prospectus involve risks. You should carefully consider the risks associated with any investment in our securities that are described in the applicable prospectus supplement and contained in our filings with the Securities and Exchange Commission as described in “Risk Factors” on page
3 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024
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Unless the context requires otherwise, references in this prospectus to “Riley Exploration Permian, Inc.,” “Riley Permian,” the “Company,” the “Registrant,” “we,” “us,” “our” and similar terms refer to Riley Exploration Permian, Inc. and its consolidated subsidiaries.
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may, over time, offer and sell any combination of the securities described in this prospectus in one or more offerings up to an aggregate amount of $250,000,000. This prospectus provides a general description of the securities. Each time we sell any of the securities described herein, we may provide a prospectus supplement that will contain specific information about the terms of that offering and may include a discussion of any risk factors or other special considerations that apply to those securities. The prospectus supplement may also add to, update or change the information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any applicable prospectus supplement, you should rely on the information in the applicable prospectus supplement. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to the offering. Please carefully read this prospectus, any applicable prospectus supplement, any free writing prospectus that we authorize to be distributed to you, and any information incorporated by reference herein or therein, together with additional information described herein under the headings “Incorporation of Certain Information by Reference” and “Where You Can Find More Information,” before buying any of the securities offered under this prospectus.
You should rely only on the information contained in this prospectus and in any applicable prospectus supplement or free writing prospectus, including any information incorporated herein or therein by reference. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information in this prospectus, any accompanying prospectus supplement, any free writing prospectus or any document incorporated by reference herein or therein is accurate as of any date other than the date on its front cover. Our business, financial condition, results of operations and prospects may have changed since the date indicated on the front cover of such documents. We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference into this prospectus or any applicable prospectus supplement or free writing prospectus were made solely for the benefit of the parties to such agreement on the date thereof, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made or expressly referenced therein.
This prospectus incorporates by reference, and any applicable prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any applicable prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
Neither this prospectus nor any prospectus supplement or free writing prospectus constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities to which they relate, nor does this prospectus or a prospectus supplement or free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
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ABOUT RILEY EXPLORATION PERMIAN, INC.
Overview
Riley Exploration Permian, Inc., together with its wholly-owned subsidiaries, is a growth-oriented, independent oil and natural gas company focused on the acquisition, exploration, development and production of oil, natural gas and natural gas liquids (“NGLs”) in Texas and New Mexico. The majority of our acreage is located in Yoakum County, Texas and Eddy County, New Mexico.
We focus on horizontal drilling and completions applied to conventional formations in the Permian Basin. Our principal business objective is to deliver long-term shareholder value by development of our existing assets and continuous improvement of our operating capabilities and cost structure by utilizing our extensive technical expertise. We also look for opportunities to add to our drilling inventory through acquisitions that meet our strategic and financial objectives. We believe such growth and corresponding increase in scale can lead to additional operating cost efficiencies.
Management prioritizes corporate sustainability and positioning the Company for success in both the near-term and long-term with initiatives focused on existing business and the transitioning energy landscape. Our strategic objectives include enhancing the rate of return on our invested capital, generating sustainable free cash flow, maintaining a strong and flexible balance sheet and maximizing returns to our shareholders. We implement this strategy primarily through identification and capture of attractive development opportunities, optimization of our assets and operations and continuous improvement of our cost structure.
Corporate Information
We were formed as a Delaware limited liability company, Riley Exploration – Permian, LLC (“REP LLC”), in 2016. In February 2021, REP LLC consummated a merger pursuant to which REP LLC became a wholly-owned subsidiary of Tengasco, Inc., a Delaware corporation (“Tengasco”), and Tengasco changed its name to Riley Exploration Permian, Inc. (the “Merger”). Our organizational structure includes wholly-owned consolidated subsidiaries through which our operations are conducted, including without limitation, REP LLC and Riley Permian Operating Company, LLC, a Delaware limited liability company. Our executive offices are located at 29 E. Reno Ave., Suite 500, Oklahoma City, Oklahoma 73104, and the phone number at this address is (405) 415-8699. Our website address is www.rileypermian.com. Information on our website or any other website is not incorporated by reference into, and does not constitute a part of, this prospectus. We make our periodic reports and other information filed with or furnished to the SEC available free of charge through our website as soon as reasonably practicable after those reports and other information are electronically filed with or furnished to the SEC.
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Investing in our securities involves risks. Before you make a decision to buy our securities, in addition to the risks and uncertainties discussed below under “Cautionary Statement Regarding Forward-Looking Statements,” you should carefully consider the specific risks set forth under the caption “Risk Factors” in any applicable prospectus supplement, as well as information included in our most recent Annual Report on Form 10-K, any subsequently filed Quarterly Reports on Form 10-Q and any subsequently filed Current Reports on Form 8-K, as incorporated herein by reference. If any of these risks actually occur, it may materially harm our business, financial condition, liquidity and results of operations. As a result, the market price of our securities could decline, and you could lose all or part of your investment. Additionally, the risks and uncertainties described in this prospectus, any prospectus supplement or in any document incorporated by reference herein or therein are not the only risks and uncertainties that we face. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The statements contained in and incorporated by reference into this prospectus that are not historical facts are forward-looking statements that represent management’s beliefs and assumptions based on currently available information. Forward-looking statements include information concerning our possible or assumed future results of operations, business strategies, need for financing, competitive position and potential growth opportunities. Our forward-looking statements do not consider the effects of future legislation or regulations. Forward-looking statements include all statements that are not historical facts and can be identified by the use of forward-looking terminology such as the words “believes,” “intends,” “may,” “should,” “anticipates,” “expects,” “could,” “plans,” “estimates,” “projects,” “targets” or comparable terminology or by discussions of strategy or trends. Although we believe that the expectations reflected in such forward-looking statements are reasonable, we cannot give any assurances that these expectations will prove to be correct. Such statements by their nature involve risks and uncertainties that could significantly affect expected results, and actual future results could differ materially from those described in such forward-looking statements.
Among the factors that could cause actual future results to differ materially are the risks and uncertainties discussed in this prospectus, any prospectus supplement and in the documents incorporated herein or therein by reference. While it is not possible to identify all factors, we continue to face many risks and uncertainties including, but not limited to:
Risks Related to Our Business Operations, and Strategy
• | An extended decline in commodity prices may adversely affect our business, financial condition, results of operations, ability to meet our capital expenditure obligations and financial commitments, and the value of our reserves. |
• | We may be unable to obtain required capital or financing on satisfactory terms in order to fund our exploration and development projects, which could lead to a decline in our reserves. |
• | Our exploration and development efforts may not be profitable or achieve our targeted returns. |
• | Properties we acquire may not produce as projected, and may subject us to liabilities. |
• | Uncertainties could materially alter the occurrence or timing of drilling of our identified drilling locations. |
• | Reserve estimates depend on many assumptions that may turn out to be inaccurate. |
• | We are vulnerable to risks associated with operating in one major geographic area. |
• | We may not be able to access on commercially reasonable terms or otherwise truck transportation, pipelines, gas gathering, transmission, storage and processing facilities to market our oil and natural gas production. |
• | Our estimated proved undeveloped reserves may not be ultimately developed or produced if their development is costlier or more time consuming than expected. |
• | We may be unable or fail to successfully integrate acquired assets into our operations and development activities. |
• | There may be potential delays in the development, construction or start-up of planned projects. |
• | Unless we replace our reserves with new reserves and develop those reserves, our reserves and production will decline. |
• | Our undeveloped acreage must be drilled before lease expirations to hold the acreage by production, which could result in a substantial lease renewal cost or loss of our lease and prospective drilling opportunities. |
• | Funding through capital market transactions may be difficult and expensive due to our small public float, low market capitalization, and limited operating history. |
• | Covenants in our revolving credit facility may restrict our business and financing activities and our ability to declare dividends. |
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• | We may not be able to generate sufficient cash to service all of our indebtedness. |
• | Our derivative activities could result in financial losses or could reduce our earnings. |
Risks Related to the Oil and Natural Gas Industry
• | Conservation measures, alternative sources of energy and technological advances could reduce demand for oil, natural gas and NGLs. |
• | Shortages or cost increases related to equipment, supplies or qualified personnel could delay or cause us to incur significant expenditures that are not provided for in our capital budget, which could have a material adverse effect on our business, financial condition or results of operations. |
• | Negative public perception regarding us and/or our industry could have an adverse effect on our operations. |
• | General domestic and international economic, market and political conditions, including the military conflict between Russia and Ukraine, the Israel-Hamas conflict, and the global response to such conflicts may negatively impact us. |
Risks Related to Public Health, Acts of God, and Cybersecurity
• | Our business and operations may be adversely affected by public health crises, such as pandemics and epidemics. |
• | Power outages or limits and increased energy costs could have a material adverse effect on us. |
• | Extreme weather conditions could adversely affect our business and operations. |
• | Our business could be negatively affected by security threats, including cybersecurity threats, and other disruptions. |
Risks Related to Legal, Regulatory, and Tax Matters
• | Regulations related to environmental and occupational health and safety issues could adversely affect the cost, manner or feasibility of conducting our operations. |
• | We are responsible for the decommissioning, plugging, abandonment, and reclamation costs for our facilities. |
• | Increased regulation of our oil and natural gas assets could cause our revenues to decline and operating expenses to increase. |
• | Regulatory initiatives relating to hydraulic fracturing, regulation of greenhouse gases, water conservation, seismic activity, weatherization, or protection of certain species of wildlife, or of sensitive environmental areas could result in increased costs and/or decreased production. |
• | New or increased taxes or fees on oil and natural gas extraction or production or changes in our effective tax rate, could adversely impact us. |
Risks Related to Our Common Stock
• | The market price of our common stock may be volatile, which could cause the value of an investment in our stock to decline. |
• | If we fail to continue to meet NYSE American listing requirements, our common stock could be delisted from trading, which would decrease the liquidity of our common stock and ability to raise additional capital. |
• | Our quarterly cash dividends, if any, may vary significantly both quarterly and annually. |
• | Our board of directors may modify or revoke our dividend policy at any time at its discretion. |
• | Available cash for dividends depends primarily on our cash flow and not solely on our profitability, which may prevent us from paying dividends, even during periods in which we record net income. |
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Risks Related to the Company
• | Our business and operations could be adversely affected if we lose key personnel. |
• | Our executive officers, directors and principal stockholders have the ability to control or significantly influence all matters submitted to the Company’s stockholders for approval. |
• | Conflicts of interest could arise in the future between us, on the one hand, and certain of our stockholders and their respective affiliates. |
• | Cybersecurity threats, technology system failures and data security issues could impair our ability to operate, adversely affect our business, and damage our brand and reputation. |
All forward-looking statements speak only as of the date of this prospectus. We do not undertake any obligation to publicly release any revisions to these forward-looking statements regarding new information, future events or otherwise, except as required by applicable securities laws. You should not place undue reliance on these forward-looking statements. These forward-looking statements are subject to a number of risks, uncertainties and assumptions. Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. Although we believe that our plans, intentions and expectations reflected in or suggested by the forward-looking statements we make in this prospectus, any prospectus supplement, and any documents incorporated herein or therein by reference are reasonable, we can give no assurance that these plans, intentions or expectations will be achieved or occur, and actual results could differ materially and adversely from those anticipated or implied by the forward-looking statements.
Reserve engineering is a process of estimating underground accumulations of oil and natural gas that cannot be measured in an exact way. The accuracy of any reserve estimate depends on the quality of available data, the interpretation of such data and the price and cost assumptions made by our reserve engineers. In addition, the results of drilling, testing and production activities may justify revisions of estimates that were made previously. If significant, such revisions would change the schedule of any further production and development drilling. Accordingly, reserve estimates may differ from the quantities of oil and natural gas that are ultimately recovered.
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Unless specified otherwise in the applicable prospectus supplement, we expect to use the net proceeds we receive from the sale of the securities offered by this prospectus and any accompanying prospectus supplement for general corporate purposes, which may include, among other things:
• | repayment or refinancing of indebtedness; |
• | financing other business opportunities or investments; |
• | repurchases and redemptions of securities; and |
• | general working capital purposes. |
Pending the application of such proceeds, we intend to invest the proceeds in short-term, investment-grade, interest-bearing instruments.
The actual application of proceeds from the sale of any particular offering of our securities using this prospectus will be determined at the time of such offering and will be described in the applicable prospectus supplement relating to such offering. The precise amount and timing of the application of these proceeds will depend upon, among other factors, our funding requirements and the availability and cost of other funds. As a result, our management will have broad discretion regarding the timing and application of the proceeds from the sale of any particular offering of our securities using this prospectus.
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DESCRIPTION OF CAPITAL STOCK
The following is a description of our capital stock and a summary of the rights of our stockholders. This description and summary is not complete, and you should also refer to our first amended and restated certificate of incorporation (“certificate of incorporation”) and third amended and restated bylaws (“bylaws”), which are incorporated by reference into this prospectus.
The Company’s authorized capital stock consists of an aggregate of 265 million (265,000,000) shares, including:
• | 240 million (240,000,000) shares of common stock, par value $0.001 per share; and |
• | 25 million (25,000,000) shares of preferred stock, par value $0.0001 per share. |
As of April 15, 2024, there were 21,527,852 shares of common stock outstanding and no shares of preferred stock outstanding.
Common Stock
Except as provided by law or in a preferred stock designation, holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, will have the exclusive right to vote for the election of directors and do not have cumulative voting rights. Except as otherwise required by law, holders of common stock are not entitled to vote on any amendment to the certificate of incorporation (including any certificate of designations relating to any series of preferred stock) that relates solely to the terms of any outstanding series of preferred stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to our certificate of incorporation (including any certificate of designations relating to any series of preferred stock) or pursuant to the Delaware General Corporation Law (“DGCL”). Subject to prior rights and preferences that may be applicable to any outstanding shares or series of preferred stock, holders of common stock are entitled to receive ratably in proportion to the shares of common stock held by them such dividends (payable in cash, stock or otherwise), if any, as may be declared from time to time by our board of directors out of funds legally available for dividend payments. All outstanding shares of common stock are fully paid and non-assessable.
The holders of common stock have no preferences or rights of conversion, exchange, pre-emption or other subscription rights. There are no redemption or sinking fund provisions applicable to common stock. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of our affairs, holders of common stock will be entitled to share ratably in our assets in proportion to the shares of common stock held by them that are remaining after payment or provision for payment of all of our debts and obligations and after distribution in full of preferential amounts to be distributed to holders of outstanding shares of preferred stock, if any.
Preferred Stock
Our certificate of incorporation authorizes our board of directors, subject to any limitations prescribed by law, without further stockholder approval, to establish and to issue from time to time one or more classes or series of preferred stock, covering up to an aggregate of 25,000,000 shares of preferred stock. Each class or series of preferred stock will cover the number of shares and will have the powers, preferences, rights, qualifications, limitations and restrictions determined by the board of directors, which may include, among others, dividend rights, liquidation preferences, voting rights, conversion rights, preemptive rights and redemption rights. Except as provided by law or in a preferred stock designation, the holders of preferred stock will not be entitled to vote at or receive notice of any meeting of stockholders.
This summary of the undesignated preferred stock discusses terms and conditions that we expect may apply to any series of the preferred stock that may be offered under this prospectus. The applicable prospectus supplement will describe the particular terms of each series of preferred stock actually offered. If indicated in the prospectus supplement, the terms of any series may differ from the terms described below.
We expect the prospectus supplement for any preferred stock that we actually offer pursuant to this prospectus to include some or all of the following terms:
• | the designation of the series of preferred stock; |
• | the dividend rate or rates of the shares, the method or methods of calculating the dividend rate or rates, the dates on which dividends, if declared, will be payable, and whether or not the dividends are to be cumulative and, if cumulative, the circumstances in which dividends shall be cumulative; |
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• | the amounts payable on shares of the preferred stock in the event of our voluntary or involuntary liquidation, dissolution or winding up; |
• | the redemption rights and price or prices, if any, for the shares of preferred stock; |
• | the terms, and the amount, of any sinking fund or analogous fund providing for the purchase or redemption of the shares of preferred stock; |
• | any restrictions on our ability to make payments on any of our capital stock if dividend or other payments are not made on the preferred stock; |
• | any voting rights granted to the holders of the shares of preferred stock in addition to those required by Delaware law or our certificate of incorporation; |
• | whether the shares of preferred stock will be convertible into shares of our common stock or any other class of our capital stock, and, if convertible, the conversion price or prices, and any adjustment or other terms and conditions upon which the conversion shall be made; |
• | any other rights, preferences, restrictions, limitations or conditions relative to the shares of preferred stock permitted by Delaware law or our certificate of incorporation; |
• | any listing of the preferred stock on any securities exchange; and |
• | the federal income tax considerations applicable to the preferred stock. |
Subject to our certificate of incorporation and to any limitations imposed by any then outstanding preferred stock, we may issue additional series of preferred stock, at any time or from time to time, with such powers, preferences, rights and qualifications, limitations or restrictions as our board of directors determines, and without further action of the stockholders, including holders of our then outstanding preferred stock, if any.
Registration Rights
In connection with the Merger, we assumed the obligations under REP LLC’s second amended and restated registration rights agreement (the “Registration Rights Agreement”) executed by and among REP LLC and its former members. The Registration Rights Agreement provides for customary rights for these parties to demand that the Company file a resale shelf registration statement and certain piggyback rights with respect to registrable securities held by such parties. These registrable securities include the Company’s common stock that was issued to these stockholders in connection with the Merger. Pursuant to the terms of the Registration Rights Agreement, 12,037,813 shares of our common stock are registrable under the Registration Rights Agreement.
Subject to certain limitations in the Registration Rights Agreement, parties to the agreement holding more than 15% of the then-currently registrable securities under the agreement can require the Company to participate in a firm underwritten resale of the securities; provided that the Company will not be obligated to participate in more than two such underwritten resales per year.
Subject to certain exceptions, if at any time the Company proposes to register an offering of equity securities or conduct an underwritten offering, whether or not for its own account, then the Company must notify the stockholders that are a party to the Registration Rights Agreement of such proposal to allow them to include a specified number of their registrable securities in that registration statement or underwritten offering, as applicable.
These registration rights are subject to certain conditions and limitations, including the right of the underwriters to limit the number of shares to be included in a registration statement and the Company’s right to suspend use of a prospectus under a registration statement under certain circumstances, including if the Company is pursuing a bona fide material acquisition, merger, reorganization, disposition or other similar transaction and the Company’s board of directors determines in good faith that the Company’s ability to pursue or consummate such a transaction would be materially and adversely affected by any required disclosure of such transaction in the registration statement (and such disclosure is then-required therein by applicable law, rule or regulation to permit offers and sales thereunder), the Company has experienced some other material non-public event the disclosure of which in the registration statement at such time, in the good faith judgment of the Company’s board of directors, would materially and adversely affect the Company (and such disclosure therein is then-required by applicable law, rule or regulation to permit offers and sales thereunder), or the Company’s board of directors shall have determined in good faith, upon the advice of counsel, that it is required by law, rule or regulation to
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file a post-effective amendment to such registration statement to reflect certain updated information of the type described in the Registration Rights Agreement. The Registration Rights Agreement provides certain time limitations on how long such delays may be implemented. The Company will generally pay all registration expenses in connection with its obligations under the Registration Rights Agreement, regardless of whether any sales are made pursuant to the applicable registration statement.
Anti-Takeover Effects of Provisions of Our Certificate of Incorporation, Our Bylaws and Delaware Law
Some provisions of Delaware law contain, and our certificate of incorporation and our bylaws contain, provisions that could make the following transactions more difficult: acquisitions of us by means of a tender offer, a proxy contest or otherwise or removal of our incumbent officers and directors. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection and our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
Delaware Law
Section 203 of the DGCL prohibits a Delaware corporation, including those whose securities are listed for trading on the NYSE American, from engaging in any business combination with any interested stockholder for a period of three years following the date that the stockholder became an interested stockholder, unless:
• | the transaction is approved by the board of directors before the date the interested stockholder attained that status; |
• | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or |
• | on or after such time the business combination is approved by the board of directors and authorized at a meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder. |
We have elected to not be subject to the provisions of Section 203 of the DGCL in our certificate of incorporation.
Our Certificate of Incorporation and Our Bylaws
Provisions of our certificate of incorporation and our bylaws may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our securities.
Among other things, our certificate of incorporation and bylaws include the following provisions:
• | establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 120 days prior to the first anniversary date of the mailing of notice of the annual meeting for the preceding year. Our bylaws will specify the requirements as to form and content of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting; |
• | provide our board of directors the ability to authorize undesignated preferred stock. This ability makes it possible for our board of directors to issue, without stockholder approval, preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of the Company. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management of our Company; |
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• | provide that the authorized number of directors may be changed only by resolution of the board of directors; |
• | provide that at any time after (i) certain investment funds managed by Yorktown Partners LLC (“Yorktown”), (ii) Boomer Petroleum, LLC (“Boomer”), (iii) Bluescape Riley Exploration Acquisition, LLC (“BREA”), (iv) Bluescape Riley Exploration Holdings LLC (“BREH” and together with BREA, “Bluescape”), and their respective affiliates, no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, our bylaws can be amended by the board of directors; |
• | provide that, at any time after Yorktown, Boomer, Bluescape and their respective affiliates no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, any action required or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing in lieu of a meeting of such stockholders, subject to the rights of the holders of any series of preferred stock with respect to such series (prior to such time, such actions may be taken without a meeting by written consent of holders of common stock having not less than the minimum number of votes that would be necessary to authorize such action at a meeting at which all shares entitled to vote thereon were present and voted); |
• | provide that, at any time after Yorktown, Boomer, Bluescape and their respective affiliates no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, our certificate of incorporation and bylaws may be amended by the affirmative vote of the holders of at least two-thirds of our then outstanding common stock (prior to such time, our certificate of incorporation and bylaws may be amended by the affirmative vote of the holders of a majority of our then-outstanding common stock); |
• | provide that we renounce any interest in existing and future investments in other entities by, or the business opportunities of, Yorktown, Boomer, Bluescape, or any of their officers, directors, agents, stockholders, members, partners, affiliates and subsidiaries (other than our directors that are presented business opportunities in their capacity as our directors) and that they have no obligation to offer us those investments or opportunities; |
• | provide that special meetings of our stockholders may only be called by a majority of the board of directors, the chief executive officer, or the chairman of the board; and |
• | provide that, at any time after Yorktown, Boomer, Bluescape, and their respective affiliates, no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, the affirmative vote of the holders of at least two-thirds of the voting power of all then outstanding common stock entitled to vote generally in the election of directors, voting together as a single class, shall be required to remove any or all of the directors from office and such removal may only be for cause (prior to such time, directors may be removed either with or without cause by the affirmative vote of holders of a majority of our outstanding stock entitled to vote). |
Forum Selection
Our bylaws provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for:
• | any derivative action or proceeding brought on our behalf; |
• | any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our stockholders; |
• | any action asserting a claim against us arising pursuant to any provision of the DGCL, our certificate of incorporation or our bylaws; or |
• | any action asserting a claim against us that is governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. |
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Our bylaws also provide that unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America will be the sole and exclusive forum for any stockholder to bring a complaint asserting a cause of action under the Securities Act or the Exchange Act.
Our bylaws also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and to have consented to, this forum selection provision. Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against our directors, officers, employees and agents. The enforceability of similar exclusive forum provisions in other companies’ certificates of incorporation or bylaws has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described above, a court could rule that this provision in our bylaws is inapplicable or unenforceable.
Listing
Our common stock is listed and traded on the NYSE American under the symbol “REPX.”
Transfer Agent and Registrar
The transfer agent and registrar for our securities is Continental Stock Transfer & Trust Company, LLC with a mailing address of 1 State Street, 30th Floor, New York, NY 10004-1561 and with a phone number of (212) 509-4000.
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DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus (the “debt securities”) will be general unsecured obligations of the Company. The Company may issue debt securities under an indenture to be entered into with a trustee we will name in the prospectus supplement relating to such securities, which we refer to in this prospectus as the indenture.
We have summarized the debt securities and select provisions that may be included in a future indenture below. This summary is not complete. We have filed the form of indenture with the SEC as an exhibit to the registration statement of which this prospectus is a part and you should read such indenture for provisions that may be important to you.
General
The indenture does not limit the amount of debt securities that may be issued under the indenture, and does not limit the amount of other unsecured debt or securities that may be issued. The issuer may issue debt securities under the indenture from time to time in one or more series, each in an amount authorized prior to issuance.
The debt securities will either constitute the issuer’s senior unsecured indebtedness and will rank equally in right of payment with all of the issuer’s other unsecured and unsubordinated debt and senior in right of payment to all of the issuer’s subordinated indebtedness, or constitute the issuer’s subordinated unsecured indebtedness and will rank junior to all of the issuer’s senior indebtedness and may rank equally with or senior to other subordinated indebtedness the issuer may issue from time to time. The debt securities will be effectively subordinated to, and thus have a junior position to, the issuer’s secured indebtedness with respect to the assets securing that indebtedness.
The indenture will not contain any covenants or other provisions designed to protect holders of the debt securities in the event the issuer participates in a highly leveraged transaction or upon a change of control. The indenture also will not contain provisions that give holders of the debt securities the right to require us to repurchase our securities in the event of a decline in our credit rating for any reason, including as a result of a takeover, recapitalization or similar restructuring or otherwise.
Terms
The prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following:
• | the guarantor of the debt securities, if any; |
• | whether the debt securities will be senior or subordinated debt securities; |
• | the price at which the issuer will issue the debt securities; |
• | the title of the debt securities; |
• | the total principal amount of the debt securities; |
• | whether the issuer will issue the debt securities in individual certificates to each holder or in the form of temporary or permanent global securities held by a depositary on behalf of holders; |
• | the date or dates on which the principal of and any premium on the debt securities will be payable; |
• | any interest rate, the date from which interest will accrue, interest payment dates and record dates for interest payments; |
• | whether and under what circumstances the issuer will pay any additional amounts with respect to the debt securities; |
• | the place or places where payments on the debt securities will be payable; |
• | any provisions for optional redemption or early repayment; |
• | any sinking fund or other provisions that would obligate the issuer to redeem, purchase or repay the debt securities; |
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• | the denominations in which the issuer will issue the debt securities if other than $1,000 and integral multiples of $1,000; |
• | whether payments on the debt securities will be payable in foreign currency or currency unit or another form and whether payments will be payable by reference to any index or formula; |
• | the portion of the principal amount of debt securities that will be payable if the maturity is accelerated, if other than the entire principal amount; |
• | any additional means of defeasance of the debt securities, any additional conditions or limitations to defeasance of the debt securities or any changes to those conditions or limitations; |
• | any changes or additions to the events of default or covenants described in this prospectus; |
• | any restrictions or other provisions relating to the transfer or exchange of debt securities; |
• | any terms for the conversion or exchange of the debt securities for other securities; and |
• | any other terms of the debt securities not inconsistent with the applicable indenture. |
The issuer may sell the debt securities at a discount, which may be substantial, below their stated principal amount. These debt securities may bear no interest or interest at a rate that at the time of issuance is below market rates. If the issuer sells these debt securities, the issuer will describe in the prospectus supplement any material United States federal income tax consequences and other special considerations.
If the issuer sells any of the debt securities for any foreign currency or currency unit or if payments on the debt securities are payable in any foreign currency or currency unit, the issuer will describe in the prospectus supplement the restrictions, elections, tax consequences, specific terms and other information relating to those debt securities and the foreign currency or currency unit.
Events of Default
Unless the issuer informs you otherwise in the applicable prospectus supplement, the following are events of default with respect to a series of debt securities:
• | failure to pay interest on any debt security of that series for 30 days when due; |
• | failure to pay principal of or any premium on any debt security of that series when due; |
• | failure to deposit any sinking fund payment for 30 days when due; |
• | failure to comply with any agreement in that series of debt securities or the indenture (other than an agreement or covenant that has been included in the indenture solely for the benefit of other series of debt securities) within 90 days after receipt of written notice by the trustee or by the holders of at least 25% in principal amount of the outstanding debt securities issued under the indenture that are affected by that failure; |
• | specified events involving bankruptcy, insolvency or reorganization of the issuer; and |
• | any other event of default provided for that series of debt securities. |
A default under one series of debt securities will not necessarily be a default under any other series. If a default or event of default for any series of debt securities occurs, is continuing and is known to the trustee, the trustee will notify the holders of applicable debt securities within 90 days after it occurs. The trustee may withhold notice to the holders of the debt securities of any default or event of default, except in any payment on the debt securities, if the trustee in good faith determines that withholding notice is in the interests of the holders of those debt securities.
If an event of default for any series of debt securities occurs and is continuing, the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of the series affected by the default (or, in some cases, 25% in principal amount of all debt securities issued under the indenture that are affected, voting as one class) may declare the principal of and all accrued and unpaid interest on those debt securities to be due and payable immediately. If an event of default relating to certain events of bankruptcy, insolvency or reorganization of the issuer occurs, the principal of and accrued and unpaid interest on all the debt securities issued under the indenture will become immediately due and payable without any action on the part of the trustee or any holder.
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At any time after a declaration of acceleration has been made, the holders of a majority in principal amount of the outstanding debt securities of the series affected by the default (or, in some cases, of all debt securities issued under the indenture that are affected, voting as one class) may in some cases rescind this accelerated payment requirement and its consequences.
A holder of a debt security of any series issued under the indenture may pursue any remedy under the indenture only if:
• | the holder has previously given to the trustee written notice of a continuing event of default with respect to such series; |
• | the holders of at least 25% in principal amount of the outstanding debt securities of that series make a written request to the trustee to pursue the remedy; |
• | the holders offer to the trustee indemnity satisfactory to the trustee against any loss, liability or expense; |
• | the trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and |
• | during that 60-day period, the holders of a majority in principal amount of the debt securities of that series do not give the trustee a direction inconsistent with the request. |
This provision does not, however, affect the right of a holder of a debt security to sue for enforcement of any overdue payment.
In most cases, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders unless those holders have offered to the trustee indemnity satisfactory to it. Subject to this provision for indemnification, the holders of a majority in principal amount of the outstanding debt securities of a series (or of all debt securities issued under the applicable indenture that are affected, voting as one class) generally may direct the time, method and place of:
• | conducting any proceeding for any remedy available to the trustee; or |
• | exercising any trust or power conferred on the trustee relating to or arising as a result of an event of default. |
If an event of default occurs and is continuing, the trustee will be required to use the degree of care and skill of a prudent person in the conduct of his own affairs.
The indentures require the issuer to furnish to the trustee annually a statement as to the issuer’s performance of certain of the issuer’s obligations under the indentures and as to any default in performance.
Defeasance and Discharge
Defeasance. When we use the term defeasance, we mean discharge from some or all of the issuer’s obligations under the indenture. If the issuer deposits with the trustee under the indenture any combination of money or government securities sufficient to make payments on the debt securities of a series issued under the indenture on the dates those payments are due, then, at the issuer’s option, either of the following will occur:
• | the issuer will be discharged from the issuer’s obligations with respect to the debt securities of that series (“legal defeasance”); or |
• | the issuer will no longer have any obligation to comply with specified restrictive covenants with respect to the debt securities of that series and the related events of default will no longer apply (“covenant defeasance”). |
If a series of debt securities is defeased, the holders of the debt securities of that series will not be entitled to the benefits of the applicable indenture, except for obligations to register the transfer or exchange of debt securities, replace stolen, lost or mutilated debt securities or maintain paying agencies and hold money for payment in trust. In the case of covenant defeasance, the issuer’s obligation to pay principal, premium and interest on the debt securities will also survive.
Unless the issuer informs you otherwise in the prospectus supplement, the issuer will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the debt
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securities to recognize income, gain or loss for U.S. federal income tax purposes and that the holders would be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the deposit and related defeasance had not occurred. If the issuer elects legal defeasance, that opinion of counsel must be based upon a ruling from the United States Internal Revenue Service or a change in law to that effect.
Satisfaction and Discharge. In addition, the indenture will cease to be of further effect with respect to the debt securities of a series issued under the indenture, subject to exceptions relating to compensation and indemnity of the trustee under the indenture and repayment to the issuer of excess money or government securities, when either:
• | all outstanding debt securities of that series have been delivered to the trustee for cancellation; or |
• | all outstanding debt securities of that series not delivered to the trustee for cancellation either: |
• | have become due and payable, |
• | will become due and payable at their stated maturity within one year, or |
• | are to be called for redemption within one year; and |
• | the issuer has deposited with the trustee any combination of money or government securities in trust sufficient to pay the entire indebtedness on the debt securities of that series when due, and has paid all other sums payable by the issuer with respect to the debt securities of that series. |
Book-Entry Debt Securities
The issuer may issue the debt securities of a series in the form of one or more global debt securities that would be deposited with a depositary or its nominee identified in the prospectus supplement. The issuer may issue global debt securities in either temporary or permanent form. The issuer will describe in the prospectus supplement the terms of any depositary arrangement and the rights and limitations of owners of beneficial interests in any global debt security.
Governing Law
New York law will govern the indenture and the debt securities.
The Trustee
The issuer will name the trustee under the indenture in the prospectus supplement. The trustee will be qualified to act under the Trust Indenture Act of 1939, as amended.
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We may issue warrants for the purchase of shares of our common stock or shares of our preferred stock. The following description sets forth certain general terms and provisions of the warrants that we may offer pursuant to this prospectus. The particular terms of the warrants and the extent, if any, to which the general terms and provisions may apply to the warrants so offered will be described in the applicable prospectus supplement.
Warrants may be issued independently or together with other securities and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
A copy of the forms of the warrant agreement and the warrant certificate, if any, relating to any particular issue of warrants will be filed with the SEC each time we issue warrants, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the warrant agreement and the related warrant certificate, if any, see “Where You Can Find More Information.”
Stock Warrants
The prospectus supplement relating to a particular issue of warrants to issue shares of our common stock or shares of our preferred stock will describe the terms of the common share warrants and preferred share warrants, including the following:
• | the title of the warrants; |
• | the offering price for the warrants, if any; |
• | the aggregate number of the warrants; |
• | the designation and terms of the shares of common stock or shares of preferred stock that may be purchased upon exercise of the warrants; |
• | the terms for changes or adjustments to the exercise price of the warrants; |
• | if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security; |
• | if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
• | the number of shares of common stock or shares of preferred stock that may be purchased upon exercise of a warrant and the price at which the shares may be purchased upon exercise; |
• | the dates on which the right to exercise the warrants commence and expire; |
• | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
• | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
• | if applicable, a discussion of material U.S. federal income tax considerations; |
• | anti-dilution provisions of the warrants, if any; |
• | redemption or call provisions, if any, applicable to the warrants; |
• | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and |
• | any other information we think is important about the warrants. |
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase at the exercise price set forth in the applicable prospectus supplement the number of shares of common stock or shares of preferred stock being offered. Holders may exercise warrants at any time up to the close of business on the expiration date set forth in the applicable
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prospectus supplement. After the close of business on the expiration date, unexercised warrants are void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered.
Until a holder exercises the warrants to purchase our shares of common stock or shares of preferred stock, the holder will not have any rights as a holder of our shares of common stock or shares of preferred stock, as the case may be, by virtue of ownership of warrants.
We may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement, if any, under which a unit is issued may provide that the securities comprising the unit may not be held or transferred separately, at any time or at any time before a specified date. If applicable, we will file with the SEC as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a Current Report on Form 8-K filed with the SEC, any unit agreement describing the terms and conditions of such units that we are offering before the issuance of such units.
The particular terms and provisions of units offered by any prospectus supplement, and the extent to which the general terms and provisions described below may apply thereto, will be described in the prospectus supplement filed in respect of such units. This description will include, where applicable:
• | the designation and aggregate number of units offered; |
• | the price at which the units will be offered, including provisions for changes to or adjustments in price at which units will be offered; |
• | the currency or currency unit in which the units are denominated; |
• | the amount of units outstanding; |
• | the terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
• | the number of securities that may be purchased upon exercise of each unit and the price at which and currency or currency unit in which that amount of securities may be purchased upon exercise of each unit; |
• | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
• | any other material terms, conditions and rights (or limitations on such rights) of the units. |
We reserve the right to set forth in a prospectus supplement specific terms of the units that are not within the options and parameters set forth in this prospectus. In addition, to the extent that any particular terms of the units described in a prospectus supplement differ from any of the terms described in this prospectus, the description of such terms set forth in this prospectus shall be deemed to have been superseded by the description of such differing terms set forth in such prospectus supplement with respect to such units.
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We may issue rights to our stockholders to purchase shares of our common stock or preferred stock. We may offer rights separately or together with one or more additional rights, preferred stock, common stock, or warrants, or any combination of those securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description sets forth certain general terms and provisions of the rights. The particular terms of the rights and the extent, if any, to which the general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement, or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights certificate for additional information before you decide whether to purchase any of our rights.
We will provide in a prospectus supplement the following terms of the rights being issued:
• | the date on which stockholders entitled to the rights distribution will be determined; |
• | the aggregate number of shares of common stock or preferred stock purchasable upon exercise of the rights; |
• | the aggregate number of rights issued; |
• | the date, if any, on and after which the rights will be separately transferable; |
• | the date on which the ability to exercise the rights will commence, and the date on which such ability will expire; |
• | the conditions to the completion of the offering, if any; |
• | the withdrawal, termination, and cancellation rights, if any; |
• | any applicable material U.S. federal income tax considerations; and |
• | any other terms of the rights, including terms, procedures and limitations relating to the distribution, exchange, and exercise of the rights. |
Each right will entitle the holder of rights to purchase, for cash, the number of shares of common stock or preferred stock at the exercise price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of common stock or preferred stock, as applicable, purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
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(CONFLICTS OF INTEREST)
We may use this prospectus and any accompanying prospectus supplement to sell our securities from time to time as follows:
• | in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise; |
• | through a combination of any of these methods or any other method permitted by applicable law. |
In addition, we may enter into derivative or hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. In connection with such a transaction, the third parties may sell securities covered by and pursuant to this prospectus and any accompanying prospectus supplement. If so, the third party may use securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short positions. We may also loan or pledge securities covered by this prospectus and any accompanying prospectus supplement to third parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant to this prospectus and any accompanying prospectus supplement.
We, or agents designated by us, may directly solicit, from time to time, offers to purchase our securities. Any such agent may be deemed to be an underwriter as that term is defined in the Securities Act. We will name the agents involved in the offer or sale of our securities and describe any commissions payable by us to these agents in the applicable prospectus supplement. Unless otherwise indicated in the applicable prospectus supplement, these agents will be acting on a best efforts basis for the period of their appointment. The agents may be entitled under agreements which may be entered into with us to indemnification by us against specific civil liabilities, including liabilities under the Securities Act. The agents may also be our customers or may engage in transactions with or perform services for us in the ordinary course of business.
If we utilize any underwriters in the sale of our securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement with those underwriters at the time of sale to them. We will set forth the names of these underwriters and the terms of the transaction in the applicable prospectus supplement, which will be used by the underwriters to make resales of our securities in respect of which this prospectus is delivered to the public. We may indemnify the underwriters under the relevant underwriting agreement against specific liabilities, including liabilities under the Securities Act. The underwriters may also be our customers or may engage in transactions with or perform services for us in the ordinary course of business.
If we utilize a dealer in the sale of our securities in respect of which this prospectus is delivered, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. We may indemnify the dealers against specific liabilities, including liabilities under the Securities Act. The dealers may also be our customers or may engage in transactions with or perform services for us in the ordinary course of business.
Agents could make sales in privately negotiated transactions and/or by any other method permitted by law, including sales deemed to be “at-the-market” offerings as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the NYSE American, the existing trading market for our securities, or sales made to or through a market maker other than on an exchange.
To the extent that we make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a sales agency financing agreement or other at-the-market offering arrangement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to any such agreement, we will issue and sell our securities through one or more underwriters or agents, which may act on an agency basis or on a principal basis.
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During the term of any such agreement, we may sell securities on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The agreement will provide that any securities sold will be sold at prices related to the then prevailing market prices for our securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms of the agreement, we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our securities. The terms of each such agreement will be set forth in more detail in a prospectus supplement to this prospectus. In the event that any underwriter or agent acts as principal, or broker-dealer acts as underwriter, it may engage in certain transactions that stabilize, maintain or otherwise affect the price of our securities. We will describe any such activities in the prospectus supplement relating to the transaction.
The place and time of delivery for our securities in respect of which this prospectus is delivered will be set forth in the applicable prospectus supplement.
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The validity of the issuance of our securities by this prospectus will be passed upon by our counsel, Holland & Knight LLP, Dallas, Texas.
The consolidated financial statements of Riley Exploration Permian, Inc. as of December 31, 2023 and 2022 and for the years then ended and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2023 incorporated by reference in this prospectus and registration statement have been so incorporated in reliance on the reports of BDO USA, P.C., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The information incorporated by reference in this prospectus and registration statement regarding estimated quantities of reserves of the Company, the future net revenues from those reserves and their present value as of December 31, 2023 is based on the reserve reports prepared by Ryder Scott Company, L.P., Riley Permian’s independent petroleum engineers given the authority of such firm as an expert in these matters.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and current reports, proxy statements, and other information with the SEC. The SEC maintains a web site, located at www.sec.gov, that contains reports, proxy and information statements and other information regarding registrants, including us, that file electronically. You may also inspect our SEC records at our website at www.rileypermian.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of this prospectus, any prospectus supplement, the registration statement or any other report or document we file with or furnish to the SEC.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus. Information that we later provide to the SEC, and which is deemed to be “filed” with the SEC, will automatically update and may replace information in this prospectus, until the termination of the offering of the securities described in this prospectus.
The documents listed below and any future filings made by Riley Permian with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding those furnished to the SEC on Form 8-K), including all such documents we may file with the SEC after the date of the initial registration and prior to the effectiveness of the registration statement, are incorporated by reference in this prospectus, until the termination of each offering under this prospectus:
• | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 6, 2024, as amended by our Annual Report on Form 10-K/A, filed with the SEC on April 3, 2024; |
• | Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 8, 2024; |
• | Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 22, 2024; |
• | Our Current Reports on Form 8-K, as filed with the SEC on April 8, 2024 and April 26, 2024 (excluding any information furnished pursuant to Item 2.02 or Item 7.01 and related exhibits furnished under Item 9.01); and |
• | The description of our securities contained in the Registration Statement on Form 10-SB12G filed August 7, 1997 (File No. 000-29386) and any amendment or report filed with the SEC for the purpose of updating such description, including Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 6, 2024. |
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We undertake to provide without charge to any person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon oral or written request of such person, a copy of any or all of the documents that have been incorporated by reference in this prospectus, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference as an exhibit in this prospectus. You should direct requests for documents to us at the following address:
Riley Exploration Permian, Inc.
29 E. Reno Avenue, Suite 500
Oklahoma City, OK 73104
Attention: Philip Riley
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Riley Exploration Permian, Inc.
$250,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Units
Rights
PROSPECTUS
, 2024
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated May 10, 2024
PROSPECTUS
12,037,813 Shares
Common Stock
This prospectus relates solely to the resale from time to time of up to an aggregate of 12,037,813 shares of our common stock, par value $0.001 per share (“common stock”), by the selling stockholders identified in this prospectus and any other selling stockholder that may be identified in any applicable prospectus supplement (the “selling stockholders”). All of these shares of common stock are being sold by the selling stockholders named in this prospectus, or their respective transferees, pledgees, donees or successors-in-interest, and were originally issued to selling stockholders at the closing of the Merger (as defined herein). We are registering the shares offered by this prospectus for resale pursuant to, among other things, the Registration Rights Agreement (as defined below). Unless otherwise indicated in any applicable prospectus supplement, the selling stockholders will receive all proceeds from any sales of shares of common stock by the selling stockholders, and we will not receive any proceeds from any such sales. Under the terms of the Registration Rights Agreement, we are required to pay certain offering fees and expenses in connection with the registration of the selling stockholders’ securities and to indemnify the selling stockholders against certain liabilities. For more information related to the selling stockholders, please read “Selling Stockholders.”
The selling stockholders may offer and sell the common stock from time to time as they may determine through public or private transactions or through other means described in the section entitled “Plan of Distribution” at prevailing market prices, at prices related to prevailing market prices or at privately negotiated prices. The selling stockholders may sell the common stock directly or through underwriters or dealers and also to other purchasers or through agents. The names of any underwriters or agents that are included in a sale of our common stock to you, and any applicable commissions or discounts, will be stated in any accompanying prospectus supplement. In addition, the underwriters, if any, may over-allot a portion of the securities. This prospectus does not necessarily mean that the selling stockholders will offer or sell the shares. We cannot predict when or in what amounts the selling stockholders may sell any of the shares offered by this prospectus.
We encourage you to carefully read this prospectus and any applicable prospectus supplement before you invest in our common stock. We also encourage you to read the documents we have referred you to in the “Where You Can Find More Information” section of this prospectus for information on us and for our financial statements. This prospectus may not be used to consummate sales of our common stock unless accompanied by a prospectus supplement.
Our common stock is traded on the NYSE American under the symbol “REPX.” On May 9, 2024, the last reported sales price of our common stock was $27.72 per share. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
Investing in our securities involves risks and uncertainties. You should carefully review the discussion under the heading “Risk Factors” beginning on page
3 of this prospectus regarding information included and incorporated by reference in this prospectus and any applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024
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Unless the context requires otherwise, references in this prospectus to “Riley Exploration Permian, Inc.,” “Riley Permian,” the “Company,” the “Registrant,” “we,” “us,” “our” and similar terms refer to Riley Exploration Permian, Inc. and its consolidated subsidiaries.
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, the selling stockholders may, over time, offer and sell up to 12,037,813 shares of our common stock in one or more offerings. This prospectus provides a general description of the common stock. Each time any of the selling stockholders sell our common stock, such selling stockholders may provide a prospectus supplement that will contain specific information about the terms of that offering and may include a discussion of any risk factors or other special considerations that apply to the common stock offered. The prospectus supplement may also add to, update or change the information contained in this prospectus. If there is any inconsistency between the information in this prospectus and any applicable prospectus supplement, you should rely on the information in the applicable prospectus supplement. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to the offering. Please carefully read this prospectus, any applicable prospectus supplement, any free writing prospectus that we authorize to be distributed to you, and any information incorporated by reference herein or therein, together with additional information described under the headings “Incorporation of Certain Information by Reference” and “Where You Can Find More Information,” before buying any of the common stock offered under this prospectus.
You should rely only on the information contained in this prospectus and in any relevant prospectus supplement or free writing prospectus, including any information incorporated herein or therein by reference. Neither we nor the selling stockholders have authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information in this prospectus, any accompanying prospectus supplement, any free writing prospectus or any document incorporated by reference is accurate as of any date other than the date on its front cover. Our business, financial condition, results of operations and prospects may have changed since the date indicated on the front cover of such documents. We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference into this prospectus or any applicable prospectus supplement or free writing prospectus were made solely for the benefit of the parties to such agreement on the date thereof, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made or expressly referenced therein.
This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. In addition, the market and industry data and forecasts that may be included or incorporated by reference in this prospectus, any applicable prospectus supplement or any applicable free writing prospectus may involve estimates, assumptions and other risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus, the applicable prospectus supplement and any applicable free writing prospectus, and under similar headings in other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
Neither this prospectus nor any prospectus supplement or free writing prospectus constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities to which they relate, nor does this prospectus or a prospectus supplement or free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
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ABOUT RILEY EXPLORATION PERMIAN, INC.
Overview
Riley Exploration Permian, Inc., together with its wholly-owned subsidiaries, is a growth-oriented, independent oil and natural gas company focused on the acquisition, exploration, development and production of oil, natural gas and natural gas liquids (“NGLs”) in Texas and New Mexico. The majority of our acreage is located in Yoakum County, Texas and Eddy County, New Mexico.
We focus on horizontal drilling and completions applied to conventional formations in the Permian Basin. Our principal business objective is to deliver long-term shareholder value by development of our existing assets and continuous improvement of our operating capabilities and cost structure by utilizing our extensive technical expertise. We also look for opportunities to add to our drilling inventory through acquisitions that meet our strategic and financial objectives. We believe such growth and corresponding increase in scale can lead to additional operating cost efficiencies.
Management prioritizes corporate sustainability and positioning the Company for success in both the near-term and long-term with initiatives focused on existing business and the transitioning energy landscape. Our strategic objectives include enhancing the rate of return on our invested capital, generating sustainable free cash flow, maintaining a strong and flexible balance sheet and maximizing returns to our shareholders. We implement this strategy primarily through identification and capture of attractive development opportunities, optimization of our assets and operations and continuous improvement of our cost structure.
Corporate Information
We were formed as a Delaware limited liability company, Riley Exploration – Permian, LLC (“REP LLC”), in 2016. In February 2021, REP LLC consummated a merger pursuant to which REP LLC became a wholly-owned subsidiary of Tengasco, Inc., a Delaware corporation (“Tengasco”), and Tengasco changed its name to Riley Exploration Permian, Inc. (the “Merger”). Our organizational structure includes wholly-owned consolidated subsidiaries through which our operations are conducted, including without limitation, REP LLC and Riley Permian Operating Company, LLC, a Delaware limited liability company. Our executive offices are located at 29 E. Reno Ave., Suite 500, Oklahoma City, Oklahoma 73104, and the phone number at this address is (405) 415-8699. Our website address is www.rileypermian.com. Information on our website or any other website is not incorporated by reference into, and does not constitute a part of, this prospectus. We make our periodic reports and other information filed with or furnished to the SEC available free of charge through our website as soon as reasonably practicable after those reports and other information are electronically filed with or furnished to the SEC.
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Investing in our common stock involves risks. Before you make a decision to buy our common stock, in addition to the risks and uncertainties discussed below and under “Cautionary Statement Regarding Forward-Looking Statements,” you should carefully consider the specific risks set forth under the caption “Risk Factors” in any applicable prospectus supplement, as well as information included in our most recent Annual Report on Form 10-K, any subsequently filed Quarterly Reports on Form 10-Q and any subsequently filed Current Reports on Form 8-K, as incorporated herein by reference. If any of these risks actually occur, it may materially harm our business, financial condition, liquidity and results of operations. As a result, the market price of our securities could decline, and you could lose all or part of your investment. Additionally, the risks and uncertainties described in this prospectus, any prospectus supplement or in any document incorporated by reference herein or therein are not the only risks and uncertainties that we face. Additional risks and uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business.
Sales of substantial amounts of our common stock by the selling stockholders, or the perception that these sales could occur, could adversely affect the price of our common stock.
We are registering the offer and sale of the common stock covered by this prospectus to, among other things, satisfy the registration rights we granted to the selling stockholders, so that the common stock may be offered for sale into the public market by the selling stockholders. Further, we have previously registered for resale additional shares of common stock held by other stockholders pursuant to an effective registration statement. Subject to certain exceptions, we may be obligated to keep this prospectus current so that the shares of common stock covered by this prospectus can be sold in the public market at any time. The number of shares of common stock covered by this prospectus is significant in relation to our currently outstanding common stock and the historical trading volume of our common stock. The sale by the selling stockholders of all or a significant portion of the shares of common stock covered by this prospectus, or the sale by us of substantial amounts of our common stock in the public market covered by a separate prospectus or the issuance of shares of our common stock from time to time as consideration for future acquisitions and investments and pursuant to compensation and incentive plans, could have a material adverse effect on the market price of our common stock. In addition, the perception in the public markets that the selling stockholders might sell all or a portion of the shares of common stock covered by this prospectus could also, in and of itself, have a material adverse effect on the market price of our common stock.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated herein by reference contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The statements contained in and incorporated by reference into this prospectus that are not historical facts are forward-looking statements that represent management’s beliefs and assumptions based on currently available information. Forward-looking statements include information concerning our possible or assumed future results of operations, business strategies, need for financing, competitive position and potential growth opportunities. Our forward-looking statements do not consider the effects of future legislation or regulations. Forward-looking statements include all statements that are not historical facts and can be identified by the use of forward-looking terminology such as the words “believes,” “intends,” “may,” “should,” “anticipates,” “expects,” “could,” “plans,” “estimates,” “projects,” “targets” or comparable terminology or by discussions of strategy or trends. Although we believe that the expectations reflected in such forward-looking statements are reasonable, we cannot give any assurances that these expectations will prove to be correct. Such statements by their nature involve risks and uncertainties that could significantly affect expected results, and actual future results could differ materially from those described in such forward-looking statements.
Among the factors that could cause actual future results to differ materially are the risks and uncertainties discussed in this prospectus, any prospectus supplement and in the documents incorporated herein or therein by reference. While it is not possible to identify all factors, we continue to face many risks and uncertainties including, but not limited to:
Risks Related to Our Business Operations, and Strategy
• | An extended decline in commodity prices may adversely affect our business, financial condition, results of operations, ability to meet our capital expenditure obligations and financial commitments, and the value of our reserves. |
• | We may be unable to obtain required capital or financing on satisfactory terms in order to fund our exploration and development projects, which could lead to a decline in our reserves. |
• | Our exploration and development efforts may not be profitable or achieve our targeted returns. |
• | Properties we acquire may not produce as projected, and may subject us to liabilities. |
• | Uncertainties could materially alter the occurrence or timing of drilling of our identified drilling locations. |
• | Reserve estimates depend on many assumptions that may turn out to be inaccurate. |
• | We are vulnerable to risks associated with operating in one major geographic area. |
• | We may not be able to access on commercially reasonable terms or otherwise truck transportation, pipelines, gas gathering, transmission, storage and processing facilities to market our oil and natural gas production. |
• | Our estimated proved undeveloped reserves may not be ultimately developed or produced if their development is costlier or more time consuming than expected. |
• | We may be unable or fail to successfully integrate acquired assets into our operations and development activities. |
• | There may be potential delays in the development, construction or start-up of planned projects. |
• | Unless we replace our reserves with new reserves and develop those reserves, our reserves and production will decline. |
• | Our undeveloped acreage must be drilled before lease expirations to hold the acreage by production, which could result in a substantial lease renewal cost or loss of our lease and prospective drilling opportunities. |
• | Funding through capital market transactions may be difficult and expensive due to our small public float, low market capitalization, and limited operating history. |
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• | Covenants in our revolving credit facility may restrict our business and financing activities and our ability to declare dividends. |
• | We may not be able to generate sufficient cash to service all of our indebtedness. |
• | Our derivative activities could result in financial losses or could reduce our earnings. |
Risks Related to the Oil and Natural Gas Industry
• | Conservation measures, alternative sources of energy and technological advances could reduce demand for oil, natural gas and NGLs. |
• | Shortages or cost increases related to equipment, supplies or qualified personnel could delay or cause us to incur significant expenditures that are not provided for in our capital budget, which could have a material adverse effect on our business, financial condition or results of operations. |
• | Negative public perception regarding us and/or our industry could have an adverse effect on our operations. |
• | General domestic and international economic, market and political conditions, including the military conflict between Russia and Ukraine, the Israel-Hamas conflict, and the global response to such conflicts may negatively impact us. |
Risks Related to Public Health, Acts of God, and Cybersecurity
• | Our business and operations may be adversely affected by public health crises, such as pandemics and epidemics. |
• | Power outages or limits and increased energy costs could have a material adverse effect on us. |
• | Extreme weather conditions could adversely affect our business and operations. |
• | Our business could be negatively affected by security threats, including cybersecurity threats, and other disruptions. |
Risks Related to Legal, Regulatory, and Tax Matters
• | Regulations related to environmental and occupational health and safety issues could adversely affect the cost, manner or feasibility of conducting our operations. |
• | We are responsible for the decommissioning, plugging, abandonment, and reclamation costs for our facilities. |
• | Increased regulation of our oil and natural gas assets could cause our revenues to decline and operating expenses to increase. |
• | Regulatory initiatives relating to hydraulic fracturing, regulation of greenhouse gases, water conservation, seismic activity, weatherization, or protection of certain species of wildlife, or of sensitive environmental areas could result in increased costs and/or decreased production. |
• | New or increased taxes or fees on oil and natural gas extraction or production or changes in our effective tax rate, could adversely impact us. |
Risks Related to Our Common Stock
• | The market price of our common stock may be volatile, which could cause the value of an investment in our stock to decline. |
• | If we fail to continue to meet NYSE American listing requirements, our common stock could be delisted from trading, which would decrease the liquidity of our common stock and ability to raise additional capital. |
• | Our quarterly cash dividends, if any, may vary significantly both quarterly and annually. |
• | Our board of directors may modify or revoke our dividend policy at any time at its discretion. |
• | Available cash for dividends depends primarily on our cash flow and not solely on our profitability, which may prevent us from paying dividends, even during periods in which we record net income. |
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Risks Related to the Company
• | Our business and operations could be adversely affected if we lose key personnel. |
• | Our executive officers, directors and principal stockholders have the ability to control or significantly influence all matters submitted to the Company’s stockholders for approval. |
• | Conflicts of interest could arise in the future between us, on the one hand, and certain of our stockholders and their respective affiliates. |
• | Cybersecurity threats, technology system failures and data security issues could impair our ability to operate, adversely affect our business, and damage our brand and reputation. |
All forward-looking statements speak only as of the date of this prospectus. We do not undertake any obligation to publicly release any revisions to these forward-looking statements regarding new information, future events or otherwise, except as required by applicable securities laws. You should not place undue reliance on these forward-looking statements. These forward-looking statements are subject to a number of risks, uncertainties and assumptions. Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. Although we believe that our plans, intentions and expectations reflected in or suggested by the forward-looking statements we make in this prospectus, any prospectus supplement, and any documents incorporated herein or therein by reference are reasonable, we can give no assurance that these plans, intentions or expectations will be achieved or occur, and actual results could differ materially and adversely from those anticipated or implied by the forward-looking statements.
Reserve engineering is a process of estimating underground accumulations of oil and natural gas that cannot be measured in an exact way. The accuracy of any reserve estimate depends on the quality of available data, the interpretation of such data and the price and cost assumptions made by our reserve engineers. In addition, the results of drilling, testing and production activities may justify revisions of estimates that were made previously. If significant, such revisions would change the schedule of any further production and development drilling. Accordingly, reserve estimates may differ from the quantities of oil and natural gas that are ultimately recovered.
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We will not receive any proceeds from the sale by selling stockholders of our common stock. We are required to pay certain offering fees and expenses in connection with the registration of the selling stockholders’ securities and to indemnify the selling stockholders against certain liabilities.
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This prospectus covers the offering for resale from time to time of up to 12,037,813 shares of our common stock owned by the selling stockholders listed in the third column of the “Selling Stockholders” table below. We are fulfilling the registration rights granted under the second amended and restated registration rights agreement dated as of October 7, 2020 (the “Registration Rights Agreement”) by registering the 12,037,813 shares of our common stock covered by this prospectus. Throughout this prospectus, when we refer to the selling stockholders in this prospectus we are referring to the holders of registration rights under the Registration Rights Agreement and, as applicable, their permitted transferees or other successors-in-interest that may be identified in a supplement to this prospectus or, if required, a post-effective amendment to the registration statement of which this prospectus is a part. See “Description of Capital Stock - Registration Rights” for additional information regarding the Registration Rights Agreement. The selling stockholders will have the right to sell, resell or otherwise dispose of the portion of their shares registered hereunder in a manner contemplated by “Plan of Distribution” in this prospectus (as amended or supplemented).
We may supplement this prospectus from time to time in the future to update or change this list of selling stockholders and the number of shares of common stock that may be offered and sold by them. The selling stockholders may sell some, all or none of their shares. We do not know how long the selling stockholders will hold the shares before selling them, and we currently have no agreements, arrangements or understandings with the selling stockholders regarding the sale or other disposition of any of the shares. The shares covered hereby may be offered from time to time by the selling stockholders.
We will bear all costs, fees and expenses incurred in connection with the registration of the common stock offered by this prospectus, other than brokerage commissions and similar selling expenses, if any, attributable to the sale of the common stock, which will be borne by the selling stockholders.
The information contained in the table below in respect of the selling stockholders (including the number of shares of common stock beneficially owned and the number of shares of common stock offered) is as of April 15, 2024. Such information has been obtained from the selling stockholders and has not been independently verified by us.
The information set forth in the following table regarding the beneficial ownership after resale of the shares of common stock is based upon the assumption that the selling stockholders will sell all of the shares of common stock beneficially owned by them that are covered by this prospectus.
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Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to shares of common stock and the right to acquire such voting or investment power within 60 days through the exercise of any option, warrant or other right. Unless otherwise indicated below, to our knowledge, all persons named in the table have sole voting and investment power with respect to the shares of common stock beneficially owned by them. Except as described in the footnotes to the following table, none of the persons named in the table has held any position or office or had any other material relationship with us or our affiliates during the three years prior to the date of this prospectus. The inclusion of any shares of common stock in this table does not constitute an admission of beneficial ownership for the person named below.
Riley Exploration Group, LLC(3) | | | 1,965,219 | | | 9.2% | | | 1,965,219 | | | — | | | — |
Yorktown Energy Partners VIII, L.P.(4) | | | 575,254 | | | 2.7% | | | 575,254 | | | — | | | — |
Yorktown Energy Partners X, L.P.(5) | | | 390,860 | | | 1.8% | | | 390,860 | | | | | | |
Yorktown Energy Partners XI, L.P.(6) | | | 1,784,113 | | | 8.3% | | | 1,784,113 | | | — | | | — |
Balmon Investments, Ltd.(7) | | | 2,194,921 | | | 10.2% | | | 1,768,702 | | | 426,219 | | | 2.0% |
Dernick Encore, LLC | | | 471,672 | | | 2.2% | | | 471,672 | | | — | | | — |
Bluescape Riley Exploration Holdings LLC(8) | | | 4,521,767 | | | 21.0% | | | 4,521,767 | | | — | | | — |
Stephen Harry Dernick Trust | | | 93,873 | | | * | | | 93,873 | | | — | | | — |
David Dwight Dernick Trust | | | 120,971 | | | * | | | 120,971 | | | — | | | — |
Bobby D. Riley(9)(10) | | | 391,678 | | | 1.8% | | | 137,247 | | | 254,431 | | | 1.2% |
Dennis W. Bartoskewitz | | | 33,378 | | | * | | | 33,378 | | | — | | | — |
Robert Gary Dernick Trust | | | 14,079 | | | * | | | 14,079 | | | — | | | — |
Christopher M. Bearrow | | | 688 | | | * | | | 688 | | | — | | | — |
Kevin Riley(10)(11) | | | 202,726 | | | * | | | 77,134 | | | 125,592 | | | * |
James J. Doherty, Jr.(12) | | | 79,372 | | | * | | | 65,767 | | | 13,605 | | | * |
Corey Riley(10)(13) | | | 149,337 | | | * | | | 6,941 | | | 142,396 | | | * |
Michael Palmer(10)(14) | | | 18,572 | | | * | | | 3,414 | | | 15,158 | | | * |
Darrell D. Stovall | | | 2,017 | | | * | | | 2,017 | | | — | | | — |
Charles R. Sampson | | | 1,935 | | | * | | | 1,935 | | | — | | | — |
Kevin S. Vaught | | | 1,817 | | | * | | | 1,817 | | | — | | | — |
Denis Y. McDaniel-Lamkin | | | 122 | | | * | | | 122 | | | — | | | — |
Wayne C. Gosnell | | | 121 | | | * | | | 121 | | | — | | | — |
William Clay Mullins | | | 722 | | | * | | | 722 | | | — | | | — |
| | | 13,015,214 | | | | | | 12,037,813 | | | | | | |
*
| Represents less than 1%. |
(1)
| Percentage of beneficial ownership is based upon 21,587,852 shares of common stock outstanding as of April 15, 2024. Because the selling stockholders are not obligated to sell any portion of the shares of our common stock shown as offered by them, we cannot estimate the actual number or percentage of shares of our common stock that will be held by the selling stockholders upon completion of this offering. However, for purposes of this table, we have assumed that, after completion of the offering, none of the shares covered by the Prospectus will be held by the selling stockholders but that the selling stockholders will continue to held all other shares owned by them. |
(2)
| Represents the maximum number of shares being registered on behalf of the selling stockholder, which may be less than the total number of shares beneficially owned by such selling stockholder. |
(3)
| Certain investment funds managed by Yorktown Partners LLC own an aggregate of approximately 13.08% of Riley Exploration Group, LLC. The address of Riley Exploration Group, LLC is 109 N. Main St., #100, La Grange, Texas 78945. |
(4)
| Yorktown VIII Associates LLC is the sole general partner of Yorktown VIII Company LP, the sole general partner of Yorktown Energy Partners VIII, L.P. The managers of Yorktown VIII Associates LLC, who act by majority approval, are Bryan H. Lawrence, one of the Company’s directors, W. Howard Keenan, Jr., Peter A. Leidel, Tomás R. LaCosta and Robert A. Signorino. As a result, Yorktown VIII Associates LLC may be deemed to have the power to vote or direct the vote or to dispose or direct the disposition of the Company common stock owned by Yorktown Energy Partners VIII, L.P. Yorktown VIII Associates LLC and Yorktown VIII Company LP. |
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disclaim beneficial ownership of the Company common stock held by Yorktown Energy Partners VIII, L.P. in excess of their pecuniary interests therein. The managers of Yorktown VIII Associates LLC disclaim beneficial ownership of the Company common stock owned by Yorktown Energy Partners VIII, L.P. The address of such Yorktown entities is 410 Park Avenue, 20th Floor, New York, New York 10022.
(5)
| Yorktown X Company LP is the sole general partner of Yorktown Energy Partners X, L.P. Yorktown X Associates LLC is the sole general partner of Yorktown X Company LP. The managers of Yorktown X Associates LLC, who act by majority approval, are Bryan H. Lawrence, one of the Company’s directors, W. Howard Keenan, Jr., Peter A. Leidel, Tomás R. LaCosta, Robert A. Signorino and Bryan R. Lawrence. As a result, Yorktown X Associates LLC may be deemed to share the power to vote or direct the vote or to dispose or direct the disposition of the Company common stock owned by Yorktown Energy Partners X, L.P. Yorktown XI Company LP and Yorktown X Associates LLC disclaim beneficial ownership of the Company common stock held by Yorktown Energy Partners X, L.P. in excess of their pecuniary interest therein. The managers of Yorktown X Associates LLC disclaim beneficial ownership of the Company common stock to be held by Yorktown Energy Partners X, L.P. The address of such funds is 410 Park Avenue, 20th Floor, New York, New York 10022. |
(6)
| Yorktown XI Company LP is the sole general partner of Yorktown Energy Partners XI, L.P. Yorktown XI Associates LLC is the sole general partner of Yorktown XI Company LP. The managers of Yorktown XI Associates LLC, who act by majority approval, are Bryan H. Lawrence, one of the Company’s directors, W. Howard Keenan, Jr., Peter A. Leidel, Tomás R. LaCosta, Robert A. Signorino and Bryan R. Lawrence. As a result, Yorktown XI Associates LLC may be deemed to share the power to vote or direct the vote or to dispose or direct the disposition of the Company common stock owned by Yorktown Energy Partners XI, L.P. Yorktown XI Company LP and Yorktown XI Associates LLC disclaim beneficial ownership of the Company common stock held by Yorktown Energy Partners XI, L.P. in excess of their pecuniary interest therein. The managers of Yorktown XI Associates LLC disclaim beneficial ownership of the Company common stock to be held by Yorktown Energy Partners XI, L.P. The address of such funds is 410 Park Avenue, 20th Floor, New York, New York 10022. |
(7)
| Balmon Investments, Ltd. is owned by Alvin G. Libin. Alvin G. Libin is the indirect beneficial owner of the securities held by Balmon Investments, Ltd. The address of Balmon Investments, Ltd. is 3200 255 5th Avenue SW, Calgary, Alberta, Canada T2P 3G6. |
(8)
| Bluescape Riley Exploration Holdings LLC is a Delaware limited liability company and beneficially owns Company common stock. Bluescape Energy Recapitalization and Restructuring Fund III LP has voting and dispositive power over the Company’s common stock held Bluescape Riley Exploration Holdings LLC and therefore may also be deemed to be the beneficial owner of these shares. Bluescape Energy Partners III GP LLC is the sole general partner of Bluescape Energy Recapitalization and Restructuring Fund III LP and may be deemed to share voting and dispositive power over these shares and therefore may also be deemed to be the beneficial owner of these shares. Bluescape Resources GP Holdings LLC is the manager of Bluescape Energy Partners III GP LLC and may be deemed to share voting and dispositive power over these shares and therefore may also be deemed to be the beneficial owner of these shares. Charles John Wilder, Jr., the manager of Bluescape Resources GP Holdings LLC, may be deemed to share voting and dispositive power over these shares and therefore may also be deemed to be the beneficial owner of these shares. Each of Bluescape Riley Exploration Acquisition LLC, Bluescape Riley Exploration Holdings LLC, Bluescape Energy Recapitalization and Restructuring Fund III LP, Bluescape Energy Partners III GP LLC, Bluescape Resources GP Holdings LLC, and Charles John Wilder, Jr. disclaims beneficial ownership of the shares reported as held by Bluescape Riley Exploration Holdings LLC in excess of its respective pecuniary interest in such shares. |
Philip Riley, currently the Company’s Chief Financial Officer and Executive Vice President — Strategy and formerly a director of REP LLC, was also previously an investment manager for Bluescape Riley Exploration Holdings LLC until March 2021. The address of Bluescape Riley Exploration Holdings LLC and mailing address of each listed beneficial owner is 300 Crescent Court, Suite 1860, Dallas, Texas 75201.
(9)
| Bobby D. Riley, the Company’s current Chairman of the Board and Chief Executive Officer, has sole voting and investment power over the shares. |
(10)
| Includes shares of restricted common stock issued pursuant to the Riley Exploration Permian, Inc. 2021 Long Term Incentive Plan that are subject to vesting and certain other restrictions. |
(11)
| Kevin Riley, formerly the Company’s President, has sole voting and investment power over the shares. |
(12)
| James J. Doherty, Jr., formerly the Company’s Executive Vice President - Engineering, has sole voting and investment power over the shares. |
(13)
| Corey Riley, the Company’s current Chief Information Officer and Chief Compliance Officer, has sole voting and investment power over the shares. |
(14)
| Michael Palmer, the Company’s current Executive Vice President - Land, has sole voting and investment power over the shares. |
Each time a selling stockholder sells any securities offered by this prospectus, such selling shareholder is required to provide you with this prospectus and, to the extent not described in this prospectus, a related prospectus supplement containing specific information about such selling stockholder and the terms of securities being offered in the manner required by the Securities Act. The prospectus supplement, if required, will set forth the following information with respect to the applicable selling stockholder:
• | the name of the applicable selling stockholder; |
• | the nature of any position, office or other material relationship that such selling stockholder has had within the last three years with us or any of our affiliates; |
• | the number of shares of common stock owned by such selling stockholder prior to the offering; |
• | the amount of common stock to be offered for such selling stockholder’s account; and |
• | the amount and (if one percent or more) the percentage of common stock to be beneficially owned by such selling stockholder after the completion of the offering. |
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No offer or sale may occur unless the registration statement that includes this prospectus has been declared effective by the SEC and remains effective at the time the applicable selling stockholder offers or sells common stock. We are required, under certain circumstances, to update, supplement or amend this prospectus to reflect material developments in our business, financial position and results of operations and may do so by an amendment to this prospectus, a prospectus supplement or a future filing with the SEC incorporated by reference into this prospectus.
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The selling stockholders listed in the table under the heading “Selling Stockholders” in this prospectus and their permitted transferees or other successors in interest that may be identified in a subsequent prospectus supplement or, if required, a post-effective amendment to the registration statement, may sell or otherwise dispose of our common stock in accordance with this plan of distribution. These sales or dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale or at negotiated prices. These prices will be determined by the selling stockholders or by agreement between the selling stockholders and underwriters, broker-dealers or agents who may receive fees or commissions in connection with any such sale.
The selling stockholders may use any one or more of the following methods when disposing of the offered common stock:
• | sales on the NYSE American or any national securities exchange or quotation service on which our common stock may be listed or quoted at the time of sale; |
• | an over-the-counter sale or distribution; |
• | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
• | block trades (which may involve crosses) in which the broker-dealer will attempt to sell the common stock as agent, but may position and resell a portion of the block as principal to facilitate the transactions; |
• | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
• | an exchange distribution and/or secondary distribution in accordance with the rules of the applicable exchange; |
• | privately negotiated transactions; |
• | short sales effected after the date of this prospectus; |
• | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
• | broker-dealers may agree to sell a specified number of such common stock at a stipulated price per share; |
• | through the distributions of the shares by any selling stockholder to its general or limited partners, members, managers affiliates, employees, directors or stockholders; |
• | a combination of any such methods of sale; and |
• | any other method permitted pursuant to applicable law. |
The selling stockholders may elect to make an in-kind distribution of their shares of common stock to their respective members, partners or stockholders. To the extent that such members, partners or stockholders are not affiliates of ours, such members, partners or stockholders would thereby receive freely tradeable shares of our common stock pursuant to the distribution through the registration statement.
The selling stockholders may also sell the shares of common stock under Rule 144 or any other exemption from registration under the Securities Act, if, when and to the extent such exemption is available to them at the time of such sale, rather than under this prospectus, as amended or supplemented as of the time of such sale.
The selling stockholders also may transfer their shares of common stock in other circumstances, in which case the transferees or other successors-in-interest will be the selling beneficial owners for purposes of this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of common stock, from the purchaser) in amounts to be negotiated, but, except as set
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forth in a supplement to this prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with Financial Industry Regulatory Authority (“FINRA”) Rule 5110; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.
In connection with the sale of the common stock, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell common stock short and deliver these shares to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these shares. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell common stock from time to time under this prospectus, or, to the extent required under the applicable securities laws, under an amendment or supplement to this prospectus under Rule 424 or other applicable provision of the Securities Act, or if required, pursuant to a post-effective amendment to this registration statement.
If the selling stockholders use one or more underwriters in the sale, the underwriters will acquire the securities for their own account, and they may resell these securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be offered and sold to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms. The selling stockholders and any underwriters, broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. The securities may be offered and sold to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms. In such event, any commissions received by such underwriters, broker-dealers or agents and any profit on the resale of the shares of common stock purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Underwriters may resell the shares to or through dealers, and those dealers may receive compensation in the form of one or more discounts, concessions or commissions from the underwriters and commissions from purchasers for which they may act as agents. Each selling stockholder has informed us that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the shares of common stock.
Pursuant to the terms of the Registration Rights Agreement, we will bear all costs, fees and expenses incurred in connection with the registration of the common stock offered by this prospectus, as amended or supplemented by the applicable prospectus supplement or, if required, a post-effective amendment, other than brokerage commissions and similar selling expenses, if any, attributable to the sale of the common stock, which will be borne by the selling stockholders. Pursuant to the terms of the Registration Rights Agreement, we agreed to indemnify the selling stockholders against certain liabilities, including liabilities under the Securities Act and the Exchange Act, and the selling stockholders have agreed to indemnify us against certain liabilities, including liabilities under the Securities Act and the Exchange Act, which may arise from any written information furnished to us by the selling stockholders expressly for use in the registration statement or this prospectus, as amended or supplemented.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares of common stock may not simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
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There can be no assurances that the selling stockholders will sell, nor are the selling stockholders required to sell, any or all of the securities offered under this prospectus, as amended or supplemented by any applicable prospectus supplements or, if required, by post-effective amendments.
To the extent required, this plan of distribution may be amended and/or supplemented from time to time to describe any specific plan or plans of distribution. If required, we may add additional permitted transferees or other successors-in-interest in instances where such transferees or successors-in-interest have acquired their shares after the effective date of this registration statement. Such transferees or successors of identified selling stockholders may not be able to use this prospectus for resales until they are named in the selling stockholders table by a subsequent prospectus supplement or a post-effective amendment. See “Selling Stockholders.”
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DESCRIPTION OF CAPITAL STOCK
The following is a description of our capital stock and a summary of the rights of our stockholders. This description and summary is not complete, and you should also refer to our first amended and restated certificate of incorporation (“certificate of incorporation”) and third amended and restated bylaws (“bylaws”), which are incorporated by reference in and to this prospectus.
The Company’s authorized capital stock consists of an aggregate of 265 million (265,000,000) shares, including:
• | 240 million (240,000,000) shares of common stock, par value $0.001 per share; and |
• | 25 million (25,000,000) shares of preferred stock, par value $0.0001 per share. |
As of April 15, 2024, there were 21,527,852 shares of common stock outstanding and no shares of preferred stock outstanding.
Common Stock
Except as provided by law or in a preferred stock designation, holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, will have the exclusive right to vote for the election of directors and do not have cumulative voting rights. Except as otherwise required by law, holders of common stock are not entitled to vote on any amendment to the certificate of incorporation (including any certificate of designations relating to any series of preferred stock) that relates solely to the terms of any outstanding series of preferred stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to our certificate of incorporation (including any certificate of designations relating to any series of preferred stock) or pursuant to the Delaware General Corporation Law (“DGCL”). Subject to prior rights and preferences that may be applicable to any outstanding shares or series of preferred stock, holders of common stock are entitled to receive ratably in proportion to the shares of common stock held by them such dividends (payable in cash, stock or otherwise), if any, as may be declared from time to time by our board of directors out of funds legally available for dividend payments. All outstanding shares of common stock are fully paid and non-assessable.
The holders of common stock have no preferences or rights of conversion, exchange, pre-emption or other subscription rights. There are no redemption or sinking fund provisions applicable to common stock. In the event of any voluntary or involuntary liquidation, dissolution or winding-up of our affairs, holders of common stock will be entitled to share ratably in our assets in proportion to the shares of common stock held by them that are remaining after payment or provision for payment of all of our debts and obligations and after distribution in full of preferential amounts to be distributed to holders of outstanding shares of preferred stock, if any.
Preferred Stock
Our certificate of incorporation authorizes our board of directors, subject to any limitations prescribed by law, without further stockholder approval, to establish and to issue from time to time one or more classes or series of preferred stock, covering up to an aggregate of 25,000,000 shares of preferred stock. Each class or series of preferred stock will cover the number of shares and will have the powers, preferences, rights, qualifications, limitations and restrictions determined by the board of directors, which may include, among others, dividend rights, liquidation preferences, voting rights, conversion rights, preemptive rights and redemption rights. Except as provided by law or in a preferred stock designation, the holders of preferred stock will not be entitled to vote at or receive notice of any meeting of stockholders.
Registration Rights
In connection with the Merger, we assumed the obligations under the Registration Rights Agreement executed by and among REP LLC and its former members. See “Selling Stockholders” above for further information. The Registration Rights Agreement provides for customary rights for these parties to demand that the Company file a resale shelf registration statement and certain piggyback rights with respect to registrable securities held by such parties. These registrable securities include the Company’s common stock that was issued to these stockholders in connection with the Merger. Pursuant to the terms of the Registration Rights Agreement, 12,037,813 shares of our common stock are registrable under the Registration Rights Agreement.
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Subject to certain limitations in the Registration Rights Agreement, parties to the agreement holding more than 15% of the then-currently registrable securities under the agreement can require the Company to participate in a firm underwritten resale of the securities; provided that the Company will not be obligated to participate in more than two such underwritten resales per year.
Subject to certain exceptions, if at any time the Company proposes to register an offering of equity securities or conduct an underwritten offering, whether or not for its own account, then the Company must notify the stockholders that are a party to the Registration Rights Agreement of such proposal to allow them to include a specified number of their registrable securities in that registration statement or underwritten offering, as applicable.
These registration rights are subject to certain conditions and limitations, including the right of the underwriters to limit the number of shares to be included in a registration and the Company’s right to suspend use of a prospectus under a registration statement under certain circumstances, including if the Company is pursuing a bona fide material acquisition, merger, reorganization, disposition or other similar transaction and the Company’s board of directors determines in good faith that the Company’s ability to pursue or consummate such a transaction would be materially and adversely affected by any required disclosure of such transaction in the registration statement (and such disclosure is then-required therein by applicable law, rule or regulation to permit offers and sales thereunder), the Company has experienced some other material non-public event the disclosure of which in the registration statement at such time, in the good faith judgment of the Company’s board of directors, would materially and adversely affect the Company (and such disclosure therein is then-required by applicable law, rule or regulation to permit offers and sales thereunder), or the Company’s board of directors shall have determined in good faith, upon the advice of counsel, that it is required by law, rule or regulation to file a post-effective amendment to such registration statement to reflect certain updated information of the type described in the Registration Rights Agreement. The Registration Rights Agreement provides certain time limitations on how long such delays may be implemented. The Company will generally pay all registration expenses in connection with its obligations under the Registration Rights Agreement, regardless of whether any sales are made pursuant to the applicable registration statement.
Anti-Takeover Effects of Provisions of Our Certificate of Incorporation, Our Bylaws and Delaware Law
Some provisions of Delaware law contain, and our certificate of incorporation and our bylaws contain, provisions that could make the following transactions more difficult: acquisitions of us by means of a tender offer, a proxy contest or otherwise or removal of our incumbent officers and directors. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with us. We believe that the benefits of increased protection and our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
Delaware Law
Section 203 of the DGCL prohibits a Delaware corporation, including those whose securities are listed for trading on the NYSE American, from engaging in any business combination with any interested stockholder for a period of three years following the date that the stockholder became an interested stockholder, unless:
• | the transaction is approved by the board of directors before the date the interested stockholder attained that status; |
• | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or |
• | on or after such time the business combination is approved by the board of directors and authorized at a meeting of stockholders by at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder. |
We have elected to not be subject to the provisions of Section 203 of the DGCL in our certificate of incorporation.
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Our Certificate of Incorporation and Our Bylaws
Provisions of our certificate of incorporation and our bylaws may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our securities.
Among other things, our certificate of incorporation and bylaws include the following provisions:
• | establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 120 days prior to the first anniversary date of the mailing of notice of the annual meeting for the preceding year. Our bylaws will specify the requirements as to form and content of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting; |
• | provide our board of directors the ability to authorize undesignated preferred stock. This ability makes it possible for our board of directors to issue, without stockholder approval, preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of the Company. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or management of our company; |
• | provide that the authorized number of directors may be changed only by resolution of the board of directors; |
• | provide that at any time after (i) certain investment funds managed by Yorktown Partners LLC (“Yorktown”), (ii) Boomer Petroleum, LLC (“Boomer”), (iii) Bluescape Riley Exploration Acquisition, LLC (“BREA”), (iv) Bluescape Riley Exploration Holdings LLC (“BREH” and together with BREA, “Bluescape”), and their respective affiliates, no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, our bylaws can be amended by the board of directors; |
• | provide that, at any time after Yorktown, Boomer, Bluescape and their respective affiliates no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, any action required or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing in lieu of a meeting of such stockholders, subject to the rights of the holders of any series of preferred stock with respect to such series (prior to such time, such actions may be taken without a meeting by written consent of holders of common stock having not less than the minimum number of votes that would be necessary to authorize such action at a meeting at which all shares entitled to vote thereon were present and voted); |
• | provide that, at any time after Yorktown, Boomer, Bluescape and their respective affiliates no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, our certificate of incorporation and bylaws may be amended by the affirmative vote of the holders of at least two-thirds of our then outstanding common stock (prior to such time, our certificate of incorporation and bylaws may be amended by the affirmative vote of the holders of a majority of our then outstanding common stock); |
• | provide that we renounce any interest in existing and future investments in other entities by, or the business opportunities of, Yorktown, Boomer, Bluescape, or any of their officers, directors, agents, stockholders, members, partners, affiliates and subsidiaries (other than our directors that are presented business opportunities in their capacity as our directors) and that they have no obligation to offer us those investments or opportunities; |
• | provide that special meetings of our stockholders may only be called by a majority of the board of directors, the chief executive officer, or the chairman of the board; and |
• | provide that, at any time after Yorktown, Boomer, Bluescape, and their respective affiliates, no longer collectively beneficially own more than 50% of the outstanding shares of our common stock, the affirmative vote of the holders of at least two-thirds of the voting power of all then-outstanding common stock entitled to vote generally in the election of directors, voting together as a single class, shall be required to remove any or all of the directors from office and such removal may only be for cause (prior to such time, directors may be removed either with or without cause by the affirmative vote of holders of a majority of our then-outstanding stock entitled to vote). |
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Forum Selection
Our bylaws provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for:
• | any derivative action or proceeding brought on our behalf; |
• | any action asserting a claim of breach of a fiduciary duty owed by any of our directors, officers, employees or agents to us or our stockholders; |
• | any action asserting a claim against us arising pursuant to any provision of the DGCL, our certificate of incorporation or our bylaws; or |
• | any action asserting a claim against us that is governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. |
Our bylaws also provide that unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America will be the sole and exclusive forum for any stockholder to bring a complaint asserting a cause of action under the Securities Act or the Exchange Act.
Our bylaws also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and to have consented to, this forum selection provision. Although we believe these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of discouraging lawsuits against our directors, officers, employees and agents. The enforceability of similar exclusive forum provisions in other companies’ certificates of incorporation or bylaws has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described above, a court could rule that this provision in our bylaws is inapplicable or unenforceable.
Listing
Our common stock is listed and traded on the NYSE American under the symbol “REPX.”
Transfer Agent and Registrar
The transfer agent and registrar for our securities is Continental Stock Transfer & Trust Company, LLC with a mailing address of 1 State Street, 30th Floor, New York, NY 10004-1561 and with a phone number of (212) 509-4000.
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The validity of the issuance of our securities by this prospectus will be passed upon by our counsel, Holland & Knight LLP, Dallas, Texas.
The consolidated financial statements of Riley Exploration Permian, Inc. as of December 31, 2023 and 2022 and for the years then ended and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2023 incorporated by reference in this prospectus and registration statement have been so incorporated in reliance on the reports of BDO USA, P.C., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The information incorporated by reference in this prospectus and registration statement regarding estimated quantities of reserves of the Company, the future net revenues from those reserves and their present value as of December 31, 2023 is based on the reserve reports prepared by Ryder Scott Company, L.P., Riley Permian’s independent petroleum engineers given the authority of such firm as an expert in these matters.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of the Exchange Act and, in accordance therewith, file annual, quarterly and current reports, proxy statements, and other information with the SEC. The SEC maintains a website, located at www.sec.gov, that contains reports, proxy and information statements and other information regarding registrants, including us, that file electronically. You may also inspect our SEC records at our website at www.rileypermian.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of this prospectus, any prospectus supplement, the registration statement or any other report or document we file with or furnish to the SEC.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus. Information that we later provide to the SEC, and which is deemed to be “filed” with the SEC, will automatically update and may replace information in this prospectus, until the termination of the offering of the securities described in this prospectus.
The documents listed below and any future filings made by Riley Permian with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding those furnished to the SEC on Form 8-K), including all such documents we may file with the SEC after the date of the initial registration and prior to the effectiveness of the registration statement, are incorporated by reference in this prospectus, until the termination of each offering under this prospectus:
• | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 6, 2024, as amended by our Annual Report on Form 10-K/A, filed with the SEC on April 3, 2024; |
• | Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the SEC on May 8, 2024; |
• | Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 22, 2024; |
• | Our Current Reports on Form 8-K, as filed with the SEC on April 8, 2024 and April 26, 2024 (excluding any information furnished pursuant to Item 2.02 or Item 7.01 and related exhibits furnished under Item 9.01); and |
• | The description of our securities contained in the Registration Statement on Form 10-SB12G filed August 7, 1997 (File No. 000-29386) and any amendment or report filed with the SEC for the purpose of updating such description, including Exhibit 4.1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 6, 2024. |
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We undertake to provide without charge to any person, including any beneficial owner, to whom a copy of this prospectus is delivered, upon oral or written request of such person, a copy of any or all of the documents that have been incorporated by reference in this prospectus, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference as an exhibit in this prospectus. You should direct requests for documents to us at the following address:
Riley Exploration Permian, Inc.
29 E. Reno Avenue, Suite 500
Oklahoma City, OK 73104
Attention: Philip Riley
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Riley Exploration Permian, Inc.
12,037,813 Shares of Common Stock
PROSPECTUS
, 2024
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
| Other Expenses of Issuance and Distribution. |
The following table sets forth the fees and expenses, other than underwriting discounts and commissions, payable by us in connection with the sale or resale of the securities being registered hereby.
SEC registration fee | | | $11,467.64 |
Accounting fees and expenses | | | * |
Legal fees and expenses | | | * |
Printing and engraving expenses | | | * |
Miscellaneous | | | * |
Total | | | $* |
*
| Estimates not presently known. |
We will bear all costs, expenses and fees in connection with the registration of the securities, including with regard to compliance with state securities or “Blue Sky” laws. The selling security holders, however, will bear all commissions and discounts, if any, attributable to their sale of the securities.
Item 15.
| Indemnification of Directors and Officers. |
Section 145 of the DGCL, as amended, authorizes us to indemnify any director or officer under certain prescribed circumstances and subject to certain limitations against certain costs and expenses, including attorney’s fees actually and reasonably incurred in connection with any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which a person is a party by reason of being one of our directors or officers if it is determined that such person acted in accordance with the applicable standard of conduct set forth in such statutory provisions.
Our first amended and restated certificate of incorporation (“certificate of incorporation”) contains provisions that limit the liability of the Company’s directors for monetary damages to the fullest extent permitted by Delaware law. Consequently, the Company’s directors will not be personally liable to the Company or our stockholders for monetary damages for any breach of fiduciary duties as directors, except liability for:
• | any breach of the director’s duty of loyalty to the Company or our stockholders; |
• | any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; |
• | unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; or |
• | any transaction from which the director derived an improper personal benefit. |
Our certificate of incorporation and bylaws provide that we are required to indemnify our directors and officers, in each case to the fullest extent permitted by Delaware law. Our bylaws also provide that we are obligated to advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under Delaware law. We have entered into agreements to indemnify our directors, executive officers and other employees as determined by our Board. With specified exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding. The Company believes that these bylaws provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. The Company will also maintain directors’ and officers’ liability insurance.
The limitation of liability and indemnification provisions in our Charter and bylaws may discourage stockholders from bringing a lawsuit against our directors and officers for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and our stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage.
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The exhibits listed in the accompanying Exhibit List are filed (except where otherwise indicated) as part of this registration statement.
1.1* | | | Form of Underwriting Agreement* |
| | | Agreement and Plan of Merger, by and among Tengasco, Inc., Antman Sub, LLC, and Riley Exploration - Permian, LLC, dated as of October 21, 2020 (incorporated by reference from Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 22, 2020). |
| | | Amendment No. 1 to Agreement and Plan of Merger, by and among Tengasco, Inc., Antman Sub, LLC, and Riley Exploration - Permian, LLC, dated as of January 20, 2021 (incorporated by reference from Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 22, 2021). |
| | | First Amended and Restated Certificate of Incorporation of Riley Exploration Permian, Inc. (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on March 1, 2021, Registration No. 333-253750). |
| | | Third Amended and Restated Bylaws of Riley Exploration Permian, Inc. (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 23, 2022). |
| | | Second Amended and Restated Registration Rights Agreement dated October 7, 2020 by and among Riley Exploration - Permian, LLC, Riley Exploration Group, Inc., Yorktown Energy Partners XI, L.P., Boomer Petroleum, LLC, Bluescape Riley Exploration Holdings LLC, Bluescape Riley Acquisition Company LLC, Bobby D. Riley, Kevin Riley and Corey Riley (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-4/A filed with the Securities and Exchange Commission on December 31, 2020, Registration No. 333-250019). |
4.2* | | | Form of Common Stock Certificate |
4.3* | | | Form of Certificate of Designation of Preferred Stock |
4.4* | | | Form of Preferred Stock Certificate |
| | | Form of Indenture |
4.6* | | | Form of Debt Security |
4.7* | | | Form of Warrant Agreement |
4.8* | | | Form of Warrant Certificate |
4.9* | | | Form of Unit Agreement |
4.10* | | | Form of Rights Agreement |
4.11* | | | Form of Rights Certificate |
| | | Opinion of Holland & Knight LLP as to the legality of the securities being registered |
| | | Consent of BDO USA, P.C. |
| | | Consent of Ryder Scott Company, L.P. |
| | | Consent of Holland & Knight LLP (included in Exhibit 5.1) |
| | | Power of Attorney (included as part of the signature page to this Registration Statement) |
25.1* | | | Form T-1 Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939, as amended. |
| | | Report of Ryder Scott Company, L.P. (incorporated by reference to Exhibit 99.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023 filed with the Securities and Exchange Commission on March 6, 2024). |
| | | Filing Fee Table |
*
| To be filed, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference to a Current Report on Form 8-K or other SEC filings in connection with an offering of securities. |
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(a)
| The undersigned registrant hereby undertakes: |
(1)
| To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i)
| To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii)
| To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” in the effective registration statement; and |
(iii)
| To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
| That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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. |
(3)
| To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4)
| That, for the purpose of determining liability under the Securities Act to any purchaser: |
(i)
| Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii)
| Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
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(5)
| That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i)
| any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii)
| any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii)
| the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv)
| any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b)
| The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement 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. |
(c)
| 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. |
(d)
| 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. |
(e)
| The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. |
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Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oklahoma City, Oklahoma on May 10, 2024.
| | | Riley Exploration Permian, Inc. |
| | | | | | |
| | | By: | | | /s/ Bobby D. Riley |
| | | Name: Bobby D. Riley |
| | | Title: Chief Executive Officer |
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bobby D. Riley and Philip Riley, and each of them, his or her true and lawful attorney-in-fact and agents with full and several power of substitution, for him or her and his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated.
| | | | | | |
/s/ Bobby D. Riley | | | Chairman of the Board and Chief Executive Officer
(Principal Executive Officer) | | | May 10, 2024 |
Bobby D. Riley | |
| | | | | | |
/s/ Philip Riley | | | Chief Financial Officer and Executive Vice President of Strategy
(Principal Financial Officer) | | | May 10, 2024 |
Philip Riley | |
| | | | | | |
/s/ Amber Bonney | | | Chief Accounting Officer
(Principal Accounting Officer) | | | May 10, 2024 |
Amber Bonney | |
| | | | | | |
/s/ Brent Arriaga | | | Director | | | May 10, 2024 |
Brent Arriaga | |
| | | | | | |
/s/ Bryan H. Lawrence | | | Director | | | May 10, 2024 |
Bryan H. Lawrence | |
| | | | | | |
/s/ E. Wayne Nordberg | | | Director | | | May 10, 2024 |
E. Wayne Nordberg | |
| | | | | | |
/s/ Beth A. di Santo | | | Director | | | May 10, 2024 |
Beth A. di Santo | |
| | | | | | |
/s/ Rebecca Bayless | | | Director | | | May 10, 2024 |
Rebecca Bayless | |
Exhibit 4.5
RILEY EXPLORATION PERMIAN, INC.,
ANY GUARANTORS PARTY HERETO,
AND
[_________],
As Trustee
INDENTURE
Dated as of __________, 20__
DEBT SECURITIES
CROSS-REFERENCE TABLE*
| Trust Indenture Act Section |
|
Indenture Section |
| 310(a)(1) |
|
7.10 |
| (a)(2) |
|
7.10 |
| (a)(3) |
|
N/A |
| (a)(4) |
|
N/A |
| (a)(5) |
|
7.10 |
| (b) |
|
7.08, 7.10 |
| (c) |
|
N/A |
| 311(a) |
|
7.11 |
| (b) |
|
7.11 |
| (c) |
|
N/A |
| 312(a) |
|
2.07 |
| (b) |
|
11.03 |
| (c) |
|
11.03 |
| 313(a) |
|
7.06 |
| (b)(1) |
|
7.06 |
| (b)(2) |
|
7.06 |
| (c) |
|
7.06 |
| (d) |
|
7.06 |
| 314(a) |
|
4.03, 4.04 |
| (b) |
|
N/A |
| (c)(1) |
|
11.04 |
| (c)(2) |
|
11.04 |
| (c)(3) |
|
N/A |
| (d) |
|
N/A |
| (e) |
|
11.05 |
| (f) |
|
N/A |
| 315(a) |
|
7.01(b) |
| (b) |
|
7.05 |
| (c) |
|
7.01(a) |
| (d) |
|
7.01(c) |
| (e) |
|
6.11 |
| Trust Indenture Act Section |
|
Indenture Section |
| 316(a)(last sentence) |
|
2.08 |
| (a)(1)(A) |
|
6.05 |
| (a)(1)(B) |
|
6.04 |
| (a)(2) |
|
N/A |
| (b) |
|
6.07 |
| 317(a)(1) |
|
6.08 |
| (a)(2) |
|
6.09 |
| (b) |
|
2.06 |
| 318(a) |
|
11.01 |
| (b) |
|
N/A |
| (c) |
|
N/A |
N/A means not applicable.
This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
| Article I Definitions and Incorporation by Reference |
1 |
| Section 1.01 Definitions. |
1 |
| Section 1.02 Other Definitions. |
6 |
| Section 1.03 Incorporation by Reference of Trust Indenture Act. |
6 |
| Section 1.04 Rules of Construction. |
7 |
| Article II The Securities |
7 |
| Section 2.01 Amount Unlimited; Issuable in Series. |
7 |
| Section 2.02 Denominations. |
10 |
| Section 2.03 Forms Generally. |
10 |
| Section 2.04 Execution, Authentication, Delivery and Dating. |
11 |
| Section 2.05 Registrar and Paying Agent. |
12 |
| Section 2.06 Paying Agent to Hold Money in Trust. |
13 |
| Section 2.07 Holder Lists. |
13 |
| Section 2.08 Transfer and Exchange. |
13 |
| Section 2.09 Replacement Securities. |
14 |
| Section 2.10 Outstanding Securities. |
14 |
| Section 2.11 Original Issue Discount, Foreign-Currency Denominated and
Treasury Securities. |
15 |
| Section 2.12 Temporary Securities. |
15 |
| Section 2.13 Cancellation. |
16 |
| Section 2.14 Payments; Defaulted Interest. |
16 |
| Section 2.15 Persons Deemed Owners. |
16 |
| Section 2.16 Computation of Interest. |
17 |
| Section 2.17 Global Securities; Book-Entry Provisions. |
17 |
| Article III Redemption |
19 |
| Section 3.01 Applicability of Article. |
19 |
| Section 3.02 Notice to the Trustee. |
19 |
| Section 3.03 Selection of Securities To Be Redeemed. |
19 |
| Section 3.04 Notice of Redemption. |
20 |
| Section 3.05 Effect of Notice of Redemption. |
21 |
| Section 3.06 Deposit of Redemption Price. |
21 |
| Section 3.07 Securities Redeemed in Part. |
22 |
| Section 3.08 Purchase of Securities. |
22 |
| Section 3.09 Mandatory and Optional Sinking Funds. |
22 |
| Section 3.10 Satisfaction of Sinking Fund Payments with Securities. |
22 |
| Section 3.11 Redemption of Securities for Sinking Fund. |
23 |
| Article IV |
23 |
| Section 4.01 Payment of Securities. |
23 |
| Section 4.02 Maintenance of Office or Agency. |
24 |
| Section 4.03 SEC Reports; Financial Statements. |
24 |
| Section 4.04 Compliance Certificate. |
25 |
| Section 4.05 Existence. |
25 |
| Section 4.06 Waiver of Stay, Extension or Usury Laws. |
26 |
| Article V Successors |
26 |
| Section 5.01 Limitations on Mergers and Consolidations. |
26 |
| Section 5.02 Successor Person Substituted. |
26 |
| Article VI Defaults and Remedies |
27 |
| Section 6.01 Events of Default. |
27 |
| Section 6.02 Acceleration. |
29 |
| Section 6.03 Other Remedies. |
29 |
| Section 6.04 Waiver of Defaults. |
29 |
| Section 6.05 Control by Majority. |
30 |
| Section 6.06 Limitations on Suits. |
30 |
| Section 6.07 Rights of Holders to Receive Payment. |
31 |
| Section 6.08 Collection Suit by Trustee. |
31 |
| Section 6.09 Trustee May File Proofs of Claim. |
31 |
| Section 6.10 Priorities. |
32 |
| Section 6.11 Undertaking for Costs. |
32 |
| Article VII Trustee |
33 |
| Section 7.01 Duties of Trustee. |
33 |
| Section 7.02 Rights of Trustee. |
34 |
| Section 7.03 May Hold Securities. |
35 |
| Section 7.04 Trustee’s Disclaimer. |
35 |
| Section 7.05 Notice of Defaults. |
35 |
| Section 7.06 Reports by Trustee to Holders. |
35 |
| Section 7.07 Compensation and Indemnity. |
35 |
| Section 7.08 Replacement of Trustee. |
36 |
| Section 7.09 Successor Trustee by Merger, etc. |
38 |
| Section 7.10 Eligibility; Disqualification. |
38 |
| Section 7.11 Preferential Collection of Claims Against the Company or a
Guarantor. |
39 |
| Article VIII Discharge of Indenture |
39 |
| Section 8.01 Termination of the Company’s and the Guarantors’ Obligations. |
39 |
| Section 8.02 Application of Trust Money. |
42 |
| Section 8.03 Repayment to Company or Guarantor. |
42 |
| Section 8.04 Reinstatement. |
43 |
| Section 8.05 Miscellaneous Provisions. |
43 |
| Article IX Supplemental Indentures and Amendments |
43 |
| Section 9.01 Without Consent of Holders. |
43 |
| Section 9.02 With Consent of Holders. |
45 |
| Section 9.03 Compliance with the Trust Indenture Act. |
46 |
| Section 9.04 Revocation and Effect of Consents. |
46 |
| Section 9.05 Notation on or Exchange of Securities. |
47 |
| Section 9.06 Trustee to Sign Amendments, etc. |
47 |
| Article X Guarantee |
48 |
| Section 10.01 Guarantee. |
48 |
| Section 10.02 Execution and Delivery of Guarantees. |
50 |
| Section 10.03 Limitation on Liability of the Guarantors. |
50 |
| Section 10.04 Release of Guarantors from Guarantee. |
50 |
| Section 10.05 Contribution. |
51 |
| Article XI Miscellaneous |
51 |
| Section 11.01 Trust Indenture Act Controls. |
51 |
| Section 11.02 Notices. |
51 |
| Section 11.03 Communication by Holders with Other Holders. |
52 |
| Section 11.04 Certificate and Opinion as to Conditions Precedent. |
52 |
| Section 11.05 Statements Required in Certificate or Opinion. |
53 |
| Section 11.06 Rules by Trustee and Agents. |
53 |
| Section 11.07 Legal Holidays. |
53 |
| Section 11.08 No Recourse Against Others. |
53 |
| Section 11.09 Governing Law. |
54 |
| Section 11.10 No Adverse Interpretation of Other Agreements. |
54 |
| Section 11.11 Successors. |
54 |
| Section 11.12 Severability. |
54 |
| Section 11.13 Counterpart Originals. |
54 |
| Section 11.14 Table of Contents, Headings, etc. |
54 |
| Section 11.15 Waiver of Jury Trial. |
54 |
| Section 11.16 Force Majeure. |
54 |
| Section 11.17 USA PATRIOT Act. |
55 |
INDENTURE dated as of _________, 20__ among Riley Exploration Permian,
Inc., a Delaware corporation (the “Company”), any Guarantors (as defined herein) party hereto and [_________], as trustee (the “Trustee”).
The Company and any Guarantors have duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the Company’s debentures, notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to principal amount (herein called the “Securities”),
and the related Guarantees (as hereinafter defined), if any, as provided in this Indenture.
The Company, Guarantors and Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the Securities:
Article I
Definitions and Incorporation by Reference
Section 1.01 Definitions.
“Additional Amounts” means any additional amounts required
by the express terms of a Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto, to be paid by the Company or any Guarantor, as the case may be, with respect to certain taxes, assessments or other
governmental charges imposed on certain Holders and that are owing to such Holders.
“Affiliate” of any specified Person means any other Person
directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, “control” of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” shall have meanings correlative to the foregoing.
“Agent” means any Registrar or Paying Agent.
“Bankruptcy Law” means Title 11 of the United States Code
or any similar federal, state or foreign law for the relief of debtors.
“Board of Directors” means:
(1) with respect to a corporation, the board of directors of the
corporation or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the Board of Directors of the general
partner of the partnership;
(3) with respect to a limited liability company, the managing member or
members or any controlling board of managers, directors or members thereof or any board or committee serving a similar management function; and
(4) with respect to any other Person, the individual or board or
committee of such Person serving a management function similar to those described in clauses (1), (2) or (3) of this definition.
“Board Resolution” means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly adopted by such Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means any day that is not a Legal Holiday.
“Company” means the Person named as the “Company” in the
first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person; provided, however, that for purposes of any
provision contained herein which is required by the TIA, “Company” shall also mean each other obligor (if any), other than a Guarantor, on the Securities of a series.
“Company Order” means a written request or order signed on
behalf of the Company by one of its Officers and delivered to the Trustee.
“Corporate Trust Office of the Trustee” means the office
of the Trustee located at [●], Attention: [●] and as may be located at such other address as the Trustee may give notice to the Company and the Guarantors.
“Debt” of any Person at any date means any obligation
created or assumed by such Person for the repayment of borrowed money or a purchase obligation, or any guarantee thereof.
“Default” means any event, act or condition that is, or
after notice or the passage of time or both would be, an Event of Default.
“deliver” or “delivery” means, in the
context of certificated Securities, actual physical delivery of the certificated Securities to the relevant Person required hereunder, together with all endorsements, and in the context of Global Securities, the designation on the records of the
Depositary of a change in the beneficial interests of a holder in a Global Security.
“Depositary” means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person specified pursuant to Section 2.01 hereof as the initial Depositary with respect to the Securities of such series, until a successor shall have been appointed and become such
pursuant to the applicable provision of this Indenture, and thereafter “Depositary” shall mean or include such successor.
“Dollar” or “$” means a dollar or other
equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debt.
“Exchange Act” means the Securities Exchange Act of 1934,
as amended, and any successor statute.
“GAAP” means the United States generally accepted
accounting principles, as in effect from time to time.
“Global Security” means a Security that is issued in
global form in the name of the Depositary with respect thereto or its nominee.
“Government Obligations” means, with respect to a series
of Securities, direct obligations of the government that issues the currency in which the Securities of the series are payable for the payment of which the full faith and credit of such government is pledged, or obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of such government, the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government.
“Guarantee” means the guarantee of the Company’s
obligations under the Securities of a series by a Guarantor (specified with respect to such series as contemplated by Section 2.01(9)) as provided in Article X.
“Guarantors” means, with respect to any series of
Securities, the Person or Persons, if any, named in accordance with Section 2.01(9) as the “Guarantors” (i) in or pursuant to a Board Resolution, and set forth, or determined in the manner provided, in an Officers’ Certificate or in a Company Order,
or (ii) in an indenture supplemental hereto establishing the terms of such series of Securities until a successor Person or Persons shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantors” with
respect to such series of Securities shall mean such successor Person or Persons, and any Subsidiary of the Company who may execute this Indenture, or a supplement thereto, for the purpose of providing a Guarantee for such series of Securities
pursuant to this Indenture. If a series of Securities does not have any Guarantors, all references in this Indenture to Guarantors shall be ignored with respect to such series of Securities.
“Holder” means a Person in whose name a Security is
registered.
“Indenture” means this Indenture as amended or
supplemented from time to time pursuant to the provisions hereof, and includes the terms of a particular series of Securities established as contemplated by Section 2.01.
“interest” in the context of an Original Issue Discount
Security that by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” when used with respect to any
Security, shall have the meaning assigned to such term in the Security as contemplated by Section 2.01.
“Issue Date” means, with respect to Securities of a
series, the first date on which the Securities of such series are originally issued under this Indenture.
“Legal Holiday” means a Saturday, a Sunday or a day on
which banking institutions in any of The City of New York, New York or a Place of Payment are authorized or obligated by law, regulation or executive order to remain closed.
“Maturity” means, with respect to any Security, the date
on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or otherwise.
“Officer” means with respect to any Person, the Chief
Executive Officer, the President, the Chief Financial Officer, the Chief Compliance Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant Secretary or any Vice President of such Person.
“Officers’ Certificate” means a certificate signed on
behalf of the Company by any two of its Officers.
“Opinion of Counsel” means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of or counsel to the Company, a Guarantor or the Trustee.
“Original Issue Discount Security” means any Security that
provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
“Person” means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated association, joint stock company, trust, unincorporated organization or government or other agency, instrumentality or political subdivision thereof or other entity of any kind.
“Place of Payment” means, with respect to the Securities
of any series, the place or places where the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of that series are payable as specified in accordance with Section 2.01 subject to the provisions of
Section 4.02.
“principal” of a Security means the principal of the
Security plus, when appropriate, the premium, if any, on the Security.
“Redemption Date” means, with respect to any Security to
be redeemed, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, with respect to any Security to
be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
“Responsible Officer” means any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
“Rule 144A Securities” means Securities of a series
designated pursuant to Section 2.01 as entitled to the benefits of Section 4.03(2).
“SEC” means the Securities and Exchange Commission.
“Securities” has the meaning stated in the preamble of
this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933, as
amended.
“Security Custodian” means, with respect to Securities of
a series issued in global form, the Trustee for Securities of such series, as custodian with respect to the Securities of such series, or any successor entity thereto.
“Significant Subsidiary” means a Subsidiary of the Company
that is a “significant subsidiary” of the Company as such term is defined in Rule 1-02(w) of Regulation S-X as in effect on the date hereof.
“Stated Maturity” means, when used with respect to any
Security or any installment of principal thereof or interest thereon, the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” of any Person means:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of equity interests entitled, without regard to the occurrence of any contingency, to vote in the election of directors, managers, trustees or equivalent Persons thereof is at the time of determination owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or any combination thereof; or
(2) a partnership (a) the sole general partner or the managing partner
of which is such Person or a Subsidiary of such Person, (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof) or (c) of which more than 50% of the partners’ equity interests,
considering all partners’ equity interests as a single class, is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or any combination thereof.
“surrender” shall have the same meaning as “deliver” in
the context of the surrender of a Security.
“TIA” means the Trust Indenture Act of 1939, as amended,
as in effect on the date hereof; provided, however, that, in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as such above until a
successor replaces it in accordance with the applicable provisions of this Indenture, and thereafter “Trustee” means each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series means the Trustee with respect to Securities of that series.
“United States” means the United States of America
(including the States and the District of Columbia) and its territories and possessions, which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
“U.S. Government Obligations” means Government Obligations
with respect to Securities payable in Dollars.
Section 1.02 Other Definitions.
| |
|
|
|
| Term |
|
Defined in Section |
|
| “Agent Members” |
|
2.17 |
|
| “Bankruptcy Custodian” |
|
6.01 |
|
| “covenant defeasance” |
|
8.01 |
|
| “EDGAR” |
|
4.03 |
|
| “Event of Default” |
|
6.01 |
|
| “Exchange Rate” |
|
2.11 |
|
| “Funding Guarantor” |
|
10.05 |
|
| “Judgment Currency” |
|
6.10 |
|
| “legal defeasance” |
|
8.01 |
|
| “mandatory sinking fund payment” |
|
3.09 |
|
| “optional sinking fund payment” |
|
3.09 |
|
| “Paying Agent” |
|
2.05 |
|
| “Registrar” |
|
2.05 |
|
| “Required Currency” |
|
6.10 |
|
| “Successor” |
|
5.01 |
|
Section 1.03 Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture (and if the Indenture is not qualified under the TIA at that time, as if it were so qualified unless otherwise provided). The following TIA terms used in this Indenture have the
following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the
Trustee.
“obligor” on the indenture securities means the Company, any
Guarantor or any other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by
a TIA reference to another statute or defined by an SEC rule under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(3) “or” is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
(6) all references in this instrument to Articles and Sections are
references to the corresponding Articles and Sections in and of this instrument.
Article II
The Securities
Section 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth, or determined in the manner provided, in an Officers’ Certificate or in a Company Order, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from the Securities of all other series);
(2) if there is to be a limit, the limit upon the aggregate principal
amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 2.08, Section 2.09, Section 2.12, Section 2.17, Section 3.07 or Section 9.05 and except for any Securities which, pursuant to Section 2.04 or Section 2.17, are deemed never to have been authenticated and delivered hereunder);
provided, however, that unless otherwise provided in the terms of the series, the authorized aggregate principal amount of such series may be increased before or after the issuance of any Securities of the series by a Board Resolution (or action
pursuant to a Board Resolution) to such effect;
(3) whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to be issuable in permanent global form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests in any such Global Security may exchange such interests
for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 2.17, and the initial Depositary and Security
Custodian, if any, for any Global Security or Securities of such series;
(4) the manner in which any interest payable on a temporary Global
Security on any Interest Payment Date will be paid if other than in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium (if any) on
the Securities of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which
the Securities of the series shall bear interest, if any, whether and under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which such interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and the record date for the interest payable on any Securities on any Interest Payment Date, or if other than provided herein, the Person to whom any interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of Section 4.02,
the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option, and the manner in which
the Company must exercise any such option, if different from those set forth herein;
(9) whether Securities of the series are entitled to the benefits of any
Guarantee of any Guarantor pursuant to this Indenture, the identity of any such Guarantors and any terms of such Guarantee with respect to the Securities of the series in addition to those set forth in Article X, or any exceptions to or changes to
those set forth in Article X;
(10) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which the price or prices (whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid in whole or in part pursuant to such obligation;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denomination in which any Securities of that series shall be issuable;
(12) if other than Dollars, the currency or currencies (including
composite currencies) or the form, including equity securities, other debt securities (including Securities), warrants or any other securities or property of the Company, any Guarantor or any other Person, in which payment of the principal of,
premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series shall be payable;
(13) if the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which the Securities are stated to
be payable, the currency or currencies (including composite currencies) in which payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(14) if the amount of payments of principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of the series may be determined with reference to any commodities, currencies or indices, values, rates or prices or any other index or formula, the manner in which such amounts
shall be determined;
(15) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(16) any additional means of satisfaction and discharge of this Indenture
and any additional conditions or limitations to discharge with respect to Securities of the series and the related Guarantees, if any, pursuant to Article VIII or any modifications of or deletions from such conditions or limitations;
(17) any deletions or modifications of or additions to the Events of
Default set forth in Section 6.01 or covenants of the Company or any Guarantor set forth in Article IV pertaining to the Securities of the series;
(18) any restrictions or other provisions with respect to the transfer or
exchange of Securities of the series, which may amend, supplement, modify or supersede those contained in this Article II;
(19) if the Securities of the series are to be convertible into or
exchangeable for capital stock, other debt securities (including Securities), warrants, other equity securities or any other securities or property of the Company, any Guarantor or any other Person, at the option of the Company or the Holder or upon
the occurrence of any condition or event, the terms and conditions for such conversion or exchange;
(20) whether the Securities of the series are to be entitled to the
benefit of Section 4.03(2) (and accordingly constitute Rule 144A Securities); and
(21) any other terms of the series (which terms shall not be prohibited by
the provisions of this Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and, subject to Section 2.03, set forth, or determined in the manner provided, in the Officers’ Certificate or Company Order referred
to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action, together with such Board Resolution, shall be set forth in an Officers’ Certificate or certified by the Secretary or an Assistant Secretary of the Company and delivered
to the Trustee at or prior to the delivery of the Officers’ Certificate or Company Order setting forth the terms of the series.
Section 2.02 Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 2.01. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars shall be issuable in denominations of $1,000 and any integral
multiples thereof.
Section 2.03 Forms Generally.
The Securities of each series shall be in fully registered form and in
substantially such form or forms (including temporary or permanent global form) established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto. The Securities may have notations, legends or endorsements required by
law, securities exchange rules, the Company’s certificate of incorporation, bylaws or other similar governing documents, agreements to which the Company is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). A copy of the Board Resolution establishing the form or forms of Securities of any series shall be delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 2.04 for the
authentication and delivery of such Securities.
The definitive Securities of each series shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution thereof.
The Trustee’s certificate of authentication shall be in substantially
the following form:
“This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[_________], as Trustee
Section 2.04 Execution, Authentication, Delivery and Dating.
At least one Officer of the Company shall sign the Securities on behalf
of the Company and, with respect to any related Guarantees, an Officer of each Guarantor shall sign the Notation of Guarantee on behalf of such Guarantor, in each case by manual, facsimile or electronic signature.
If an Officer of the Company or a Guarantor whose signature is on a
Security no longer holds that office at the time the Security or the Notation of Guarantee, as the case may be, is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or
the related Guarantees, if any, or be valid or obligatory for any purpose until authenticated by the manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Notwithstanding the foregoing, if any Security has been authenticated and delivered hereunder but never issued and sold by the Company, and the Company delivers such Security to the Trustee for cancellation as provided in
Section 2.13, together with a written statement (which need not comply with Section 11.05 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture or the related Guarantees, if any.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the Company (and if applicable, the Notation of Guarantee for such series executed by each Guarantor with respect to such series) to the Trustee for authentication, and the
Trustee shall authenticate and deliver such Securities for original issue upon a Company Order for the authentication and delivery of such Securities or pursuant to such procedures acceptable to the Trustee as may be specified from time to time by
Company Order. Such order shall specify the amount of the Securities to be authenticated, the date on which the original issue of Securities is to be authenticated, the name or names of the initial Holder or Holders and any other terms of the
Securities of such series not otherwise determined. If provided for in such procedures, such Company Order may authorize (1) authentication and delivery of Securities of such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity date or dates, original issue date or dates and interest rate or rates) that differ from Security to Security and (2) may authorize authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent, which instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by Section 2.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (in addition to the Company Order referred to above and the other documents required by Section 11.04), and (subject to Section 7.01) shall be fully protected in relying upon:
(1) an Officers’ Certificate setting forth the Board Resolution and, if
applicable, an appropriate record of any action taken pursuant thereto, as contemplated by the last paragraph of Section 2.01; and
(2) an Opinion of Counsel substantially to the effect that:
(a) the form of such Securities has been established in conformity with
the provisions of this Indenture;
(b) the terms of such Securities have been established in conformity with
the provisions of this Indenture; and
(c) that when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, such Securities and the related Guarantees, if any, will constitute valid and binding obligations of the Company and the Guarantors, respectively, enforceable
against the Company and the Guarantors, respectively, in accordance with their respective terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer
or other similar laws in effect from time to time affecting the rights of creditors generally, and the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Officers’ Certificate and Opinion of Counsel at the time of issuance of each such Security, but such Officers’ Certificate and Opinion of Counsel shall be delivered at or before the time of issuance of the first
Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the
issuance of such Securities pursuant to this Indenture would affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company, any Guarantor or any other Affiliate of the Company or any Guarantor.
Each Security shall be dated the date of its authentication.
Section 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series of
Securities where Securities of such series may be presented for registration of transfer or exchange (“Registrar”) and an office or agency where Securities of such series may be presented for payment (“Paying Agent”). The
Registrar shall keep a register of the Securities of such series and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the
term “Paying Agent” includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this
Indenture. The Company may change any Paying Agent or Registrar without notice to any Holder. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company, any Guarantor or any
Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium, if any, or interest on or any Additional Amounts with respect to
Securities and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds
disbursed. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed, the Paying Agent (if other
than the Company, a Guarantor or a Subsidiary of the Company) shall have no further liability for the money. If the Company, a Guarantor or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Each Paying Agent shall otherwise comply with TIA § 317(b).
Section 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar with respect to a series of Securities, the Company shall furnish to the Trustee
at least five Business Days before each Interest Payment Date with respect to such series of Securities, and at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such request, a list in such
form and as of such date as the Trustee may reasonably require of the names and addresses of Holders of such series, and the Company shall otherwise comply with TIA § 312(a).
Section 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided pursuant to
Section 2.01:
When Securities of any series are presented to the Registrar with the
request to register the transfer of such Securities or to exchange such Securities for an equal principal amount of Securities of the same series of like tenor and of other authorized denominations, the Registrar shall register the transfer or make
the exchange as requested if its requirements and the requirements of this Indenture for such transactions are met; provided, however, that the Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instruction of transfer in form reasonably satisfactory to the Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall
execute Securities (and if applicable, each Guarantor with respect to such series shall execute the Notation of Guarantee for such series) and the Trustee shall authenticate such Securities at the Registrar’s written request and submission of the
Securities or Global Securities. No service charge shall be made to a Holder for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than such transfer tax or similar governmental charge payable upon exchanges pursuant to Section 2.12, Section 3.07 or Section 9.05). The Trustee shall authenticate such
Securities in accordance with the provisions of Section 2.04. Notwithstanding any other provisions of this Indenture to the contrary, the Company shall not be required to register the transfer or exchange of (a) any Security selected for redemption
in whole or in part pursuant to Article III, except the unredeemed portion of any Security being redeemed in part, or (b) any Security during the period beginning 15 Business Days prior to the mailing of notice of any offer to repurchase Securities
of the series required pursuant to the terms thereof or of redemption of Securities of a series to be redeemed and ending at the close of business on the day of mailing.
Section 2.09 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if the
Holder of a Security claims that the Security has been destroyed, lost or stolen and the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of such Security, the Company shall issue, each Guarantor with
respect to such series shall execute the Notation of Guarantee relating to such Security, if any, and the Trustee shall authenticate a replacement Security of the same series if the Trustee’s requirements are met. If any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. If required by the Trustee, any Guarantor or the Company, such Holder must furnish an
indemnity bond that is sufficient in the judgment of the Trustee and the Company to protect the Company, each Guarantor, the Trustee, any Agent or any authenticating agent from any loss that any of them may suffer if a Security is replaced. The
Company and the Trustee may charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
Section 2.10 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee hereunder and those described in this Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
A Security does not cease to be outstanding because the Company, a
Guarantor or an Affiliate of the Company or a Guarantor holds the Security.
Section 2.11 Original Issue Discount, Foreign-Currency
Denominated and Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or consent, (a) the principal amount of an Original Issue Discount Security shall be the principal amount thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the Dollar equivalent, as determined by the Company by reference to the noon buying
rate in The City of New York for cable transfers for such currency, as such rate is certified for customs purposes by the Federal Reserve Bank of New York (the “Exchange Rate”) on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, as determined by the Company by reference to the Exchange Rate on the date of original issuance of such Security, of the amount determined in (a) above),
of such Security and (c) Securities owned by the Company, a Guarantor or any other obligor upon the Securities or any Affiliate of the Company, of a Guarantor or of such other obligor shall be disregarded, except that, for the purpose of determining
whether the Trustee shall be protected in relying upon any such direction, amendment, supplement, waiver or consent, only Securities that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
Section 2.12 Temporary Securities.
Until definitive Securities of any series are ready for delivery, the
Company may prepare and execute temporary Securities, each Guarantor with respect to such series shall execute the Notation of Guarantee relating to such Security relating to such temporary Securities, if any, and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities, but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and
execute definitive Securities, each Guarantor with respect to such series shall execute the Notation of Guarantee relating to such definitive Security, if any, and the Trustee shall authenticate such definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.
Section 2.13 Cancellation.
The Company or any Guarantor at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange, payment or redemption or for credit against any sinking fund payment. The Trustee
shall cancel all Securities surrendered for registration of transfer, exchange, payment, redemption, replacement or cancellation or for credit against any sinking fund. Unless the Company shall direct in writing that canceled Securities be returned
to it, after written notice to the Company all canceled Securities held by the Trustee shall be disposed of in accordance with the usual disposal procedures of the Trustee, and the Trustee shall maintain a record of their disposal. The Company may
not issue new Securities to replace Securities that have been paid or that have been delivered to the Trustee for cancellation.
Section 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01, interest
(except defaulted interest) on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Persons who are registered Holders of that Security at the close of business on the record
date next preceding such Interest Payment Date, even if such Securities are canceled after such record date and on or before such Interest Payment Date. The Holder must surrender a Security to a Paying Agent to collect principal payments. Unless
otherwise provided with respect to the Securities of any series, the Company will pay the principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities in Dollars. Such amounts shall be payable at the
offices of the Trustee or any Paying Agent, provided that at the option of the Company, the Company may pay such amounts (1) by wire transfer with respect to Global Securities or (2) by check payable in such money mailed to a Holder’s registered
address with respect to any Securities.
If the Company defaults in a payment of interest on the Securities of
any series, the Company shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest on the defaulted interest, in each case at the rate provided in the Securities of such series and in Section 4.01. The Company may pay
the defaulted interest to the Persons who are Holders on a subsequent special record date. At least 15 days before any special record date selected by the Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20
days’ prior written notice from the Company setting forth such special record date and the interest amount to be paid) shall mail to Holders a notice that states the special record date, the related payment date and the amount of such interest to be
paid.
Section 2.15 Persons Deemed Owners.
The Company, the Guarantors, the Trustee, any Agent and any
authenticating agent may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payments of principal of, premium (if any) or interest on or any Additional Amounts with respect to such
Security and for all other purposes. None of the Company, any Guarantor, the Trustee, any Agent or any authenticating agent shall be affected by any notice to the contrary.
Section 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for
Securities of any series, interest on the Securities of each series shall be computed on the basis of a year comprising twelve 30-day months.
Section 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a Global
Security, as contemplated by Section 2.01, then, notwithstanding clause (11) of Section 2.01 and the provisions of Section 2.02, any such Global Security shall represent such of the outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of outstanding Securities represented thereby shall be made by the Trustee (i) in such
manner and upon instructions given by such Person or Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 2.04 or (ii) otherwise in accordance with written instructions or such other
written form of instructions as is customary for the Depositary for such Security, from such Depositary or its nominee on behalf of any Person having a beneficial interest in such Global Security. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. With respect to
the Securities of any series that are represented by a Global Security, the Company and the Guarantors authorize the execution and delivery by the Trustee of a letter of representations or other similar agreement or instrument in the form customarily
provided for by the Depositary appointed with respect to such Global Security. Any Global Security may be deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian therefor pursuant to a FAST
Balance Certificate Agreement or similar agreement between the Trustee and the Depositary. If a Company Order has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 11.05 and need not be accompanied by an Opinion of Counsel.
Members of, or participants in, the Depositary (“Agent Members”)
shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or under such Global Security, and the Depositary may be treated by the
Company, any Guarantor, the Trustee or the Security Custodian and any agent of the Company, any Guarantor, the Trustee or the Security Custodian as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
(i) the registered holder of a Global Security of a series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder of Securities of such
series is entitled to take under this Indenture or the Securities of such series and (ii) nothing herein shall prevent the Company, any Guarantor, the Trustee or the Security Custodian, or any agent of the Company, any Guarantor, the Trustee or the
Security Custodian, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Security.
Notwithstanding Section 2.08, and except as otherwise provided pursuant
to Section 2.01, transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Security may
be transferred in accordance with the rules and procedures of the Depositary. Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Security if, and only if, either (1) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for the Global Security and a successor Depositary is not appointed by the Company within 90 days of such notice, (2) an Event of Default has occurred with respect to such series
and is continuing and the Registrar has received a request from the Depositary to issue Securities in lieu of all or a portion of the Global Security (in which case the Company shall deliver Securities within 30 days of such request) or (3) the
Company in its sole discretion determines not to have the Securities represented by a Global Security.
In connection with any transfer of a portion of the beneficial interests
in a Global Security to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of the Global Security in an amount equal to the principal amount of the
beneficial interests in the Global Security to be transferred, and the Company shall execute, each Guarantor with respect to such series shall execute the Notation of Guarantee relating to such Global Security, if any, and the Trustee upon receipt of
a Company Order for the authentication and delivery of Securities shall authenticate and deliver, one or more Securities of the same series of like tenor and amount.
In connection with the transfer of all of the beneficial interests in a
Global Security to beneficial owners pursuant to this Section 2.17, the Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, each Guarantor with respect to such series shall execute the
Notation of Guarantee relating to such Global Security, if any, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interests in the Global Security, an equal aggregate
principal amount of Securities of authorized denominations.
None of the Company, any Guarantor or the Trustee will have any
responsibility or liability for any aspect of the records relating to, or payments made on account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to such Securities. None of the
Company, any Guarantor or the Trustee shall be liable for any delay by the Holder of the Global Security or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in relying on,
instructions from such Holder of the Global Security or the Depositary for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence of the third paragraph of Section
2.04 shall apply to any Global Security if such Global Security was never issued and sold by the Company and the Company or a Guarantor delivers to the Trustee the Global Security together with written instructions (which need not comply with Section
11.05 and need not be accompanied by an Opinion of Counsel) with regard to the cancellation or reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of the third
paragraph of Section 2.04.
Notwithstanding the provisions of Section 2.03 and Section 2.14, unless
otherwise specified as contemplated by Section 2.01, payment of principal of, premium (if any) and interest on and any Additional Amounts with respect to any Global Security shall be made to the Depositary.
The Company in issuing Securities of any series may use CUSIP and
corresponding ISIN numbers (if then generally in use), and, if so, the Trustee shall use CUSIP and corresponding ISIN numbers in notices of redemption as a convenience to Holders of Securities of such series; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the Securities of such series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on
the Securities of such series, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the CUSIP or ISIN numbers.
Notwithstanding anything herein to the contrary, delivery or surrender
of a Security shall not be required in the case of Global Securities in order to obtain the rights or benefits provided hereunder upon the delivery or surrender of a Security.
Article III
Redemption
Section 3.01 Applicability of Article.
Securities of any series that are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01 for Securities of any series) in accordance with this Article III.
Section 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any series pursuant to
this Indenture, it shall notify the Trustee of the Redemption Date and the principal amount of Securities of such series to be redeemed. The Company shall so notify the Trustee at least 45 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee) by delivering to the Trustee an Officers’ Certificate stating that such redemption will comply with the provisions of this Indenture and of the Securities of such series. Any such notice may be canceled at any
time prior to the mailing of such notice of such redemption to any Holder and shall thereupon be void and of no effect. A redemption or notice thereof may be subject to one or more conditions.
Section 3.03 Selection of Securities To Be Redeemed.
If less than all of the Securities of any series are to be redeemed
(unless all of the Securities of such series of a specified tenor are to be redeemed), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the outstanding Securities of
such series (and tenor) not previously called for redemption, either pro rata, by lot or by such other method as the Trustee shall deem appropriate in accordance with industry standards at the time of such redemption and that may provide for the
selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount of Global Securities of such series; provided that, if at the time of redemption such Securities are registered as a Global Security, the Depositary shall determine, in
accordance with its procedures, the principal amount of such Securities held by each beneficial owner of Securities to be redeemed.
The Trustee shall promptly notify the Company and the Registrar in
writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of any of the Securities redeemed or to be redeemed only in part, to the portion of the principal amount thereof which has been or is to be redeemed.
Section 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at the address of such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price (or the method of calculating or determining the
Redemption Price);
(3) that, unless the Company and the Guarantors default in making the
redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Securities is to receive payment of the Redemption Price upon surrender to the
Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of the
principal amount thereof to be redeemed and that on and after the Redemption Date, upon surrender for cancellation of such Security to the Paying Agent, a new Security or Securities in the aggregate principal amount equal to the unredeemed portion
thereof will be issued without charge to the Holder;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price and the name and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if such is the
case;
(7) the CUSIP or ISIN number, if any, relating to such Securities; and
(8) if the redemption or notice thereof is subject to one or more
conditions, a statement to such effect and the condition or conditions precedent.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company’s written request, by the Trustee in the name and at the expense of the Company; provided, however, that the Company shall have delivered to the Trustee at least 45 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee), as provided in Section 3.02, an Officers’ Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the
second preceding paragraph.
Section 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, unless the redemption or notice
thereof is subject to one or more conditions as specified in the notice, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price. Upon surrender to the Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, but interest installments whose maturity is on or prior to such Redemption Date will be payable on the relevant Interest Payment Dates to the Holders of record at the close of business on the relevant
record dates specified pursuant to Section 2.01.
Section 3.06 Deposit of Redemption Price.
By 11:00 a.m., New York City time, on any Redemption Date, the Company
or a Guarantor shall deposit with the Trustee or the Paying Agent (or, if the Company or such Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in Section 2.06) an amount of money in same day funds sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on and any Additional Amounts with respect to, the Securities or portions thereof which are to be redeemed on that date, other than Securities
or portions thereof called for redemption on that date which have been delivered by the Company or a Guarantor to the Trustee for cancellation.
If the Company or a Guarantor complies with the preceding paragraph,
then, unless the Company or the Guarantors default in the payment of such Redemption Price, interest on the Securities to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Securities are presented for
payment, and the Holders of such Securities shall have no further rights with respect to such Securities except for the right to receive the Redemption Price upon surrender of such Securities. If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal, premium, if any, any Additional Amounts, and, to the extent lawful, accrued interest thereon shall, until paid, bear interest from the Redemption Date at the rate specified pursuant to
Section 2.01 or provided in the Securities or, in the case of Original Issue Discount Securities, such Securities’ yield to maturity.
Section 3.07 Securities Redeemed in Part.
Upon surrender to the Paying Agent of a Security to be redeemed in part,
the Company shall execute, each Guarantor with respect to such series shall execute the Notation of Guarantee relating to such Security, if any, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge a
new Security or Securities, of the same series and of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Security so surrendered that is
not redeemed.
Section 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01, the Company,
any Guarantor or any Affiliate of the Company or any Guarantor may, subject to applicable law, at any time purchase or otherwise acquire Securities in the open market or by private agreement. Any such acquisition shall not operate as or be deemed for
any purpose to be a redemption of the indebtedness represented by such Securities. Any Securities purchased or acquired by the Company or a Guarantor may be delivered to the Trustee and, upon such delivery, the indebtedness represented thereby shall
be deemed to be satisfied. Section 2.13 shall apply to all Securities so delivered.
Section 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment.” Unless otherwise provided by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.10. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of Securities of such series and by this Article III.
Section 3.10 Satisfaction of Sinking Fund Payments with
Securities.
The Company or a Guarantor may deliver outstanding Securities of a
series (other than any previously called for redemption) and may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such
series of Securities; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 3.11 Redemption of Securities for Sinking Fund.
Not less than 5 Business Days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivery of or by crediting Securities of that series pursuant to Section 3.10 and will
also deliver or cause to be delivered to the Trustee any Securities to be so delivered. Failure of the Company to timely deliver or cause to be delivered such Officers’ Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute the election of the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this Section 3.11.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $100,000 (or the Dollar equivalent thereof based on the applicable Exchange Rate on the date
of original issue of the applicable Securities) or a lesser sum if the Company shall so request with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof as aforesaid) or less and the Company makes no such
request then it shall be carried over until a sum in excess of $100,000 (or the Dollar equivalent thereof as aforesaid) is available. Not less than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 3.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.04. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.05, Section 3.06 and Section 3.07.
Article IV
Covenants
Section 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if any) and interest on
and any Additional Amounts with respect to the Securities of each series on the dates and in the manner provided in the Securities of such series and in this Indenture. Principal, premium, interest and any Additional Amounts shall be considered paid
on the date due if the Paying Agent (other than the Company, a Guarantor or a Subsidiary) holds by 11:00 a.m., New York City time, on that date money deposited by the Company or a Guarantor designated for and sufficient to pay all principal, premium,
interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium (if any), at a rate equal to the then applicable interest rate on the Securities to the extent lawful; and it shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and any Additional Amount (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities of that series may be presented for registration of transfer or exchange, where Securities of that series may be presented for
payment and where notices and demands to or upon the Company or a Guarantor in respect of the Securities of that series and this Indenture may be served. Unless otherwise designated by the Company by written notice to the Trustee and the Guarantors,
such office or agency shall be the office of the Trustee in The City of New York, which on the date hereof is located at [●]. The Company will give prompt written notice to the Trustee and the Guarantors of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and the Guarantors with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
Section 4.03 SEC Reports; Financial Statements.
(1) If the Company is subject to the requirements of Section 13 or 15(d)
of the Exchange Act, the Company shall, so long as any of the Securities are outstanding, file with the Trustee, within 15 days after it files the same with the SEC, copies of the annual reports and the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If this Indenture is qualified under the TIA,
but not otherwise, the Company shall also comply with the provisions of TIA § 314(a). Delivery of such reports, information and documents to the Trustee shall be for informational purposes only, and the Trustee’s receipt thereof shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Company’s and the Guarantors’ compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates or certificates delivered pursuant to Section 4.04).
(2) If the Company is not subject to the requirements of Section 13 or
15(d) of the Exchange Act, the Company shall furnish to all Holders of Rule 144A Securities and prospective purchasers of Rule 144A Securities designated by the Holders of Rule 144A Securities, promptly upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) promulgated under the Securities Act of 1933, as amended.
(3) The Company intends to file the reports, information and documents
referred to in Section 4.03(1) hereof with the SEC in electronic form pursuant to Regulation S-T promulgated by the SEC using the SEC’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system. The Trustee is hereby authorized
and directed to access the EDGAR system for purposes of retrieving the reports so filed. Compliance with the foregoing shall constitute delivery by the Company of such reports to the Trustee in compliance with the provisions of TIA § 314(a). The
Trustee shall have no duty to search for or obtain any electronic or other filings that the Company makes with the SEC, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of the reports, information and documents to
the Trustee pursuant to this Section 4.03 shall be solely for the purposes of compliance with this Section 4.03 and with TIA § 314(a). The Trustee’s receipt of such reports, information and documents shall not constitute notice to it of the content
thereof or of any matter determinable from the content thereof, including the Company’s and any Guarantor’s compliance with any of their covenants hereunder, as to which the Trustee is entitled to rely upon Officers’ Certificates.
Section 4.04 Compliance Certificate.
(1) The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, within 120 days after the end of each fiscal year of the Company a statement signed by an Officer of the Company, which need not constitute an Officers’ Certificate, complying with TIA § 314(a)(4) and stating that in the
course of performance by the signing Officer of his or her duties as such Officer of the Company, he or she would normally obtain knowledge of the keeping, observing, performing and fulfilling by the Company and any Guarantor of its obligations under
this Indenture, and further stating that to the best of his or her knowledge the Company and any Guarantor has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which such Officer may have knowledge and what action the Company and any
Guarantor is taking or proposes to take with respect thereto).
(2) The Company shall, so long as Securities of any series are
outstanding, deliver to the Trustee, as soon as practicable, but in no event more than 20 Business Days, after any Officer of the Company becomes aware of any Default or Event of Default under this Indenture, an Officers’ Certificate specifying such
Default or Event of Default and what action the Company and any Guarantor is taking or proposes to take with respect thereto.
Section 4.05 Existence.
Except as permitted by Article V, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its existence. This Section 4.05 shall not prohibit or restrict the Company from converting into a different form of legal entity.
Section 4.06 Waiver of Stay, Extension or Usury Laws.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law, wherever enacted, now or at any time hereafter in force, that
may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company and each of the Guarantors hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by
resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Article V
Successors
Section 5.01 Limitations on Mergers and Consolidations.
Neither the Company nor any Guarantor shall consolidate with or merge
into any Person, or sell, lease, convey, assign, transfer or otherwise dispose of, in any transaction or series of transactions, all or substantially all of its and its Subsidiaries’ assets take as a whole to any Person (other than a consolidation or
merger of the Company and one or more Guarantors or two or more Guarantors, or a sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the assets of the Company to a Guarantor, a Guarantor to the Company or
of a Guarantor to another Guarantor), unless:
(1) either (a) the Company or such Guarantor, as the case may be, shall be
the continuing Person or (b) the Person (if other than the Company or such Guarantor) formed by such consolidation or into which the Company or such Guarantor is merged, or to which such sale, lease, conveyance, assignment, transfer or other
disposition shall be made (collectively, the “Successor”), is organized and validly existing under the laws of the United States, any political subdivision thereof or any State thereof or the District of Columbia, and expressly assumes
by supplemental indenture, in the case of the Company, the due and punctual payment of the principal of, premium (if any) and interest on and any Additional Amounts with respect to all the Securities and the performance of the Company’s covenants and
obligations under this Indenture and the Securities, or, in the case of such Guarantor, the performance of the Guarantee and such Guarantor’s covenants and obligations under this Indenture and the Securities; and
(2) immediately after giving effect to such transaction or series of
transactions, no Default or Event of Default shall have occurred and be continuing or would result therefrom.
Section 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or a Guarantor, as the
case may be, or any sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the assets of the Company or such Guarantor in accordance with Section 5.01, the Successor formed by such consolidation or into or
with which the Company or such Guarantor is merged or to which such sale, lease, conveyance, assignment, transfer or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of the Company or such
Guarantor, as the case may be, under this Indenture and the Securities with the same effect as if such Successor had been named as the Company or such Guarantor, as the case may be, herein and the predecessor Company or Guarantor, in the case of a
sale, lease, conveyance, assignment, transfer or other disposition, shall be released from all obligations and covenants under this Indenture, the Securities and, in the case of a Guarantor, its Guarantee.
Article VI
Defaults and Remedies
Section 6.01 Events of Default.
Unless either inapplicable to a particular series or specifically
deleted or modified in or pursuant to the supplemental indenture or Board Resolution establishing such series of Securities or in the form of Security for such series, an “Event of Default,” wherever used herein with respect to
Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any Additional
Amounts with respect to any Security of that series when the same becomes due and payable and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of or premium, if
any, on any Securities of that series as and when the same shall become due and payable, whether at Stated Maturity, upon redemption, by declaration, upon required repurchase or otherwise;
(3) the Company defaults in the deposit of any sinking fund payment with
respect to any Securities of that series as and when the same shall become due and payable, and such default continues for a period of 30 days;
(4) the Company fails to comply with any of its other agreements in this
Indenture (other than an agreement, covenant or provision that has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than that series) which shall not have been remedied within the specified
period after written notice, as specified in the last paragraph of this Section 6.01;
(5) the Company, or if that series of Securities is entitled to the
benefits of a Guarantee by any Guarantor that is a Significant Subsidiary, any such Guarantor, pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Bankruptcy Custodian of it or for all
or substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that remains unstayed and in effect for 90 days and that:
(a) is for relief against the Company or any Guarantor with respect to
such series that is a Significant Subsidiary as debtor in an involuntary case,
(b) appoints a Bankruptcy Custodian of the Company or any Guarantor with
respect to such series that is a Significant Subsidiary, or
(c) orders the liquidation of the Company or any Guarantor with respect to
such series that is a Significant Subsidiary;
(7) if that series of Securities is entitled to the benefits of a
Guarantee by the Guarantors, the Guarantee of any of such Guarantors ceases to be in full force and effect with respect to Securities of that series (except as otherwise provided in this Indenture) or is declared null and void in a judicial
proceeding, or any such Guarantor denies or disaffirms its obligations under this Indenture or such Guarantee; or
(8) any other Event of Default provided with respect to Securities of that
series occurs.
The term “Bankruptcy Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
When a Default or Event of Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the
principal of, premium (if any) or interest on or Additional Amounts with respect to any Security is payable in a currency or currencies (including a composite currency) other than Dollars and such currency or currencies are not available to the
Company or a Guarantor for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company or such Guarantor, the Company will be entitled to satisfy its obligations to Holders of the
Securities by making such payment in Dollars in an amount equal to the Dollar equivalent of the amount payable in such other currency, as determined by the Company or the Guarantor, as the case may be, by reference to the Exchange Rate on the date of
such payment, or, if such rate is not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made under such circumstances in Dollars where the required
payment is in a currency other than Dollars will not constitute an Event of Default under this Indenture.
A Default under clauses (4) or (8) of this Section 6.01 is not an Event
of Default until the Trustee notifies the Company and the Guarantors, or the Holders of at least 25% in aggregate principal amount of the then outstanding Securities of the series affected by such Default (or, in the case of a Default under clause
(4) of this Section 6.01, if outstanding Securities of other series are affected by such Default, then at least 25% in aggregate principal amount of the then outstanding Securities so affected) notify the Company, the Guarantors and the Trustee, of
the Default, and the Company or the applicable Guarantor, as the case may be, fails to cure the Default within 90 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a “Notice
of Default.”
Section 6.02 Acceleration.
If an Event of Default with respect to any Securities of any series at
the time outstanding (other than an Event of Default specified in clauses (5) or (6) of Section 6.01) occurs and is continuing, the Trustee by notice to the Company and the Guarantors, or the Holders of at least 25% in aggregate principal amount of
the then outstanding Securities of the series affected by such Event of Default (or, in the case of an Event of Default described in clause (4) of Section 6.01, if outstanding Securities of other series are affected by such Event of Default, then at
least 25% in aggregate principal amount of the then outstanding Securities so affected voting as one class) by notice to the Company, the Guarantors and the Trustee, may declare the principal of (or, if any such Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the terms of that series) and all accrued and unpaid interest on all then outstanding Securities of such series or of all series, as the case may be, to be due and payable. Upon
any such declaration, the amounts due and payable on the Securities shall be due and payable immediately. If an Event of Default specified in clauses (5) or (6) of Section 6.01 hereof occurs, such amounts shall ipso facto become and be immediately
due and payable without any declaration, notice or other act on the part of the Trustee or any Holder. The Holders of a majority in aggregate principal amount of the then outstanding Securities of the series affected by such Event of Default or all
series so affected, as the case may be, by written notice to the Trustee may rescind an acceleration and its consequences (other than nonpayment of principal of or premium or interest on or any Additional Amounts with respect to the Securities) if
the rescission would not conflict with any judgment or decree and if all existing Events of Default with respect to Securities of that series (or of all series, as the case may be) have been cured or waived, except nonpayment of principal, premium,
interest or any Additional Amounts that has become due solely because of the acceleration.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, or premium, if any, or interest on the Securities or to enforce the rights vested in it by this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Defaults.
Subject to Section 6.07 and Section 9.02, the Holders of a majority in
aggregate principal amount of the then outstanding Securities of any series or of all series affected thereby (acting as one class) by notice to the Trustee may waive an existing or past Default or Event of Default with respect to such series or all
series so affected, as the case may be, and its consequences (including waivers obtained in connection with a tender offer or exchange offer for Securities of such series or all series so affected or a solicitation of consents in respect of
Securities of such series or all series so affected, provided that in each case such offer or solicitation is made to all Holders of then outstanding Securities of such series or all series so affected (but the terms of such offer or solicitation may
vary from series to series)), except (1) a continuing Default or Event of Default in the payment of the principal of, or premium, if any, or interest on or any Additional Amounts with respect to any Security or (2) a continued Default in respect of a
provision that under Section 9.02 cannot be amended or supplemented without the consent of each Holder affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a majority in
aggregate principal amount of the then outstanding Securities of such series may direct in writing the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it
relating to or arising as a result of an Event of Default described in clauses (1), (2), (3) or (7) of Section 6.01, and with respect to all Securities, the Holders of a majority in aggregate principal amount of all the then outstanding Securities
affected may direct in writing the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it not relating to or arising under such an Event of Default. However, the
Trustee may refuse to follow any direction that conflicts with applicable law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of other Holders, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion from Holders directing the Trustee against all losses and expenses caused by taking or not taking such action.
Section 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any series may
pursue a remedy with respect to this Indenture or the Securities of such series or the related Guarantees, if any, only if:
(1) the Holder has previously given to the Trustee written notice of a
continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in aggregate principal amount of the then
outstanding Securities of such series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in aggregate
principal amount of the Securities of such series do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such use by a Holder prejudices the rights of any other Holder or obtains
preference or priority over such other Holder).
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and premium, if any, and interest on and any Additional Amounts with respect to the Security, on or after the respective due dates expressed in the Security, or to bring suit for the enforcement
of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in clauses (1) or (2) of Section 6.01
hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company or a Guarantor for the amount of principal, premium (if any), interest and any Additional Amounts
remaining unpaid on the Securities of the series affected by the Event of Default, and interest on overdue principal and premium, if any, and, to the extent lawful, interest on overdue interest, and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents and to take such actions, including participating as a member, voting or otherwise, of any committee of creditors, as may be necessary or advisable to have the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relative to the Company or a Guarantor or their respective creditors or properties and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or deliverable on any such claims and any Bankruptcy Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out
of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties which the Holders of the
Securities may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in
respect of which or for the benefit of which such money has been collected, for principal, premium (if any), interest and any Additional Amounts ratably, without preference or priority of any kind, according to the amounts due and payable on such
Securities for principal, premium (if any), interest and any Additional Amounts, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix record
dates and payment dates for any payment to Holders pursuant to this Article VI.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining a judgment against the Company or a Guarantor in any court it is necessary to convert the sum due in respect of the principal of, premium (if any) or interest on or Additional Amounts with respect to the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used for purposes of rendering the judgment shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the Business Day in The City of New York next preceding that on which final judgment is given. None of the Company, any Guarantor or the
Trustee shall be liable for any shortfall nor shall it benefit from any windfall in payments to Holders of Securities under this Section 6.10 caused by a change in exchange rates between the time the amount of a judgment against it is calculated as
above and the time the Trustee converts the Judgment Currency into the Required Currency to make payments under this Section 6.10 to Holders of Securities, but payment of such judgment shall discharge all amounts owed by the Company and the
Guarantors on the claim or claims underlying such judgment.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by it as a trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in aggregate principal amount of the then outstanding Securities of any series.
Article VII
Trustee
Section 7.01 Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in such exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(2) Except during the continuance of an Event of Default with respect to
the Securities of any series:
(a) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine such
certificates and opinions to determine whether, on their face, they appear to conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act or its own willful misconduct, except that:
(a) this paragraph does not limit the effect of Section 7.01(2);
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(4) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to the provisions of this Section 7.01.
(5) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company and the Guarantors. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. All money received by the Trustee shall, until applied
as herein provided, be held in trust for the payment of the principal of, premium (if any) and interest on and Additional Amounts with respect to the Securities.
Section 7.02 Rights of Trustee.
(1) The Trustee may conclusively rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
instruction, an Officers’ Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such instruction, Officers’ Certificate or Opinion of
Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(3) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company or any Guarantor shall be sufficient if signed by an Officer of the Company or such Guarantor, as the case may be.
(6) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or direction.
(7) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(8) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
(9) The rights, privileges,
protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other
Person employed to act hereunder.
Section 7.03 May Hold
Securities.
The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company, any Guarantor or any of their respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with
like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
Section 7.04 Trustee’s
Disclaimer.
The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities or any money paid to the Company or any Guarantor or upon the Company’s or such
Guarantor’s direction under any provision hereof, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee and it shall not be responsible for any statement or recital herein or any
statement in the Securities other than its certificate of authentication.
Section 7.05 Notice of
Defaults.
If a Default or Event of Default
with respect to the Securities of any series occurs and is continuing and it is known to the Trustee, the Trustee shall mail to Holders of Securities of such series a notice of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of, premium (if any) and interest on and Additional Amounts or any sinking fund installment with respect to the Securities of such series, the Trustee may withhold the notice if and so
long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interests of Holders of Securities of such series.
Section 7.06 Reports by
Trustee to Holders.
Within 60 days after each of each
year after the execution of this Indenture, the Trustee shall mail to Holders of a series, the Guarantors and the Company a brief report dated as of such reporting date that complies with TIA § 313(a); provided, however, that if no event described in
TIA § 313(a) has occurred within the twelve months preceding the reporting date with respect to a series, no report need be transmitted to Holders of such series. The Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by
mail all reports if and as required by TIA §§ 313(c) and 313(d).
Section 7.07 Compensation and
Indemnity.
The Company agrees to pay to the
Trustee for its acceptance of this Indenture and services hereunder such compensation as the Company and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Company agrees to reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s
agents and counsel.
The Company hereby indemnifies the
Trustee and any predecessor Trustee against any and all loss, liability, damage, claim or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture, except as set forth in the next following paragraph. The Trustee shall notify the Company and the Guarantors promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its
consent.
The Company shall not be obligated
to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through the Trustee’s negligence, willful misconduct or bad faith.
To secure the payment obligations
of the Company in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium (if any) and interest on and any Additional
Amounts with respect to Securities of any series. Such lien and the Company’s obligations under this Section 7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Sections 6.01(5) or (6) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.08 Replacement of
Trustee.
A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing
and be discharged at any time with respect to the Securities of one or more series by so notifying the Company and the Guarantors. The Holders of a majority in aggregate principal amount of the then outstanding Securities of any series may remove the
Trustee with respect to the Securities of such series by so notifying the Trustee, the Company and the Guarantors in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with
Section 7.10;
(2) the Trustee is adjudged a
bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Bankruptcy Custodian or public
officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes
incapable of acting.
If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series).
Within one year after the successor Trustee with respect to the Securities of any series takes office, the Holders of a majority in aggregate principal amount of the Securities of such series then outstanding may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any series does not take office within 60 days after the retiring or removed Trustee resigns or is removed, the retiring or removed Trustee, the Company, any Guarantor or the Holders of at least 10% in aggregate principal
amount of the then outstanding Securities of such series may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If the Trustee with respect to the
Securities of a series fails to comply with Section 7.10, any Holder of Securities of such series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the
Securities of such series.
In case of the appointment of a
successor Trustee with respect to all Securities, each such successor Trustee shall deliver a written acceptance of its appointment to the retiring or removed Trustee, to the Company and to the Guarantors. Thereupon the resignation or removal of the
retiring or removed Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the retiring or removed Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring or removed Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.
In case of the appointment of a
successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantors, the retiring or removed Trustee and each successor Trustee with respect to the Securities of one or more (but not all) series shall
execute and deliver an indenture supplemental hereto in which each successor Trustee shall accept such appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties of the retiring or removed Trustee with respect
to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring or removed Trustee is not retiring or removed with respect to all Securities, shall confirm that all the rights, powers and
duties of the retiring or removed Trustee with respect to the Securities of that or those series as to which the retiring or removed Trustee is not retiring or removed shall continue to be vested in the retiring or removed Trustee and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee. Nothing herein or in such supplemental indenture shall constitute such
Trustees as co-trustees of the same trust, and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring or removed Trustee shall become effective to the extent provided therein and each such successor Trustee shall have all the rights, powers and duties of the retiring or removed
Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. On request of the Company or any successor Trustee, such retiring or removed Trustee shall transfer to such successor Trustee
all property held by such retiring or removed Trustee as Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Notwithstanding replacement of the
Trustee or Trustees pursuant to this Section 7.08, the obligations of the Company under Section 7.07 shall continue for the benefit of the retiring Trustee or Trustees.
Section 7.09 Successor Trustee
by Merger, etc.
Subject to Section 7.10, if the
Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided, however, that in
the case of a transfer of all or substantially all of its corporate trust business to another corporation, the transferee corporation expressly assumes all of the Trustee’s liabilities hereunder.
In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated; and in case at that
time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
Section 7.10 Eligibility;
Disqualification.
There shall at all times be a
Trustee hereunder which shall be a corporation or banking or trust company or association organized and doing business under the laws of the United States, any State thereof or the District of Columbia and authorized under such laws to exercise
corporate trust power, shall be subject to supervision or examination by federal or state (or the District of Columbia) authority and shall have, or be a subsidiary of a bank or bank holding company having, a combined capital and surplus of at least
$50 million as set forth in its most recent published annual report of condition.
The Indenture shall always have a
Trustee who satisfies the requirements of TIA §§ 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA § 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA § 310(b).
Section 7.11 Preferential
Collection of Claims Against the Company or a Guarantor.
The Trustee is subject to and
shall comply with the provisions of TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
Article VIII
Discharge of Indenture
Section 8.01 Termination of
the Company’s and the Guarantors’ Obligations.
(1) This Indenture shall cease to be
of further effect with respect to the Securities of a series (except that the Company’s obligations under Section 7.07, the Trustee’s and Paying Agent’s obligations under Section 8.03 and the rights, powers, protections and privileges accorded the
Trustee under Article VII shall survive), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to the Securities of such series, when:
(a) either:
(i) all outstanding Securities of
such series theretofore authenticated and issued (other than destroyed, lost or stolen Securities that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all outstanding Securities of
such series not theretofore delivered to the Trustee for cancellation:
(A) have become due and payable,
or
(B) will become due and payable at
their Stated Maturity within one year, or
(C) are to be called for
redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and, in the case of clause (A), (B) or (C) above, the Company or a
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as funds (immediately available to the Holders in the case of clause (A)) in trust for such purpose (x) cash in an amount, or (y) Government Obligations with respect to
such series, maturing as to principal and interest at such times and in such amounts as will ensure the availability of cash in an amount or (z) a combination thereof, which will be sufficient, in the opinion (in the case of clauses (y) and (z)) of a
nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on the Securities of such series for principal and interest to the date
of such deposit (in the case of Securities which have become due and payable) or for principal, premium, if any, and interest to the Stated Maturity or Redemption Date, as the case may be; or
(iii) the Company and the Guarantors
have properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 2.01, to be applicable to the Securities of such series;
(b) the Company or a Guarantor has
paid or caused to be paid all other sums payable by them hereunder with respect to the Securities of such series; and
(c) the Company has delivered to the
Trustee an Officers’ Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with, together with an Opinion of Counsel to the same effect.
(2) Unless this Section 8.01(2) is
specified as not being applicable to Securities of a series as contemplated by Section 2.01, the Company may, at its option, terminate certain of their and the Guarantors’ respective obligations under this Indenture (“covenant defeasance”)
with respect to the Securities of a series if:
(a) the Company or a Guarantor has
irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of
Securities of such series, (i) money in the currency in which payment of the Securities of such series is to be made in an amount, or (ii) Government Obligations with respect to such series, maturing as to principal and interest at such times and in
such amounts as will ensure the availability of money in the currency in which payment of the Securities of such series is to be made in an amount or (iii) a combination thereof, that is sufficient, in the opinion (in the case of clauses (ii) and
(iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest on all Securities of such series on each date
that such principal, premium (if any) or interest is due and payable and (at the Stated Maturity thereof or upon redemption as provided in Section 8.01(5)) to pay all other sums payable by it hereunder; provided that the Trustee shall have been
irrevocably instructed to apply such money and/or the proceeds of such Government Obligations to the payment of said principal, premium (if any) and interest with respect to the Securities of such series as the same shall become due;
(b) the Company has delivered to the
Trustee an Officers’ Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with, and an Opinion of Counsel to the same effect;
(c) no Default or Event of Default
with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered
to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee or a private letter ruling issued by the United States Internal Revenue Service to the effect that the Holders will not recognize income, gain or loss
for United States Federal income tax purposes as a result of the Company’s exercise of its option under this Section 8.01(2) and will be subject to United States Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised;
(e) the Company and the Guarantors
have complied with any additional conditions specified pursuant to Section 2.01 to be applicable to the discharge of Securities of such series pursuant to this Section 8.01; and
(f) such deposit and discharge shall
not cause the Trustee to have a conflicting interest as defined in TIA § 310(b).
In such event, (1) this Indenture
shall cease to be of further effect (except as set forth in this paragraph), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging satisfaction and discharge under this Indenture and (2) the Guarantee with respect
to the Securities, if any, will automatically terminate and be automatically released and discharged, and any Security that may have been granted in respect of such series shall be automatically released. However, the Company’s obligations in
Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08, 8.04 and 10.01, the Trustee’s and Paying Agent’s obligations in Section 8.03 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive until
all Securities of such series are no longer outstanding. Thereafter, only the Company’s obligations in Section 7.07 and the Trustee’s and Paying Agent’s obligations in Section 8.03 shall survive with respect to Securities of such series.
After such irrevocable deposit
made pursuant to this Section 8.01(2) and satisfaction of the other conditions set forth herein, the Trustee upon request shall acknowledge in writing the discharge of the Company’s and the Guarantors’ obligations under this Indenture with respect to
the Securities of such series except for those surviving obligations specified above.
In order to have money available
on a payment date to pay principal of or premium (if any) or interest on the Securities, the Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money.
Government Obligations shall not be callable at the Company’s option.
(3) If the Company and the
Guarantors have previously complied or are concurrently complying with Section 8.01(2) (other than any additional conditions specified pursuant to Section 2.01 that are expressly applicable only to covenant defeasance) with respect to Securities of a
series, then, unless this Section 8.01(3) is specified as not being applicable to Securities of such series as contemplated by Section 2.01, the Company may elect that its and the Guarantors’ respective obligations to make payments with respect to
Securities of such series be discharged (“legal defeasance”), if:
(a) no Default or Event of Default
under clauses (5) and (6) of Section 6.01 hereof shall have occurred and be continuing on the date of compliance under this Section 8.01(3);
(b) unless otherwise specified with
respect to Securities of such series as contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee to the effect referred to in Section 8.01(2)(d) with
respect to such legal defeasance, which opinion is based on (i) a private letter ruling issued by the United States Internal Revenue Service addressed to the Company, (ii) a published ruling of the United States Internal Revenue Service pertaining to
a comparable form of transaction or (iii) a change in the applicable federal income tax law (including regulations) after the date of this Indenture;
(c) the Company and the Guarantors
have complied with any other conditions specified pursuant to Section 2.01 to be applicable to the legal defeasance of Securities of such series pursuant to this Section 8.01(3); and
(d) the Company has delivered to the
Trustee a Company Order requesting such legal defeasance of the Securities of such series and an Officers’ Certificate stating that all conditions precedent with respect to such legal defeasance of the Securities of such series have been complied
with, together with an Opinion of Counsel to the same effect.
In such event, the Company and the
Guarantors will be discharged from their respective obligations under this Indenture and the Securities of such series to pay principal of, premium (if any) and interest on, and any Additional Amounts with respect to, Securities of such series, the
Company’s and the Guarantors’ respective obligations under Sections 4.01, 4.02 and 10.01 shall terminate with respect to such Securities, and the entire indebtedness of the Company evidenced by such Securities and of the Guarantors evidenced by the
related Guarantees, if any, shall be deemed paid and discharged.
(4) If and to the extent additional
or alternative means of satisfaction, discharge or defeasance of Securities of a series are specified to be applicable to such series as contemplated by Section 2.01, the Company and each of the Guarantors may terminate any or all of its obligations
under this Indenture with respect to Securities of a series and any or all of its obligations under the Securities of such series if it fulfills such other means of satisfaction and discharge as may be so specified, as contemplated by Section 2.01,
to be applicable to the Securities of such series.
(5) If Securities of any series
subject to subsections (1), (2), (3) or (4) of this Section 8.01 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory or optional sinking fund provisions, the
terms of the applicable trust arrangement shall provide for such redemption, and the Company shall make such arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense of, the Company.
Section 8.02 Application of
Trust Money.
The Trustee or a trustee
satisfactory to the Trustee and the Company shall hold in trust money or Government Obligations deposited with it pursuant to Section 8.01 hereof. It shall apply the deposited money and the money from Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of, premium (if any) and interest on and any Additional Amounts with respect to the Securities of the series with respect to which the deposit was made.
Section 8.03 Repayment to
Company or Guarantor.
The Trustee and the Paying Agent
shall promptly pay to the Company or any Guarantor any excess money or Government Obligations (or proceeds therefrom) held by them at any time upon the written request of the Company.
Subject to the requirements of any
applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if any), interest or any Additional Amounts that remain unclaimed for two
years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
Section 8.04 Reinstatement.
If the Trustee or the Paying Agent
is unable to apply any money or Government Obligations deposited with respect to Securities of any series in accordance with Section 8.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company and the Guarantors under this Indenture with respect to the Securities of such series and under the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money or Government Obligations in accordance with Section 8.01; provided, however, that if the
Company or any Guarantor has made any payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Securities because of the reinstatement of its obligations, the Company or such Guarantor, as the case may
be, shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee or the Paying Agent.
Section 8.05 Miscellaneous
Provisions.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 8.01 or the principal and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
Article IX
Supplemental Indentures and Amendments
Section 9.01 Without Consent
of Holders.
The Company, the Guarantors and
the Trustee may amend or supplement this Indenture or the Securities or waive any provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission,
defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to provide for the issuance of bearer Securities (with or without coupons);
(4) to provide any security for, or
to add any guarantees of or additional obligors on, any series of Securities or the related Guarantees, if any;
(5) to comply with any requirement
in order to effect or maintain the qualification of this Indenture under the TIA;
(6) to add to the covenants of the
Company or any Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power herein conferred upon the Company or any Guarantor;
(7) to add any additional Events of
Default with respect to all or any series of the Securities (and, if any such Event of Default is applicable to less than all series of Securities, specifying the series to which such Event of Default is applicable);
(8) to change or eliminate any of
the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no outstanding Security of any series created prior to the execution of such amendment or supplemental indenture that is
adversely affected in any material respect by such change in or elimination of such provision; provided, further, that any change made solely to conform the provisions of this Indenture to the description of any Security in a prospectus supplement
pursuant to which such Securities were offered and sold will not be deemed to adversely affect any Security of that series in any material respect;
(9) to establish the form or terms
of Securities of any series as permitted by Section 2.01;
(10) to supplement any of the
provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 8.01; provided, however, that any such action shall not adversely affect the
interest of the Holders of Securities of such series or any other series of Securities in any material respect; or
(11) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 7.08.
Upon the request of the Company,
accompanied by a Board Resolution, and upon receipt by the Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company and the Guarantors in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and make any further appropriate agreements and stipulations that may be therein contained.
Notwithstanding anything to the
contrary in this Section 9.01, it shall not be necessary for any Guarantor to join with the Company and the Trustee in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture unless such supplemental
indenture applies to a series of Securities entitled to the benefit of a Guarantee by such Guarantor.
Section 9.02 With Consent of
Holders.
Except as provided below in this
Section 9.02, the Company, the Guarantors and the Trustee may amend or supplement this Indenture with the written consent (including consents obtained in connection with a tender offer or exchange offer for Securities of any one or more series or all
series or a solicitation of consents in respect of Securities of any one or more series or all series of the Holders of at least a majority in aggregate principal amount of the then outstanding Securities of each series affected by such amendment or
supplement (acting as one class)).
Upon the request of the Company,
accompanied by a Board Resolution, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06,
join with the Company and the Guarantors in the execution of such amendment or supplemental indenture.
It shall not be necessary for the
consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in
aggregate principal amount of the then outstanding Securities of one or more series or of all series (acting as one class) may waive compliance in a particular instance by the Company or any Guarantor with any provision of this Indenture with respect
to Securities of such series (including waivers obtained in connection with a tender offer or exchange offer for Securities of such series or a solicitation of consents in respect of Securities of such series, provided that in each case such offer or
solicitation is made to all Holders of then outstanding Securities of such series (but the terms of such offer or solicitation may vary from series to series)).
However, without the consent of
each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not:
(1) reduce the percentage in payment
amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the
time for payment of interest, including default interest, on any Security;
(3) reduce the principal of, any
premium on or any mandatory sinking fund payment with respect to, or change the Stated Maturity of, any Security or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.02;
(4) waive a redemption premium with
respect to any Security or change the time at which any Security may or shall be redeemed;
(5) change any obligation of the
Company or any Guarantor to pay Additional Amounts with respect to any Security;
(6) impair the right to institute
suit for the enforcement of any payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Security pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;
(7) make any change in the
percentage of principal amount of Securities necessary to waive compliance with certain provisions of this Indenture pursuant to Sections 6.04 or 6.07 or make any change in this sentence of Section 9.02;
(8) waive a continuing Default or
Event of Default in the payment of principal of, premium (if any) or interest on or Additional Amounts with respect to the Securities (except rescission of acceleration as permitted in this Indenture); or
(9) except as provided in Article
VIII or Section 10.04, release any Guarantor or modify the related Guarantee in any manner materially adverse to the Holders.
A supplemental indenture that
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
The right of any Holder to
participate in any consent required or sought pursuant to any provision of this Indenture (and the obligation of the Company or any Guarantor to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such
Holder shall have been the Holder of record of any Securities with respect to which such consent is required or sought as of a date identified by the Company or such Guarantor in a notice furnished to Holders in accordance with the terms of this
Indenture.
After an amendment, supplement or
waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders of each Security affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
Notwithstanding anything to the
contrary in this Section 9.02, it shall not be necessary for any Guarantor to join with the Company and the Trustee in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture unless such supplemental
indenture applies to a series of Securities entitled to the benefit of a Guarantee by such Guarantor.
Section 9.03 Compliance with
the Trust Indenture Act.
Every amendment or supplement to
this Indenture or the Securities shall comply in form and substance with the TIA as then in effect.
Section 9.04 Revocation and
Effect of Consents.
Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his or her Security or portion of a Security if the Trustee receives written notice of revocation before a date and time therefor
identified by the Company or any Guarantor in a notice furnished to such Holder in accordance with the terms of this Indenture or, if no such date and time shall be identified, the date the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Company or any Guarantor may,
but shall not be obligated to, fix a record date (which need not comply with TIA § 316(c)) for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver or to take any other action under this Indenture. If a
record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents
from Holders of the principal amount of Securities required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or
waiver becomes effective, it shall bind every Holder, unless it is of the type described in any of clauses (1) through (8) of Section 9.02 hereof. In such case, the amendment, supplement or waiver shall bind each Holder who has consented to it and
every subsequent Holder of a Security that evidences all or a portion of the same debt as the consenting Holder’s Security.
Section 9.05 Notation on or
Exchange of Securities.
If an amendment or supplement
changes the terms of an outstanding Security, the Company may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security at the request of the Company regarding the changed terms and
return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the Security shall issue, each Guarantor with respect to such series shall execute the Notation of Guarantee relating to such Security, if any, and the
Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment or supplement.
Securities of any series
authenticated and delivered after the execution of any amendment or supplement may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such amendment or supplement.
Section 9.06 Trustee to Sign
Amendments, etc.
The Trustee shall sign any
amendment or supplement authorized pursuant to this Article if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplement, the Trustee shall be entitled to receive, and, subject to Section 7.01 hereof, shall be fully protected in relying upon, in good faith, an Officers’ Certificate and an Opinion of Counsel provided at the
expense of the Company or a Guarantor as conclusive evidence that such amendment or supplement is authorized or permitted by this Indenture.
Article X
Guarantee
Section 10.01 Guarantee.
(1) Notwithstanding any provision of
this Article X to the contrary, the provisions of this Article X relating to the Guarantors shall be applicable only to, and inure solely to the benefit of, the Securities of any series designated, pursuant to Section 2.01, as entitled to the
benefits of the related Guarantee of each of the Guarantors.
(2) For value received, each of the
Guarantors hereby fully, unconditionally and absolutely guarantees (each, a “Guarantee”) to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all
other amounts due and payable under this Indenture and the Securities by the Company, when and as such principal, premium, if any, and interest shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, according to the terms of the Securities and this Indenture, subject to the limitations set forth in Section 10.03.
(3) Failing payment when due of any
amount guaranteed pursuant to the related Guarantee, for whatever reason, each of the Guarantors will be jointly and severally obligated to pay the same immediately. Each of the Guarantees hereunder is intended to be a general, unsecured, senior
obligation of the related Guarantor and will rank pari passu in right of payment with all general unsecured Debt of such Guarantor that is not, by its terms, expressly subordinated in right of payment to such Guarantee. Each of the Guarantors hereby
agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by
any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company or any Guarantor, or any action to enforce the same or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of the Guarantors. Each of the Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities of such series, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06, by the Holders, on the terms and conditions set forth in this Indenture,
directly against such Guarantor to enforce such Guarantee without first proceeding against the Company or any other Guarantor.
(4) The obligations of each of the
Guarantors under this Article X shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement,
release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Company or any of the Guarantors contained in the Securities or this Indenture, (ii) any impairment, modification,
release or limitation of the liability of the Company, any of the Guarantors or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable
Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Company, any of the Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their delay in or
failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Company or any of the Guarantors under this
Indenture, (v) the extension of the time for payment by the Company or any of the Guarantors of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities or this Indenture or of the time
for performance by the Company or any of the Guarantors of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise)
of any duty, agreement or obligation of the Company or any of the Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Company or any of the Guarantors or any of
their respective assets, or the disaffirmance of the Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Company or any of the Guarantors from the performance or observance of any agreement,
covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of the Securities of such series, the related Guarantees or this Indenture or (x) any other circumstances (other than payment in full or
discharge of all amounts guaranteed pursuant to the related Guarantees) which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(5) Each of the Guarantors hereby
(i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Company or any of the Guarantors, and all demands whatsoever, (ii) acknowledges that any agreement,
instrument or document evidencing its Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing its Guarantee without notice to it and (iii)
covenants that its Guarantee will not be discharged except by complete performance of such Guarantee. Each of the Guarantors further agrees that if at any time all or any part of any payment theretofore applied by any Person to its Guarantee is, or
must be, rescinded or returned for any reason whatsoever, including, without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the Guarantors, such Guarantee shall, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence notwithstanding such application, and such Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(6) Each of the Guarantors shall be
subrogated to all rights of the Holders and the Trustee against the Company in respect of any amounts paid by such Guarantor pursuant to the provisions of this Indenture; provided, however, that such Guarantor, shall not be entitled to enforce or to
receive any payments arising out of, or based upon, such right of subrogation until all of the Securities of such series and the related Guarantees shall have been paid in full or discharged.
Section 10.02 Execution and
Delivery of Guarantees.
To further evidence its Guarantee
set forth in Section 10.01, each of the Guarantors hereby agrees that a notation relating to such Guarantee (the “Notation of Guarantee”), substantially in the form attached hereto as Annex A, shall be endorsed on each Security of the
series entitled to the benefits of such Guarantee authenticated and delivered by the Trustee, which Notation of Guarantee shall be executed by either manual or facsimile signature of an Officer of such Guarantor. Each of the Guarantors hereby agrees
that its Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Security the Notation of Guarantee relating to such Guarantee. If any Officer of such Guarantor, whose signature is on
this Indenture or the Notation of Guarantee no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, the Guarantee of such Security shall be valid nevertheless. The delivery of any Security of a
series entitled to the benefits of a Guarantee under this Article X by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 10.03 Limitation on
Liability of the Guarantors.
Each Guarantor and by its
acceptance hereof each Holder of a Security of a series entitled to the benefits of a Guarantee under this Article X hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any federal or state law to the extent applicable to its Guarantee. To effectuate the foregoing intention, the Holders of a Security entitled to the benefits of such Guarantee and the
Guarantors hereby irrevocably agree that the obligations of each Guarantor under its Guarantee shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and to any collections
from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
Section 10.04 Release of
Guarantors from Guarantee.
(1) Notwithstanding any other
provisions of this Indenture, the Guarantee of any Guarantor may be released upon the terms and subject to the conditions set forth in Article VIII and this Section 10.04. Provided that no Default shall have occurred and shall be continuing under
this Indenture, any Guarantee incurred by a Guarantor pursuant to this Article X shall be unconditionally released and discharged (i) automatically upon (A) any sale, exchange, transfer or other disposition, whether by way of merger, consolidation or
otherwise, to any Person that is not the Company or a Subsidiary of the Company, of all of the Company’s direct or indirect equity interests in such Guarantor and such Guarantor no longer qualifies as a Subsidiary of the Company as a result of such
disposition (provided such sale, exchange or transfer is not prohibited by this Indenture) or (B) the merger of such Guarantor into the Company or any other Guarantor or the liquidation and dissolution of such Guarantor (in each case to the extent
not prohibited by this Indenture) or (ii) following delivery of a written notice of such release or discharge by the Company to the Trustee, upon the release or discharge of all guarantees by such Guarantor of any Debt of the Company other than
obligations arising under this Indenture and any Securities issued hereunder, except a discharge or release by or as a result of payment under such guarantees.
(2) The Trustee shall deliver an
appropriate instrument evidencing any release of a Guarantor from its Guarantee upon receipt of a written request of the Company accompanied by an Officers’ Certificate and an Opinion of Counsel to the effect that the Guarantor is entitled to such
release in accordance with the provisions of this Indenture. If the Guarantor is not so released, it shall remain liable for the full amount of principal of (and premium, if any, on) and interest on the Securities entitled to the benefits of such
Guarantee as provided in this Indenture, subject to the limitations of Section 10.03.
(3) At such time as such Guarantor
does not Guarantee any Debt of the Company or any other Guarantor under a debt facility (other than the Notes) with banks, institutional lenders or investors.
Section 10.05 Contribution.
In order to provide for just and
equitable contribution among the Guarantors, the Guarantors hereby agree, inter se, that in the event any payment or distribution is made by any Guarantor (a “Funding Guarantor”) under its Guarantee, such Funding Guarantor shall be
entitled to a contribution from each other Guarantor (as applicable) in a pro rata amount based on the net assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company’s obligations with respect to the Securities of a series entitled to the benefits of a Guarantee under this Article X or any other Guarantor’s obligations with respect to its Guarantee of such series of Securities.
Article XI
Miscellaneous
Section 11.01 Trust Indenture
Act Controls.
If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by operation of TIA § 318(c), the imposed duties shall control.
Section 11.02 Notices.
Any notice or communication by the
Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), electronic image scan, facsimile or overnight air courier
guaranteeing next day delivery, to the other’s address:
If to the Company or any of the
Guarantors:
Riley Exploration Permian, Inc.
29 E. Reno Avenue, Suite 500
Oklahoma City, Oklahoma 73104
Attention: General Counsel
If to the Trustee:
[●]
The Company, any Guarantor or the
Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if by facsimile or electronic image scan;
and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication mailed
to a Holder shall be mailed by first-class mail, postage prepaid, to the Holder’s address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with
respect to other Holders.
If a notice or communication is
given in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or a Guarantor
mails a notice or communication to Holders, it shall mail a copy to the Company and the other Guarantors, as the case may be, and to the Trustee and each Agent at the same time.
All notices or communications,
including, without limitation, notices to the Trustee, the Company or a Guarantor by Holders, shall be in writing, except as otherwise set forth herein.
Section 11.03 Communication by
Holders with Other Holders.
Holders may communicate pursuant
to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Guarantors, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 11.04 Certificate and
Opinion as to Conditions Precedent.
Upon any request or application by
the Company or a Guarantor to the Trustee to take any action under this Indenture, the Company or such Guarantor, as the case may be, shall, if requested by the Trustee, furnish to the Trustee:
(1) an Officers’ Certificate (which
shall include the statements set forth in Section 11.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which
shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
Section 11.05 Statements
Required in Certificate or Opinion.
Each certificate or opinion with
respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(1) a statement that the Person
making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the
nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion
of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or
not, in the opinion of such Person, such condition or covenant has been complied with.
Section 11.06 Rules by Trustee
and Agents.
The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or the Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 11.07 Legal Holidays.
If a payment date is a Legal
Holiday at a Place of Payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 11.08 No Recourse
Against Others.
A director, officer, manager,
member, employee, stockholder, partner or other owner of the Company, a Guarantor or the Trustee, as such, shall not have any liability for any obligations of the Company under the Securities, for the obligations of any Guarantor under any Guarantee,
or for any obligations of the Company, any Guarantor or the Trustee under this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release shall be part of the consideration for the issue of Securities.
Section 11.09 Governing Law.
THIS INDENTURE, THE SECURITIES
AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 11.10 No Adverse
Interpretation of Other Agreements.
This Indenture may not be used to
interpret another indenture, loan or debt agreement of the Company, any Guarantor or any Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 11.11 Successors.
All agreements of the Company and
each of the Guarantors in this Indenture and the Securities shall bind their successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 11.12 Severability.
In case any provision in this
Indenture or in the Securities or in any Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall, to the fullest extent permitted by applicable law, not in any way be affected
or impaired thereby.
Section 11.13 Counterpart
Originals.
The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 11.14 Table of
Contents, Headings, etc.
The table of contents,
cross-reference table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 11.15 Waiver of Jury
Trial.
EACH OF THE COMPANY, THE
GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION
CONTEMPLATED HEREBY.
Section 11.16 Force Majeure.
In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of
war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 11.17 USA PATRIOT Act.
The parties hereto acknowledge
that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies
each person or legal entity that establishes a relationship or opens an account. The Company and the Guarantors agree that they will provide the Trustee with information about the Company and the Guarantors as the Trustee may reasonably request in
order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
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[NAME(S) OF GUARANTOR(S)] |
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[_________], as Trustee |
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ANNEX A
NOTATION OF GUARANTEE
Each of the Guarantors (which term
includes any successor Person under the Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of, and
premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Company.
The obligations of the Guarantors
to the Holders of Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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[NAME(S) OF GUARANTOR(S)] |
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Exhibit 5.1
One Arts Plaza, 1722 Routh Street, Suite 1500 | Dallas, TX
75201 | T 214.964.9500 | F 214.964.9501
Holland & Knight LLP | www.hklaw.com
May 10, 2024
Riley Exploration Permian, Inc.
29 E. Reno Avenue, Suite 500
Oklahoma City, Oklahoma 73104
|
Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special counsel
to Riley Exploration Permian, Inc., a Delaware corporation (the “Company”), with respect to the preparation of the shelf registration statement on Form S-3 (the “Registration Statement”) filed under the Securities Act of 1933, as
amended (the “Securities Act”), on or about the date hereof with the Securities and Exchange Commission (the “Commission”). The Registration Statement includes (i) a base prospectus (the “Base Prospectus”) relating to the offer
and sale by the Company, pursuant to Rule 415 under the Securities Act, of the following securities, which may be issued from time to time at prices and on terms to be determined at the time of the offering:
(1)
Shares of common stock, par value $0.001 per share, of the Company (“Common Stock”);
(2)
Shares of preferred stock, par value $0.0001 per share, of the Company (“Preferred Stock”);
(3)
Debt securities of the Company, which may be either senior or subordinated and which may be issued in one or more series, consisting of notes, debentures or other evidence of indebtedness (“Debt
Securities”);
(4)
Warrants for the purchase of Common Stock or Preferred Stock (“Warrants”);
(5)
Rights to purchase Common Stock or Preferred Stock (“Rights”);
(6)
Units (“Units” and, together with Common Stock, Preferred Stock, Debt Securities, Warrants and Rights, “Primary Securities”) consisting of two or more of the types of Primary
Securities described above; and
(7)
Such indeterminate amount of Primary Securities as may be issued in exchange for or upon conversion or exercise of, as the case may be, Primary Securities; and
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Riley Exploration Permian, Inc.
May 10, 2024
Page 2
(ii) a resale prospectus (the “Resale Prospectus”)
contained in the Registration Statement which covers the offer and sale of 12,037,813 shares of Common Stock (the “Resale Shares” and together with the Primary Securities, the “Securities”) by the selling stockholders identified therein
(the “Selling Stockholders”).
In connection with the opinions
expressed herein, we have examined, among other things, original counterparts or copies of original counterparts of the following documents:
(i)
The First Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation”).
(ii)
The Third Amended and Restated Bylaws of the Company (the “Bylaws”).
(iii)
The Second Amended and Restated Registration Rights Agreement, dated as of October 7, 2020, by and among the Company and the Selling Stockholders or their assignors, relating to the shares of Common
Stock to be offered and sold by the Selling Stockholders under the Resale Prospectus.
(iv)
The Registration Statement, including the Base Prospectus and the Resale Prospectus.
(v)
The form of Indenture related to certain Debt Securities and incorporated by reference in the Registration Statement (the “Indenture”).
(vi)
The records of corporate proceedings of the Company that have occurred prior to the date hereof with respect to the Registration Statement.
The Indenture, any warrant agreement relating to the
Warrants (a “Warrant Agreement”), any rights agreement relating to the Rights (a “Rights Agreement”), any agreement relating to the Units (a “Units Agreement”), and any definitive purchase, underwriting, sales or similar
agreement entered into in connection with an issuance of Securities (a “Purchase Agreement”) are referred to herein collectively as the “Transaction Documents”. We have also examined originals or copies of such other records of the
Company, certificates of public officials and of officers or other representatives of the Company and agreements and other documents as we have deemed necessary, subject to the assumptions set forth below, as a basis for the opinions expressed below.
In rendering the opinions
expressed below, we have assumed:
(i)
The genuineness of all signatures (whether manual, electronic or otherwise) and, to the extent that a signature on a document is manifested by electronic or similar means, such signature has been
executed or adopted by a signatory with an intent to authenticate and sign the document.
(ii)
The authenticity of the originals of the documents submitted to us.
Riley Exploration Permian, Inc.
May 10, 2024
Page 3
(iii)
The conformity to authentic originals of any documents submitted to us as copies.
(iv)
As to matters of fact, the truthfulness of the representations made or otherwise incorporated in the Registration Statement and the other Transaction Documents and representations and statements
made in certificates or web sites of public officials and officers or other representatives of the Company.
(v)
That, at the time when any Primary Security is issued by the Company:
(A)
(1)
if such Primary Security is a Debt Security, the applicable Indenture;
(2)
if such Primary Security is a Warrant, a Warrant Agreement;
(3)
if such Primary Security is a Right, a Rights Agreement;
(4)
if such Primary Security is a Unit, a Units Agreement; and
(5)
any applicable Purchase Agreement,
shall have been duly executed and delivered by the
parties thereto and constitute valid, binding and enforceable obligations of each party thereto and such Primary Security shall have been issued pursuant to the applicable foregoing agreements.
(B)
The Company is duly incorporated and validly existing under the laws of the State of Delaware.
(C)
The Company shall have full corporate power to execute, deliver and perform the applicable Transaction Documents to which it is a party and issue such Primary Security, and shall have duly executed
and delivered such applicable Transaction Documents.
(D)
The execution, delivery and performance by the Company of the applicable Transaction Documents to which it is a party and the issuance of such Primary Security (and, in the case of Rights and Units,
of the Primary Securities that are components of such Rights and Units) and any Primary Security that may be issuable upon the exercise, conversion or exchange thereof, shall have been duly authorized by all necessary corporate action and shall not
contravene the Certificate of Incorporation or the Bylaws.
Riley Exploration Permian, Inc.
May 10, 2024
Page 4
(E)
The execution, delivery and performance by the Company of the applicable Transaction Documents to which it is a party and the issuance of such Primary Security, will not:
(1)
violate any law, rule or regulation applicable to it (including without limitation federal and state securities laws), or
(2)
result in any conflict with or breach of any agreement or document binding on it.
(F)
No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (or, to the extent the same is required under any agreement or document
binding on the Company, any third party) shall be required for the due execution, delivery or performance by the Company of any applicable Transaction Document to which it is a party or for the issuance of such Primary Security by the Company, or, if
any such authorization, approval, action, notice or filing is required, it shall have been duly obtained, taken, given or made and shall be in full force and effect.
(G)
The Registration Statement, and any amendments thereto (including all necessary post-effective amendments), shall have become effective under the Securities Act.
(H)
A supplement to the Base Prospectus (a “Prospectus Supplement”), shall have been prepared and filed with the Commission describing such Primary Security.
(I)
Such Primary Security shall have been issued and sold in the manner stated in the Registration Statement and the appropriate Prospectus Supplement.
(J)
If such Primary Security is Common Stock or Preferred Stock, the necessary number of applicable shares shall have been duly authorized and available for issuance pursuant to the Certificate of
Incorporation.
(K)
Any Primary Security issuable upon conversion, exchange or exercise of such Primary Security shall have been duly authorized, created and, if appropriate, reserved for issuance upon such conversion,
exchange or exercise.
(L)
If such Primary Security is a series of Preferred Stock or is convertible into or exchangeable or exercisable for a series of Preferred Stock, the Board of Directors of the Company (or a committee
thereof acting pursuant to authority delegated to it by the Board of Directors) shall have duly adopted a resolution establishing and designating such series and fixing and determining the preferences, limitations and relative rights of such series
and a certificate of designation with respect to such series shall have been duly filed with the Secretary of State of the State of Delaware.
(M)
The applicable Transaction Documents relating to such Primary Security shall be governed by the laws of the State of New York.
Riley Exploration Permian, Inc.
May 10, 2024
Page 5
(N)
Such Primary Security, if other than Common Stock or Preferred Stock, and if other than book entry or uncertificated, shall have been duly executed and delivered by the Company and, if applicable,
duly authenticated or countersigned pursuant to the applicable Transaction Document.
(O)
If such Primary Security is other than Common Stock, the terms of such Security (and any Primary Securities that are components thereof or issuable upon the exercise, conversion or exchange thereof)
shall have been duly established in conformity with the applicable Transaction Document.
(P)
The Company shall not have been induced by fraud to enter into any Transaction Document.
(vi)
That, at the time when any Resale Shares are offered by the Selling Stockholders under the Resale Prospectus:
(A)
The Company is duly incorporated and validly existing under the laws of the State of Delaware.
(B)
The Registration Statement, and any amendments thereto (including all necessary post-effective amendments), shall have become effective under the Securities Act.
(C)
A Prospectus Supplement to the Resale Prospectus shall have been prepared and filed with the Commission describing such Resale Shares.
(D)
The Resale Shares offered shall have been sold in the manner stated in the Registration Statement and the appropriate Prospectus Supplement.
We have not independently established the validity of
the foregoing assumptions.
Based upon the foregoing and
subject to the qualifications and limitations herein set forth herein, we are of the opinion that:
1.
With respect to any share of Common Stock being registered as a Primary Security under the Registration Statement, when:
(a)
a certificate representing such share shall have been duly executed, countersigned, registered and delivered (or, if such share is non-certificated, such share shall have been properly issued) either (i) in accordance
with the applicable Purchase Agreement or (ii) upon conversion, exchange or exercise of any other Primary Security in accordance with the terms of such other Primary Security or the agreement governing such other Primary Security and providing for
the conversion, exchange or exercise thereof, and
Riley Exploration Permian, Inc.
May 10, 2024
Page 6
(b)
the consideration therefor provided for in the applicable Purchase Agreement or in connection with such conversion, exchange or exercise, as applicable (in either case not less than the par value of such share of
Common Stock), shall have been paid,
such share shall have been validly issued, fully paid
and non-assessable.
2.
With respect to any share of any series of Preferred Stock being registered as a Primary Security under the Registration Statement, when:
(a)
a certificate representing such share shall have been duly executed, countersigned, registered and delivered (or, if such share is non-certificated, such share shall have been properly issued) either (i) in accordance
with the applicable Purchase Agreement or (ii) upon conversion, exchange or exercise of any other Primary Security in accordance with the terms of such other Primary Security or the agreement governing such other Primary Security and providing for
the conversion, exchange or exercise thereof, and
(b)
the consideration therefor provided for in the applicable Purchase Agreement or in connection with such conversion, exchange or exercise, as applicable (in either case not less than the par value of such share of such
series of Preferred Stock), shall have been paid,
such share shall have been validly issued, fully paid,
and non-assessable.
3.
With respect to any Debt Security being registered as a Primary Security under the Registration Statement, when:
(a)
the applicable Indenture shall have been duly qualified under the Trust Indenture Act of 1939, as amended, and
(b)
the consideration for such Debt Security provided for in the applicable Purchase Agreement shall have been paid,
such Debt Security shall have been validly issued and
shall constitute valid and binding obligations of the Company, enforceable against the Company in accordance with its terms.
4.
With respect to any Warrant being registered as a Primary Security under the Registration Statement, when:
(a)
the terms of such Warrant and of its issuance and sale shall have been duly established in conformity with the applicable Warrant Agreement,
(b)
the consideration provided for in the applicable Purchase Agreement shall have been duly paid, and
(c)
the exercise price payable in upon exercise thereof shall be at least equal to the aggregate par value of the Preferred Stock or Common Stock to be issued upon such exercise,
Riley Exploration Permian, Inc.
May 10, 2024
Page 7
such Warrant shall have been validly issued and shall
constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
5.
With respect to any Right or Unit being registered as a Primary Security under the Registration Statement, when:
(a)
the terms of such Right or Unit and of its issuance and sale shall have been duly established in conformity with the applicable Rights Agreement, in the case of such Right, or the applicable Units Agreement, in the
case of such Unit, and
(b)
the consideration provided for in any applicable Purchase Agreement shall have been duly paid and, if Preferred Stock or Common Stock shall be components of such Right or Unit, shall be in an amount at least equal to
the aggregate par value of the Preferred Stock or Common Stock that are components of such Right or Unit,
such Right or Unit, as applicable, shall have been
validly issued and shall constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
6.
The Resale Shares are validly issued, fully paid and non-assessable.
The opinions set forth above are
subject to the following qualifications and exceptions:
(a)
Our opinions are limited to the General Corporation Law of the State of Delaware (in each case including all reported judicial decisions interpreting such laws), and we do not express any opinion herein concerning any
other laws.
(b)
Our opinions are subject to bankruptcy, insolvency, fraudulent transfer, reorganization, receivership, moratorium or similar laws affecting the rights and remedies of creditors, stakeholders, or classes or groups of
creditors or stakeholders generally.
(c)
Our opinions are subject to general principles of equity exercisable in the discretion of a court (including without limitation obligations and standards of good faith, fair dealing, materiality and reasonableness and
defenses relating to unconscionability or to impracticability or impossibility of performance).
(d)
We express no opinion with respect to the enforceability of disclaimers, waivers, releases, indemnities, hold harmless provisions, exculpations, provisions for contribution and liquidated damages or payments that would
constitute penalties, and other provisions, however expressed, altering or eliminating the rights, liabilities or remedies a party otherwise would have, or any provisions having the effect of modifying a statute of limitations.
Riley Exploration Permian, Inc.
May 10, 2024
Page 8
This opinion letter is rendered to
you in connection with the transactions contemplated by the Registration Statement. This opinion letter has been prepared, and is to be understood, in accordance with customary practice of lawyers who regularly give and lawyers who regularly advise
recipients regarding opinions of this kind, is limited to the matters expressly stated herein and is provided solely for purposes of complying with the requirements of the Securities Act, and no opinions may be inferred or implied beyond the matters
expressly stated herein. The opinions expressed herein are rendered and speak only as of the date hereof and we specifically disclaim any responsibility to update such opinions subsequent to the date hereof or to advise you of subsequent developments
affecting such opinions.
We consent to the filing of this
opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference of our firm under the caption “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 and Section 11 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
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Respectfully submitted, |
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/s/ Holland & Knight LLP |
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|
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HOLLAND & KNIGHT LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration
Statement of our reports dated March 6, 2024, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting of Riley Exploration Permian, Inc. (the Company) appearing in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2023.
We also consent to the reference to us under the caption “Experts” in the Prospectus.
| /s/ BDO USA, P.C. |
|
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| Houston, Texas |
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| May 10, 2024 |
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Exhibit 23.2
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
AND GEOLOGISTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-3 (the “Registration Statement”) of Riley Exploration Permian, Inc. (the “Company”) of our report prepared for the Company dated January 25, 2024, with respect to estimates of reserves and future net revenue of the Company as of
December 31, 2023. We also hereby consent to all references to our firm or such report included or incorporated by reference into the Registration Statement.
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Very truly yours, |
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|
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/s/ Ryder Scott Company, L.P. |
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|
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RYDER SCOTT COMPANY, L.P. |
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TBPELS Firm Registration No. F-1580 |
Denver, Colorado
May 10, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Riley Exploration Permian, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
| |
Security
Type
|
Security
Class
Title
|
Fee
Calculation
or Carry
Forward
Rule
|
Amount
Registered
|
Proposed
Maximum
Offering
Price Per
Unit
|
Maximum
Aggregate
Offering
Price
|
Fee
Rate
|
Amount of
Registration
Fee
|
Carry
Forward
Form
Type
|
Carry
Forward
File
Number
|
Carry
Forward
Initial
Effective
Date
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward
|
|
Newly Registered Securities*
|
|
Fees to be Paid
|
Equity
|
Common Stock, par value $0.001 per share
|
457(o)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|
|
|
|
|
Equity
|
Preferred Stock, par value $0.0001 per share
|
457(o)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|
|
|
|
|
Debt
|
Debt Securities
|
457(o)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|
|
|
|
|
Other
|
Warrants
|
457(o)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|
|
|
|
|
Other
|
Units
|
457(o)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|
|
|
|
| |
Other
|
Rights
|
457(o)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|
|
|
|
| |
Unallocated
(Universal Shelf)
|
Unallocated (Universal Shelf)
|
457(o)
|
(1)
|
(2)
|
$77,694,037.64
|
0.00014760
|
$11,467.64
|
|
|
|
|
|
Fees to be Paid
|
Equity
|
Common Stock, par value $0.001 per share
|
Rule 457(c)
|
12,037,813 (3)
|
$25.46 (4)
|
$306,482,718.98 (4)
|
0.00014760
|
$45,236.85
|
|
|
|
|
|
Fees Previously Paid
|
—
|
—
|
—
|
—
|
—
|
—
|
|
—
|
|
|
|
|
| |
|
Carry Forward Securities
|
|
Carry Forward Securities
|
Equity
|
Common Stock, par value $0.001 per share
|
415(a)(6)
|
(5)
|
|
—
|
|
|
S-3
|
333-255104
|
May 12, 2021
|
—
|
|
Equity
|
Preferred Stock, par value $0.0001 per share
|
415(a)(6)
|
(5)
|
|
—
|
|
|
S-3
|
333-255104
|
May 12, 2021
|
—
|
|
Unallocated
(Universal Shelf)
|
Unallocated (Universal Shelf)
|
415(a)(6)
|
(5)
|
|
$172,305,962.36
|
|
|
S-3
|
333-255104
|
May 12, 2021
|
$18,798.58
|
| |
Total Offering Amounts
|
|
$250,000,000
|
|
$56,704.49
|
|
|
|
|
| |
Total Fees Previously Paid
|
|
|
|
—
|
|
|
|
|
| |
Total Fee Offsets
|
|
|
|
$45,236.85
|
|
|
|
|
| |
Net Fee Due
|
|
|
|
$11,467.64
|
|
|
|
|
Table 2: Fee Offset Claims and Sources
| |
Registrant or Filer Name
|
Form or Filing Type
|
File Number
|
Initial Filing Date
|
Filing Date
|
Fee Offset Claim
|
Security Type Associated with Fee Offset Claimed
|
Security Title Associate with Fee Offset Claimed
|
Unsold Securities Associated with Fee Offset Claimed
|
Unsold Aggregate Offering Amount Associated with Fee Offset Claimed
|
Fee Paid with Fee Offset Source
|
| |
|
Fees Offset Claims
|
Riley Exploration Permian, Inc.
|
S-3
|
333-255104
|
April 5, 2021
|
|
$46,604.81 (6)
|
Equity
|
Common Stock
|
15,321,922
|
$427,175,185.36
|
|
|
Fees Offset Sources
|
Riley Exploration Permian, Inc.
|
S-3
|
333-255104
|
|
April 5, 2021
|
|
|
|
|
|
$45,236,85 (6)
|
|
(1)
|
The registered hereunder include such indeterminate number of (a) shares of common stock, $0.001 par value per share (“Common Stock”), (b) shares of preferred stock, $0.0001 par value per
share (“Preferred Stock”), (c) debt securities, (d) warrants to purchase Common Stock or Preferred Stock, (e) rights to purchase Common Stock or Preferred Stock, and (f) units consisting of some or all of these securities, as may be sold from
time to time by Riley Exploration Permian, Inc. (the “Registrant”). There are also being registered hereunder an indeterminate number of shares of Common Stock and Preferred Stock as may be issued upon conversion, exchange or exercise of any
securities that provide for such issuance or pursuant to the anti-dilution provisions of any such securities. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also
cover any additional shares of Common Stock or Preferred Stock as may be issued to prevent dilution as a result of stock splits, stock dividends or similar transactions. The aggregate maximum offering price of all unallocated securities
issued under this Registration Statement will not exceed $250,000,000.
|
|
(2)
|
The proposed maximum offering price per security and maximum aggregate offering price per class of securities will be determined, from time to time, by the Registrant in connection with
the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to Instruction 2.A.iii.b. to the Instructions to the Calculation of Filing Fee Tables and Related Disclosure of
Item 16(b) of Form S-3.
|
|
(3)
|
Comprised of 12,037,813 shares of Common Stock issued to the selling stockholders named in the Registration Statement.
|
|
(4)
|
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) under the Securities Act. The price per share and aggregate offering price are
based on the average of the high and low prices of the Common Stock on May 6, 2024 as reported on the NYSE American.
|
|
(5)
|
The Registrant previously filed a Registration Statement on Form S-3 with the Securities and Exchange Commission (the “SEC”) on April 7, 2021 (File No. 333-255104) (the “Prior
Registration Statement”), which was declared effective on May 12, 2021, that registered $250,000,000 of securities to be offered by the Registrant from time to time. Pursuant to Rule 415(a)(6) under the Securities Act, this Registration
Statement includes $172,305,962.36 of unsold securities (the “Unsold Primary Securities”) that were previously registered on the Prior Registration Statement. In connection with the registration of the Unsold Primary Securities on the Prior
Registration Statement, the Registrant paid a filing fee of $18,798.58 (calculated at the filing fee rate in effect at the time of the filing of the Prior Registration Statement). The Registrant is not required to pay any additional fee with
respect to the Unsold Primary Securities being included in this Registration Statement in reliance on Rule 415(a)(6), because such Unsold Primary Securities (and associated fees) are being moved from the Prior Registration Statement to this
Registration Statement. Accordingly, the Amount of Registration Fee in the table above reflects only the registration fee attributable to the $77,694,037.64 of new securities registered on this Registration Statement. The registration fee
previously paid by the Registrant relating to the Unsold Primary Securities included on this Registration Statement will continue to be applied to such Unsold Primary Securities. During the grace period afforded by Rule 415(a)(5) under the
Securities Act, the Registrant may continue to offer and sell under the Prior Registration Statement the Unsold Securities being registered hereunder. To the extent that, after the filing date hereof and prior to the effectiveness of this
Registration Statement, the Registrant sells any such Unsold Primary Securities pursuant to the Prior Registration Statement, the Registrant will identify in a pre-effective amendment to this Registration Statement the updated amount of
Unsold Securities from the Prior Registration Statement to be included in this Registration Statement pursuant to Rule 415(a)(6). Pursuant to Rule 415(a)(6), the offering of the Unsold Primary Securities under the Prior Registration Statement
will be deemed terminated as of the date of effectiveness of this Registration Statement.
|
|
(6)
|
The Prior Registration Statement registered 16,721,922 shares of Common Stock of the Registrant in a secondary offering with an aggregate offering price estimated per Rule 457(c) of
$466,207,185.36, of which 15,321,922 shares remain unsold (the “Unsold Secondary Shares”). Pursuant to Rule 457(p) under the Securities Act, the registrant hereby applies $45,236.85 of the $46,604.81 registration fee previously paid in
connection with the Prior Registration Statement with respect to the Unsold Secondary Shares to offset the $45,236.85 registration fee that is payable in connection with the registration of the shares of the Registrant’s Common Stock for
resale by the selling stockholders named herein. Accordingly, there is no filing fee required herewith with respect to the secondary offering.
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